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<s>[INST] Summarize the judgementil Appeal No. 543 of 1963.
Appeal from the judgment and decree, dated October 10, 1958 of the Madras High Court in O.S. Appeal No. 1 of 1954.
209 T. V. R. Tatachari, for the appellant.
M. Sundaram, K. Jayaram and R. Thiagarajan, for respondent No. 1.
The Judgment of the Court was delivered by Mudholkar, J.
This is an appeal from a judgment of the Madras High Court modifying the decree passed by a single Judge of that High Court in a suit for recovery of money.
Admittedly the appellant had executed a promissory note at Madras for a sum of Rs. 10,600 in favour of one Narayana Iyer, since deceased, on January 28, 1946 and agreed to pay interest on that amount at 12% p.a.
It is also admitted that no repayment was made by the appellant.
Narayana Iyer, therefore, instituted a suit against him for recovery of a sum of Rs. 14,402 5 0, which includes interest upon the sum of Rg. 10,600.
The appellant contended that the promissory note was only a renewal of a previous promissory note which itself as well as three earlier promissory notes were in renewal of the original promissory note for Rs. 1,000 executed in the year 1930.
According to the appellant that promissory note was executed by his brother but was renewed by the appellant himself in the year 1932; that this promissory note was renewed on January 11, 1937 by him and that at that time Narayana Iyer had given an additional amount of Rs. 350 to him.
The amount for which his promissory note was executed was Rs. 4,000 and it included interest on the first advance up to that date.
Narayana lyer, however, instead of taking a promissory note in his own name took it in the name of General Bank which is a private limited company which admittedly was under his control.
The debt was renewed in favour of the General Bank on January 3, 1940 by executing a fresh promissory note for Rs. 5,650 on that date and again on September 13, 1944 when it was renewed by obtaining a promissory note for Rs. 9,275.
According to the respondents Narayana lyer paid off the dues to the General Bank at the instance of the appellant and obtained a promissory note in his favour for Rs. 10,600.
As the amount was not paid, Narayana lyer instituted the suit out of which this appeal arises.
He, however, died during the pendency of the suit and is now represented by his sons, the respondents.
Upon the aforesaid facts and the further fact that the appellant is an agriculturist he claimed that he was entitled to the benefits of the Madras Agricul 210 turists Relief Act IV of 1938.
He claimed that under the provisions of that Act he was entitled to have the debts scaled down.
His plea was upheld by the learned single Judge of the High Court who held that the respondents after scaling down the interest as provided in the Act were entitled to a sum of Rs. 1,350 together with interest thereon at 6 1/4% from March 22, 1938 up to the date of the decree.
In the appeal preferred by the respondents under the Letters Patent the appeal court held that the respondents were entitled to a decree for the entire amount for which the promissory note was executed, that is, Rs. 10,600 together with interest thereon at 61% p.a.
In coming to this conclusion the appeal court placed an interpretation on explanation III to section 8 of the Act different from that placed by the learned single Judge.
Section 7 of the Act provides that all debts payable by an agriculturist at the commencement of the Act shall be scaled down in accordance with the provisions of Chapter II.
The Act received assent of the Governor General on March 11, 1938 and was first published in the Official Gazette on March 22, 1938 and must be deemed to have come into force as from the former date.
Section 8 provides for the scaling down of debts incurred before December 1, 1932.
Sub section (1) thereof says that all interest outstanding on the 1st of October, 1937 against an agriculturist shall be deemed to be discharged and only the principal outstanding on that date shall be deemed to be the amount repayable by the agriculturist debtor.
Sub sections (2), (3) and (4) of that Act deal with classes of cases in which payments have been made from time to time by the debtor to the creditor.
It is not necessary to refer to them because even according to the appellant he had not made any repayments before the execution of the promissory note in the suit.
It is common ground that explanations 1, II and IV have no application to the present case.
The only explanation which is relevant is explanation III.
This explanation has been twice amended.
The original explanation was as follows : "Where a debt has been renewed or included in a fresh document in favour of the same creditor the principal originally advanced by the creditor together with such sums, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable by the agriculturist under this section.
" 211 The amending Act 23 of 1948 substituted for it the following "Where a debt has been renewed or included in a fresh document executed before or after the commencement of this Act, whether by the same or a different debtor and whether in favour of the same or a different creditor the principal originally advanced together with such sums, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable under this section.
" This was amended by Madras Act 24 of 1950 and now runs thus : "Where a debt has been renewed or included in a fresh document executed before or after the commencement of this Act, whether by the same debtor or by his heirs, legal representatives or assigns or by any other person acting on his behalf or in his interest and whether in favour of the same creditor or of any other person acting on his behalf or in his interest, the principal originally advanced together with such items, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable under this section.
" It is common ground that it is the explanation which was amended by Act 24 of 1950 which applies to the case before us.
It will be seen that under the original explanation the benefit of sub section
(1) of section 8 was available only in cases where the debt had been renewed in favour of the same, creditor as the one from whom it was originally obtained.
It is contended on the appellant 's behalf that by virtue of the amendment of 1948 the benefit of the provision was available even if the creditor in whose name the debt was renewed was different from the one who had originally advanced the loan and also even where the original debtor was different from the one who executed the document under which the debt was renewed.
It is pointed out that the second amendment was necessitated by reason of certain decisions of the Madras High Court holding that the words "different creditor" in Explanation III to section 8 did not include a third party in whose favour the debtor had executed a document renewing an earlier debt.
According to learned counsel this interpretation defeated the object which the Legislature had in view in amending Explanation III in 1948 and that, therefore, that explanation was amended a second time to make it 212 clear that once it is found that a document was in renewal of a previous debt the benefit of section 8 would be available to the promisor whether the person renewing it or the person in whose favour it is renewed is different.
It is unnecessary for us to consider what the reason for amending Explanation III by Act 23 of 1948 was.
All that we are concerned with is the explanation as amended by Act 24 of 1950.
By virtue of this explanation the benefit of section 8(1) would be available in a case where (a) a debt has been renewed or included in a fresh document; and where that is done (b) (i) by the same debtor, or (ii)by his heirs, legal representatives or assigns; or (iii)by any other person acting on his behalf; or (iv) by any other person acting in his interest.
Such a transaction will be entitled to the benefit of the Act if the renewal or fresh agreement is in favour of (a) the same creditor; or (b) of any other person acting in his behalf or (c) any other person acting in his interest.
In the instant case though the debtor in the transaction of 1930 was stated to be the appellant 's brother, in all subsequent transactions it was the appellant who was the debtor It would follow, therefore, that the requirements of the explanation pertaining to the debtor are satisfied in the sense that the same person has been the debtor.
The second requirement of the explanation is with respect to the creditor.
As already stated, after 1940 it was not Narayana lyer but the General Bank which was the creditor up to January 28, 1946 on which date the promissory note in suit was executed by the appellant in his favour.
The General Bank has an independent existence and even though the controlling interest therein was with Narayana lyer and his family it would not be correct to say that there is an identity between that bank and Narayana lyer.
Mr. Tatachari, however, contended that it was Narayana lyer who was the original creditor and that as he had full power of management and control with respect to the General Bank he went on obtaining promissory notes from the appellants, sometimes in his own favour and some times in favour of the Bank.
For all practical purposes, therefore, according to the appellant, the creditor has been the same throughout.
We cannot accept this argument in the absence of any material to show that the Bank acted on his behalf when the appellant executed the promissory notes, dated January 3, 1940 ,and September 30, 1944 in favour of the Bank.
The contention 213 of Mr. Tatachari then is that the Bank in obtaining those promissory notes in renewal of the original debt was acting in his interest and that, therefore, the explanation was available to the appellant.
In the High Court it was urged that when the appellant executed the promissory note dated January 28, 1946 Narayana lyer acted in the interest of the Bank.
The ground on which the argument advanced before the High Court and the argument advanced before us is, however, the same.
It is that the words "in the interest of" mean "for the benefit of".
Even assuming that that is the meaning to be given to these words the argument of learned counsel cannot be sustained on the facts of this case.
It has been found as a fact by the appeal court that Narayana Iyer actually paid Rs. 10,600 by cheque in favour of the General Bank Ltd., to the credit of the appellant.
It has also been found by the High Court that Narayana lyer paid off the debt due from the appellant to the Bank at the request of the appellant for discharging the appellant 's liability upon the promissory note executed by him in favour of the Bank.
These findings of the High Court have not been seriously challenged before us and in our opinion quite rightly.
In view of these findings the contention of learned counsel that the payment was made "in the interest of the creditor" cannot be sustained.
In the circumstances, therefore, we uphold the decree of the appeal court and dismiss the appeal with costs.
Appeal dismissed.
[/INST]The State Government is empowered under section 3(1) to issue a notification declaring that the estate specified therein has passed to the State, but the notification must be in respect of the ' property which is defined as an estate in a. 2(g) and that estate must be held by an intermediary as defined in section 2(h).
In order to be an intermediary according to the definition in section 2(h) the person must be, among other things, "a Zamindar, Ilaquedar, Kherposhdar or Tagirdar within the meaning of Wajibul arz or any Sanad, deed or other instrument." 843 Held, that the proprietors of Hamgir and Serapgarh properties were not intermediaries as defined in section 2(h) and their respective properties were not "estates" within the meaning of section 2(g) and therefore Government had no jurisdiction or authority to issue any notification under section 3 with respect to their properties.
Held (Per PATANJALI SASTRI C.J.,DAS and GHULAM HASAN JJ., MAHAJAN and BOSE JJ., dissenting), as respects the Nagra Zamindari that the Zamindar (appellant) was an intermediary as defined in a. 2(h) of the Act and his estate was an estate within the meaning of section 2(g) because the predecessor in title of the present Zamindai had acknowledged the overlordship of Raja of Gangpur and there fore the State Government had jurisdiction to issue a notification under section 3 of the Act declaring that the estate had passed to and become vested in the State.
Per MAHAJAN and BosE JJ.
The words "deed" and "other instruments" in a. 2(h) are not to be read ejusdem generis with "Sanad" and thus are not confined to a document of title like a Sanad in which one party creates or confers a zamindari estate on another.
The words must be read disjunctively and be inter.
preted according to their ordinary meaning.
With reference to merged territories an intermediary neither "includes" a zamindar nor "means" a zamindar, but means a zamindar "within the meaning of" (1) the Wajib ul arz (2) any Sanad (3) any deed or (4) of any others instrument.
The kind of zamindar referred to in section 2(h) is one who may be called "a true intermediary" within the meaning of the four documents set out there, that is to may, persons who hold an interest in the land between the raiy at and the overlord of the estate.
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<s>[INST] Summarize the judgementAppeal No. 583 of 1962.
Appeal by special leave from the judgment and order, dated November 23, 1959, of the Allahabad High Court in Special Appeal No. 524 of 1958.
section V. Gupte, Solicitor General, Guru Dayal Srivastava and T. Satyanarayana, for the, appellant.
B. R. L. Iyengar and A. G. Ratnaparkhi, for respondents.
Nos. 1, 2, 4, 8 & 12 to 14.
C. B. Agarwal and O. P. Rana, for Intervener No. 1.
A. V. Rangam, for Intervener No. 2. G. C. Kasliwal, Advocate General, for the State of Rajasthan and R. N. Sachthey, for Intervener No. 3.
I. N. Shroff, for Intervener No. 4.
The Judgment of GAJENDRAGADKAR, C.J., HIDAYATULLAH, SHAH AND SIKRI, JJ was delivered by HIDAYATULLAH, J. WANCHOO, J.delivered a dissenting Opinion.
Hidayatullah J. The Municipal Board, Hapur (shortly the appellant Board) passed a Special Resolution (No. 296) on September 28, 1956 imposing water tax in Hapur from April 1, 1957 and a notification by the Government of Uttar Pradesh was.
Published in the Uttar Pradesh Gazette under section 135(2) of the U. P. Municipalities Act (Act 2 of 1916) dated December 11, 1956 notifying the resolution.
Fifteen house owners of Hapur who received notices from the appellant Board for the payment of the tax assessed in respect of their houses, petitioned to the High Court at Allahabad under article 226 of the Constitution and asked for a writ or order preventing the appellant Board from realising the tax.
Their contention was that the tax was illegal as it was imposed in contravention of the provisions of the Munici palities Act.
The main grounds of objection were (a) that the, resolution of the appellant Board framing the proposal was not published in a local paper of Hapur printed in Hindi, and (b) that the rules framed for the imposition of the tax did not accompany the resolution which was affixed on the notice board at the office of the appellant Board in purported compliance with the requirements for publication.
The imposition was also challenged on the ground that articles 14 and 19 of the Constitution were violated 954 The petition was heard by Mr. Justice James who decided all the points against the appellant Board.
He held that the tax was illegal inasmuch as the mandatory requirements of the Municipalities Act were not complied with by the appellant Board while imposing the tax, and that section 135(3) of the Act (which cures all defects in the imposition of tax by making the notification of Government conclusive evidence of the legality of the imposition) was ultra vires article 14 of the Constitution because it created a bar against proof and left no remedy to the tax payers thereby making a discrimination between them and other litigants.
He further held that the sub section, by making Government the sole judge of compliance with the Act conferred judicial power on Government contrary to the intendment of the Constitution.
The appellant Board was accordingly ordered not to collect the tax from the petitioners.
The appellant Board appealed under the Letters Patent.
The Divisional Bench hearing the special appeal agreed with Mr. Justice James.
The present appeal has been filed by special leave of this Court.
Since it will be necessary to 'consider whether the appellant Board complied with the requirements of the Municipalities Act or not and, if not, to what extent, it is necessary to analyse the provisions in the Municipalities Act for the imposition of a tax and then to follow that up with a nar ration of the steps taken by the appellant Board.
Section 128 of the Municipalities Act confers on the Munici palities in Uttar Pradesh the power to levy taxes and enumerates the kinds of taxes.
One such tax mentioned in cl.
(x) of sub section (1) of the section reads : "a water tax on the annual value of the building or land or both".
This was the tax which the Municipality had attempted to impose in Hapur.
There can be no question that the appellant Board had the competence to impose this tax and so the first question is whether it went about the business in the wrong way and, if it did, what is the effect.
Section 129 specifies certain restrictions on the imposition of water tax.
We need not refer to them because no objection was raised that the restrictions there prescribed had not been observed.
Sections 131 to 135 lay down the procedure for the imposition of the tax.
Section 131 provides that when a Board desires to impose a tax it shall, by special resolution, frame a proposal specifying the tax, the person or class of persons to be made liable and the description of the property or other taxable things or circumstances in respect of which they are to be made liable, the amount or rate leviable from such person or class of persons and any other matter which the State Government may require 955 by rules to be specified.
The same section requires the Board to prepare a draft of the rules which it desires the State Government to make and the Board is required to publish the proposal, the draft rules so framed, and a notice in the prescribed form, in the manner laid down by section 94.
That section says that every resolution passed by a Board at a meeting, shall, as soon thereafter as may be, be published in a local paper published in Hindi and where there is no such local paper, in such manner as the State Government may, by general or special order, direct.
After the notice etc. are published, section 132 enables any inhabitant of the Municipality to, submit to the Board an objection in writing to all or any of the proposals framed by it and the Board is required to consider the objection so submitted and to pass order thereon by special resolution.
If the Board decides to modify its proposals or any of them it must publish the modified proposals and (if necessary) the revised draft rules with a fresh notice, for objections.
Any new objection so received has to be dealt with in the same way.
After the Board has finally settled the proposals, it has to submit the proposals, the objections (if any) and the orders made in connection therewith, to the prescribed authority.
The prescribed authority under section 2(17) (ii) means an officer or a body corporate appointed by the State Government in this behalf by notification in the official Gazette, and, if no such officer or body corporate is appointed, the Commissioner.
It may be stated that the proposal we are considering was accepted by the Commissioner.
Then follows section 133 and it gives power to the State Government or the prescribed authority to reject, sanction or modify any proposal.
When the proposals are sought to be modified they have to be referred back to the Board for further consideration.
When the proposals are sanctioned by the State Government or the prescribed authority section 134 of the Act requires that the State Government, after taking into consideration the draft rules submitted by the Board, shall proceed to make such rules, under its powers under section 296 of the Act, in respect of the tax, as the Government may consider necessary.
After the rules have been made, the order of sanction and a copy of the rules are sent to the Board and thereupon the Board by special resolution directs the imposition of the tax with effect from a date which it specifies in the resolution.
This is stated in section 135 which may be reproduced here fully "135.
Imposition of tax, (1) A copy of the resolution passed under Section 134 shall be submitted to the State Government, 956 if the tax has been sanctioned by the State Government, and to the Prescribed Authority, in any other case.
(2) Upon receipt of the copy of the resolution the State Government, or Prescribed Authority, as the case may be, shall notify in the official Gazette, the imposition of the tax from the appointed date, and the imposi tion of a tax shall in all cases be subject to the condition that it has been so notified.
(3) A notification of the imposition of a tax under sub section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act.
" The appellant Board passed a special resolution in terms of section 131 (1) of the Act.
The publication of the resolution was made by affixing a copy of the resolution on the notice board as provided by a notification dated July 5, 1916 and by beat of drum in the town of Hapur.
The resolution was, however, not published in a local paper published in Hindi as required by section 94(3) of the Act.
It is admitted that two Hindi weeklies entitled "Janmat" and "Bharatvarsh" and one Hindi daily entitled "Vyapar" were published at that time at Hapur.
The appellant Board did not publish the notice etc.
in these journals because, in its opinion, none of these papers was a suitable local paper having wide circulation in the town at the time.
Notification of the 5th July, 1916 provides that, where, in a Municilpality, there is no local paper, a copy of every resolution passed by a Board at a meeting shall, within ten days from the date of the meeting, be pasted up and for thirty days be kept pasted up on a notice board to be exhibited for public information at the building in which the meetings of the Board are ordinarily held.
Two objections against the tax found favour with the High Court.
The first objection arose from the non observance of section 94(3) which, as already noticed, requires that the publication of the proposal etc.
should be in a local newspaper published in Hindi.
The High Court held that there was no need to take recourse to the notification of the 5th of July 1916, because the first part of section 94(3) could be complied with.
The next objection against the tax was that even if the special Resolution under section 131 was properly published, the rules which ought to accompany the Resolution were not exhibited.
The appellant Board claimed that the court was precluded from making an enquiry by reason of section 135(3) which made the notification conclusive evidence that 957 the tax was imposed in accordance with the provisions of the Municipalities Act.
The respondents met this by challenging the legality of the sub section.
They pleaded that it was discriminatory inasmuch as it did not allow one set of litigants to prove their allegations as against the general body of litigants and further that there was a conferral of judicial functions on the legislature which was contrary to the separation of powers under the Constitution.
The High Court accepted these contentions also.
There can be no doubt that the language of section 135(3) is as wide as it is peremptory.
Read literally it can lead to the conclusion that even an illegal tax cannot be questioned.
Prima facie, it appears that even if a Municipal Board goes outside the categories of taxes mentioned in section 128 and if the Government is persuaded to notify the imposition, all will be well. 'This cannot be the intent and hence not the meaning.
We must, therefore, see if the words are susceptible of another construction obvitating such a patently absurd result.
There is at the very start the fundamental fact that the power to tax in a State can only be exercised by the State Legislature, the extent of the power being fixed by the Constitution.
The taxes which the State Legislatures are allowed to raise are enumerated in the Seventh Schedule to the Constitution.
The State Legislature can impose all these taxes itself but it is usual to authorise the levy of some of them by local authorities for their own purpose.
Taxes so raised by it local authority are not imposed by it as a legislature but as a delegate of the legislature.
What is done is binding by the authority of the legislature and the tax is valid only if it is one of the, taxes the delegate can raise and the delegate imposes it in accordance with the conditions laid down by the legislature.
It is thus that we find an elaborate procedure prescribed by all the Municipal Acts.
In the U.P. Municipalities Act also, as we have seen, a Board must first pass a special Resolution framing a proposal and the draft rules, invite objections, consider them, and then get them approved by Government.
After this approval there must be a final special resolution imposing the tax from a particular date and the Government then notifies the imposition of the tax.
It is the duty of Government to see that the various steps laid down for the imposition of the tax are followed.
Before it notifies the resolution Government satisfies itself about the requirements.
The notification is made conclusive proof that the tax is imposed in accordance with the provi 958 sions of the Act.
The question arises : Is this rule of conclusive evidence such as to shut out all enquiry by courts ? We have no hesitation in answering the question in the negative.
There are certain matters which, of course, cannot be established conclusively by a notification under section 135(3).
For example, no notification can issue unless there is a special resolution.
The special resolution is the sine qua non for the notification. 'The State Government cannot impose, a tax all by itself by notifying the imposition of the tax, without a resolution by the Board.
Again, the notification cannot authorise the imposition of a tax not included in section 128 of the Municipalities Act.
Neither a Municipal Board nor a State Government can exercise such a power.
A tax can only be said to be imposed in accordance with the provisions of the Municipalities Act, if it is contemplated by the Act.
There is a difference between the tax and the imposition of the tax.
The former is the levy itself and the latter the method by which the levy is imposed and collected.
What the sub section does is Lo put beyond question the procedure by which the tax is imposed, that is to say, the various steps taken to impose it.
A tax not authorised can never be within the protection afforded to the procedure for imposing taxes.
Such a tax may be challenged, not with reference to the manner of the imposition but as an illegal impost.
It would thus appear that it the very start the selection of the tax must be with reference to the delegated powers.
The Municipal Board of the State Government cannot select a tax which the legislature has not mentioned in section 128 of the Municipalities Act.
As the State Government cannot itself impose the tax it must have before it, the special resolution of the Board before notifying the imposition.
Between the special resolution selecting a tax for imposition and the special resolution imposing it sundry procedure is gone through and section 135(3) say , that the notification by Government is conclusive proof that the pro cedure was correctly followed.
It is argued that sections 131 to 134 use mandatory language and it is the.intention of the Legislature to secure obedience to its wishes and therefore it is for the courts to say whether those provisions were followed by the Municipal Board and the State Government.
There can be no doubt that some of the provisions are mandatory.
But all provisions are not of the same character.
In Raza Bunland Sugar Co. Ltd. vs The Municipal Board, Rampur(1) sections 131 to 134 were considered in the light of the tests (1) ; 959 usually applied to determine whether a provision of law is mandatory directory.
It was there pointed out that all the sections in, spite of the language used in them were not mandatory.
The majority opinion considered that the first part of section 131(3) requiring publication of proposals was mandatory and thesecond part which required that publication should be in the manner required by section 94(3) was only directory.
In one of the minority opinions no such distinction was made but section 94(3) was held to be directory.
In the other minority opinion distinction was made between provisions for the protection of tax payers which were stated to be mandatory and provisions for promoting despatch, publicity and efficiency were stated to be directory requiring substantial but not literal compliance.
In that case the notice imposing water tax in Rampur was published in Hindi but in a news paper published in Urdu.
The majority treating the latter part of section 131 (3) as directory held that there was Substantial compliance.
The minority treating section 131(3) to be mandatory upheld the tax treating section 94(3) as directory.
One of the minority views relied upon section 135(3) as shutting out enquiry.
In Berar Swadeshi Vanaspati vs Municipal Committee Sheogaon & Anr.(1) the Municipality passed a resolution tinder section 67(1) of the C. P. & Berar Municipalities Act, 1922.
Sub sections (1) to (7) incorporated provisions similar to sections 131 135 of the U. P. Municipalities Act.
An attempt to question the tax on the ground that the procedure prescribed by section 67 was not followed was repelled.
It was observed: "This notification therefore 'clearly is one which directs imposition of octroi and falls within sub section (7) of section 67 and having been notified in the Gazette it is conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it can not be challenged on the ground that all the necessary steps had not been taken.
" The defect in the imposition of the tax here being of the same character as in the two cases of this Court above cited, the imposition would have the protection of section 135(3) and the tax must be deemed to be imposed according to the procedure laid down in the Act.
As observed already, some of the provisions controlling the imposition of a tax must be fully complied with because they are vital and therefore mandatory, and the others may be complied (1) 960 with substantially but not literally, because, they are directory.
In either case the agency for seeing to this compliance is the State Government.
It is hardly to be expected that the State Government would not do its duty or that it would allow breaches of the provision to go unrectified.
One, can hardly imagine that ,an omission to comply with the fundamental provisions would ever be condoned.
The law reports show that even before the ,addition of the provision making the notification conclusive ,evidence of the proper imposition of the tax complaints brought before the courts concerned provisions dealing with publicity or requiring ministerial fulfillment.
Even in the two earlier cases 'which reached this Court and also the present case, the complaint is of a breach of one of the provisions which can only be regarded as directory.
In cases of minor departures from the letter of the law especially in matters not fundamental, it is for the Govern ment to see whether there has been substantial or reasonable compliance.
Once Government condones the departure, the decision of Government is rightly made final by making the notification conclusive evidence of the compliance with the requirements of the Act.
It is not necessary to investigate whether a complete lack ,of observance of the provisions would 'be afforded the same protection.
It is most unlikely that this would ever happen and before we pronounce our opinion we should like to see such a case.
It was, however, contended that there has been excessive ,delegation, inasmuch as the State Government has been given the power to condone breaches of the Act and thus to set at naught the Act itself.
This is not a right reading of the relevant 'provisions.
We have already pointed out that the power to tax is conferred on the State Legislature but is exercised by the local authority under the control of the State Government.
The taxes with which we are concerned are local taxes for local needs and for which local inquiries have to be made.
They are rightly left to the representatives of the local population which would bear the tax.
Such taxes must vary from town to town, from one Board to another, and from one commodity to another.
It is impossible for the Legislature to pass statutes for the imposition of such taxes in local areas.
The power must be delegated.
Regard being had to the democratic set up of the municipalities which need the proceeds of the taxes for their own administration, it is proper to leave to these municipalities the power to impose and collect these taxes.
The taxes are, however, predetermined and a procedure for consulting the wishes of the people is devised.
But the 961 matter is not left entirely in the hands of the Municipal Boards.
As the State Legislature cannot supervise the due observance of its laws by the Municipal Boards, power is given to the State Government to check their actions.
The imposition of the tax is left to the Municipal Boards but the duty to see that the provisions for publicity, and obtaining the views of the persons to be taxed are fully complied with, is laid upon the State Government.
The proceedings for the imposition of the tax, however, must come to a conclusion at some stage after which it can be said that the tax has been imposed.
That stage is reached, not when the special resolution of the Municipal Board is passed, but when the notification by Government is issued.
Now it is impossible to leave the matter open so that complaints about the imposition of the tax or the breach of this rule or that may continue to be raised.
The door to objections must at some stage be shut and the Legislature considers that, if the State Government approves of the special resolution, all enquiry must cease.
This is not a case of excessive delegation unless one starts with the notion that the State Government may collude with the Municipal Board to disregard deliberately the provisions for the imposition of the tax.
There is no warrant for such a supposition.
The provision making the notification conclusive evidence of the proper imposition of tax is conceived in the best interest of compliance of the provi sions by the Boards and not to facilitate their breach.
It cannot.
therefore, be said that there is excessive delegation.
The matter may be looked at from another point of view Excessive delegation is most often found when the Legislature does not perform all the essential legislative functions and leaves them to some other agency.
The Legislature here performs all essential functions in the imposition of the tax.
The selection of tax for imposition in a Municipal area is by the legislative will expressed in section 128.
Neither the Municipal Board, nor the Government can go outside the List of taxes therein included.
The procedure for the imposition of the tax is also laid down by the Legislature for the Municipal Board to follow and the State Government is there to ensure due observance of that procedure.
We have already shown above that it would be impossible for the Legislature to legislate for the numerous Municipal Boards and local authoriteis with a view to raising taxes for them.
The provisions, such.
as they are, are the best means of achieving consultation of the local population and close scrutiny of the actions of their representatiaves in imposing the tax.
The notification which issues is given finality by the voice of the Legislature.
It would, there CI/65 18 962 fore, appear that in the selection of the ox and its imposition the Legislature plays a decisive part and also lays down the method by which the tax is to be imposed.
The Legislature does not make local enquiries, hear objections and decide them functions which are most inappropriate for the Legislature to perform.
This task is delegated to the appellant Board which is the representative body of the local population on whom the tax is levied.
In other words, all the essential functions of Legislation are performed by the State Legislature and only the minor functions necessary for the imposition of the tax and the enquiries which must be made to ascertain local opinion are left to the Municipal Boards.
An additional check is available as Government can veto the actions of a Board if it does not carry out the mandate of the Legislature.
In our judgment, there was no excessive delegation or a conferral of Legislative functions on the appellant Board or the State Government.
It remains to consider two other arguments in the case.
The first is the question of discrimination which is said to arise from the proviso which makes the notification conclusive in respect of the procedure by which the tax is imposed.
There are numerous statutes, including the Evidence Act, in which a fact is taken to be conclusively proved from the existence of some, other fact.
The law is full of fictions and irrebuttable presumptions which also involve proof of facts.
It has never been suggested before that when the Legislature says that enquiry into the truth or otherwise of a fact shall stop at a given stage and the fact taken to be conclusively proved, a question of discrimination arises.
The tax payers in the Municipality are allowed under the Municipalities Act to object to the proposal for the tax and the rules and to have their objections considered.
They cannot, of course, be allowed to keep on agitating and a stage must come when it may be said that the provisions of the Act have been duly observed.
That stage is reached after Government has scrutinized the proposal.
the rules, the objections and the orders and has approved of the proposal, a special resolution is passed by the Municipal Board and a notification is issued.
It cannot be said that sub section
(3) of s, 135 which leads to the conclusion that the imposition of the tax is according to the Municipalities Act is discriminatory because it only concludes objections against the procedure followed in the imposition of the tax.
The next objection that the impugned sub section involves the exercise of judicial functions not open to the Legislature, is wholly erroneous.
The sub section only shuts out further enquiry and 963 makes the notification final.
There is no exercise of a judicial function.
In our country there is no rigid separation of powers and the legislature often frames a rule such as is incorporated in the third sub section of section 135.
The Evidence Act is full of such Provisions.
In the United States of America where the separation of powers is extremely rigid in some of the constitutions of the States it may be open to objection that the Legislature in shutting out enquiry into the truth of a fact encroaches upon the judicial power of the State.
Such disability has never been found to exist in our country although legislation of this type is only too frequent The objection is, therefore without substance.
In the result we are "of opinion that the judgment of the High Court under appeal must be set aside.
We accordingly set it aside and order the dismissal of the petition under Art, 226 and 227 of the Constitution from which the present appeal has arisen.
In the circumstances of the case there shall be no order as to costs.
Wanchoo J.
I regret I am unable to agree.
This appeal by special leave from the judgment of the Allahabad High Court raises the question of vires of section 135(3) of the U.P. Municipalities Act, No. 2 of 1916, (hereinafter referred to as the Act).
the facts in the case are not in dispute and may be briefly stated.
The appellant, namely, the Municipal Board Hapur, decided to impose water tax from April 1, 1957.
In consequence, steps were taken under sections 131 to 135 of the Act to effectuate that purpose.
However, proposals and draft rules were never published as required by section 131(3) of the Act.
All that was done was that a notice in the form set forth in Sch.
III was pasted on the notice board and there was some beat of drum with respect to the notice.
Even so, the draft rules were not appended to the notice which was put up on the notice board and in effect there was more or less no compliance with the provisions relating to ;the publication of proposals and draft rules.
Eventually a notification was issued under section 135(2) of the Act by the relevant authority about the imposition of the tax from April 1, 1957.
Thereafter collection of tax began.
The respondents who are residents of Hapur received notices for payment of tax.
Thereupon they filed a writ petition in the High Court, and their main grievance was that the provisions of section 131 relating to publication of proposals and draft rules were not complied with and thus they were de.
proved of an opportunity to file objections as provided under section 132 of the Act.
They contended that the publication as pro 964 vided in section 131 of the Act was mandatory and as a mandatory provision of the Act was not complied with, the imposition of the tax was invalid.
The petition was heard by a learned Single Judge who found, as already indicated that the provisions of section 131(3) relating to publication had not been complied with, consequently, the residents of Hapur had no opportunity of making objections to the proposals and draft rules.
Reliance however was placed on behalf of the appellant on section 135(3) of the Act, which is in these terms : "A notification of the imposition of a tax under subsection (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act.
" In reply to this, the respondents contended that section 135(3) was ultra vires, and this contention was accepted by the learned Single Judge.
He therefore allowed the petition and directed the appellant not to collect water tax from the respondents until such time as the tax was imposed in strict compliance with the provisions of the Act.
Then there was an appeal by the appellant to a Division Bench.
There also reliance was placed on section 135(3) of the Act. 'Me Division Bench upheld the order of the learned Single Judge, though its approach to section 135(3) was different.
It held that section 135(3) was not a provision for validating anything done without complying with the provisions of the Act and it could not protect the invalidity of a tax if it was invalid on account of its being imposed without following the legal procedure.
Then there was an application by the appellant for a certificate to appeal to this Court, which was refused by the High Court.
The appellant thereupon got special leave and that is how the matter has come up before this Court.
The main contention on behalf of the appellant before this court is that section 135(3) which lays down that the notification under section 135(2) would be conclusive proof that the tax had been imposed in accordance with the provisions of the Act bars any enquiry into the various procedural steps taken for the imposition of the tax, and the court where such a question is raised must hold that the tax has been imposed in accordance with the provisions of the Act.
Once the court comes to that conclusion it would mean that it must assume that the necessary procedural steps for imposing tax had all been properly complied with and 965 therefore there could not be any invalidity of the tax on the ground that all steps necessary for the valid imposition of the tax had not been taken.
It is further submitted that section 135(3) bars enquiry as to the procedural steps necessary for imposing the tax which are contained in sections 131 to 133 of the Act, and it is urged that what a court can enquire is whether the special resolution as required by section 134 has been passed by the municipality or not.
On the other hand, learned counsel for the respondents con tends that if section 135(3) is to be given the meaning for which the appellant contends it will be ultra vires because then there will be an abdication of its essential legislative functions by the legislatures with respect to imposition of tax and therefore section 135(3) would be bad on the ground of excessive delegation.
It is further urged on behalf of the respondents that section 135(3) read literally not only bars enquiry into procedural steps necessary for the imposition of the tax, which, according to learned counsel, are contained in sections 131 to 135(1) but also bar , enquiry as to whether the tax is in accordance with sections 128 to 130, which are substantive provisions with respect to taxes which can be imposed by municipal boards.
Learned counsel for the respondents thus urges that section 135(3) would give blanket power for the imposition of any tax whether it is contained in section 128 or not and would also permit violating the restrictions contained in sections 129 and 130; and if that be so, it would be a case of complete abdication of its essential functions by the legislature with respect to imposition of tax and a gross case of excessive delegation.
The question that falls for consideration therefore is about the scope of section 135(3) and whether on a true interpretation of that provision it can be said to amount to a case of excessive delegation and therefore liable to be struck down on that count.
Before I come to section 135(3) I may indicate the scheme of municipal taxation contained in sections 128 to 135 of the Act.
Section 128 mentions the taxes which a board may impose sub ject to any general rules or special orders of the State Government in this behalf.
Section 129 lays down certain restrictions on the imposition of water tax and section 130 lays down certain restrictions on the imposition of certain other taxes.
Section 130 A specifies the powers of the State Government to require a board to impose taxes.
Then comes section 131 to 135 which are obviously procedural provisions with respect to imposition of any tax mentioned in section 128.
That these are procedural provisions is clear from section 136 of the Act which lays down that the 966 procedure for abolishing a tax or for altering a tax in respect of certain matters shall, so far as may be, be the procedure prescribed by sections 131 to 135 for the imposition of a tax.
The essentials of the procedure contained in sections 131 to 135 may be briefly summarised thus.
When a board desires to impose a tax it has to pass a special resolution framing proposals specifying the tax, the persons or class of persons on whom the tax will be imposed, the amount or rate leviable and any other matter referred to in section 153 which the State Government requires by rules to be specified.
The board has also to prepare a draft of the rules which it desires the State Government to make in that behalf.
After the proposals and draft rules have been prepared the board is required to publish them along, with a notice in the form set forth in Sch.
III: (see section 1 3 1).
On the publication of the notice along with the proposals and draft rules any inhabitant of the municipality has the right to submit objections in writing and the board has to take such objections into consideration and pass orders thereon by special resolution.
If the board decides to modify its proposals, it shall publish the modified proposals and (if necessary) revised draft rules in the same manner as the original proposals and draft rules were published.
If any objections are received to the modified proposals they are again dealt with by the board which has to pass orders thereon by special resolution.
When the board has finally settled its Proposals, it has to submit them, along with the objections (if any) to the proper authority, section (132).
The proper authority may either refuse to sanction the proposals or return them to the board for further consideration or sanction them without modifications or with such modification not involving, an increase of the amount to be imposed, as it deems fit; (section 133).
When the proposals have been sanctioned by the proper authority, the State Government after taking into consideration the draft rules submitted by the board has to make such rules in respect of the tax as for the time being it considers necessary.
When the rule. , have been made, the order of sanction and a copy of the rules has to be sent to the board and thereupon the board has by special resolution to direct the imposition of the tax with effect from a date to be specified in the resolution : (section 134).
Thereafter a copy of the resolution passed under section 134 is submitted to the proper authority.
Upon receipt of the copy of the resolution the proper authority has to notify in the official gazette the imposition of the tax from the appointed day and the imposition of a tax shall in all cases be subject to the condition that it has been so notified.
967 It will be seen from the above procedural provisions that the legislature has taken great care to see that the tax is impose, after the inhabitants of a municipality have had a chance to make representations in that behalf and after the tax has been approved at all stages including the disposal of objections by means of special resolutions, which require a special quorum for the meeting in which they are passed.
Further the legislature has taken care to provide that the disposal of objections by a board even by special resolution is not sufficient and it has required that the objections shall be sent to the proper authority, presumably for its consideration before it sanctions the tax.
These provisions to my mind indicate the safeguards the legislature intended in a case of this kind where the legislature itself has not indicated the rate of tax but has merely indicated the heads of taxation and the fixation of rate of tax and all incidental matters have been delegated to the board subject to the supervision of the State Government.
It is after all this elaborate procedure has been gone through that a tax can be validly imposed by the delegate, namely the board.
This brings us to section 135(3) which has already been set out.
The first question that arises is the interpretation of this provision.
As I have already indicated two different submissions have been made in this connection on behalf of the parties.
The appellant submits that this section only bars enquiry by the court into the procedural provisions contained in section 131 to section 133.
On the other hand, the respondents contend that this provision bars enquiry into all matters contained in section 128 to section 135(1).
If the words of this provision were to be literally interpreted they lay down that the notification under section 135(3) shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act. 'Me last words are very wide and it is contended on behalf of the respondents that they would include all the provisions of the Act and once a notification is issued under section 135(2) the court is barred from inquiring whether the tax is against any of the provisions of the Act.
I feel however that even though the words may be capable of such a wide interpretation, as is being, put upon them on behalf of the respondents.
it would not be right to read them as if they provide that a notification under section 135(2) bars enquiry even into the question whether the tax is one which could be imposed by the board at all under section 128.
It would to my mind be proper to read the section in a restricted sense and to hold that when it speaks of tax being imposed "in accordance with the provisions of this Act" it refers only to 'the procedural provisions relating to the 968 imposition of tax by the board.
The legislature by these Words could not have intended that the board could impose any tax which was even not within the legislative competence of the State legislature and enquiry into that aspect would also be barred.
Therefore I must reject the extreme argument on behalf of the respondents that these words mean that the court is barred from enquiring even whether the tax imposed is such as can be properly imposed by a board under section 128 of the Act.
I must read down these words only to mean that they bar an enquiry as to compliance with the procedural provisions of the Act with respect to the imposition of a tax.
This brings me to the next question namely whether the bar created by this provision is only with respect to section 131 to section 133 as urged on behalf of the appellant or goes further.
I have already indicated that the procedural provisions for the imposition of a tax by the board are contained in sections 131 to 135(1).
It is after these procedural provisions are compeed with that a notification under section 135(2) is issued.
I can understand section 135(3) being restricted in its application to procedural provisions only with respect to the imposition of a tax; but I cannot understand how that provision can be read down further so that it bars enquiry only into some procedural provisions i.e. from section 131 to section 133, and not into the other procedural provisions i.e. section 134 and section 135(1).
I can see no way of reading section 135(3) in the manner suggested on behalf of the appellant.
1st therefore hold that section 135(3) bars enquiry by courts into all procedural provisions relating to imposition of taxes and therefore it bars enquiry into any matter covered by section 131 to section 135(1) of the Act.
This brings me to another question namely, what is the nature of the provision contained in section 135(3) of the Act.
Is it merely a rule of evidence as urged on behalf of the appellant or is it more than that and is a substantive provision in itself ? This Court had occasion to consider the question whether a rule of irrebuttable presumption was a rule of evidence or a substantive provision in Ishar Ahmad Khan vs Union of India(1) and observed that "the proper approach to adopt would be to consider whether fact A from the proof of which a presumption is required to be drawn about the existence of fact B is inherently relevant in the matter of proving fact B and has inherently any probative or persuasive value in that behalf or not.
If fact A is inherently relevant in proving the existence of fact B and to any rational (1) [1962] Supp. 3 S.C.R. 235.
969 mind it would bear a probative or persuasive value in the matter of proving the existence of fact B, then a rule prescribing either a rebuttable presumption or an irrebuttable presumption in that behalf would be a rule of evidence.
On the other hand, if fact A is inherently not relevant in proving the existence of fact B or has no probative value in that behalf and yet a rule is made prescribing for a rebuttable or an irrebuttable presumption in that connection, that rule would be a rule of substantive law and not a rule of evidence.
" It is on this principle that I must consider whether section 135(3) is merely a rule of evidence or a substantive provision.
To my mind it cannot be said from the mere fact that a notification has been published under section 135(2) that that fact is inherently relevant in showing that all the procedural provisions have been complied with; nor can it be said that that fact has inherent probative or persuasive value.
There is in my opinion no inherent connection between the publication of a notification under section 135(2) and the compliance with all the procedural provisions (namely, section 131 to section 135(1) ) of the Act.
It will all depend on whether the proper authority has been vigilant or not in seeing that all the provisions contained from section 131 to section 135(1) have been complied with.
I would therefore hold that section 135(3) is not a rule of evidence; it is a substantive provision which lays down in effect that once a notification under 135(2) is issued it will be conclusively presumed that the tax is in accordance with all the procedural provisions with respect to the imposition thereof In other words, the effect of the subs tantive provision contained in section 135(3) really comes to this.
namely, that all the provisions from section 1 3 1 to section 1 3 5 (1 ) are wiped out and the notification issued under section 135(2) becomes the sole basis of the imposition of tax.
It has been said that there is no reason to suppose that the proper authority will not see that the provisions of section 131 to section 135(1) are complied with and that there is no reason to presume that the provision of section 135(3) will be abused.
So far as the first aspect is concerned it is obvious in this very case that the proper authority has not seen that the provisions of section 131 to section 133 have been complied with.
As to the second I do not say that the proper authority will abuse the provisions of section 135(3); but that does not in my opinion make any difference to the devastating effect of that provision on compliance with the procedural provisions contained in section 131 to section 135(1) of the Act in the matter of imposition of tax.
The effect of section 135(3) which in my opinion is a substantive provision is that the procedural provisions are given a complete go by in the matter of imposition of tax and as soon as a notifi 970 cation under section 135(2) is shown to the court, the court is helpless in the matter, even though none of the provisions of section 131 to section 135(1) may have been complied with.
This in my opinion is the effect of section 135 (3), as it stands and there is no question of presuming that the proper authority would abuse that provision.
Irrespective of the abuse or otherwise of that provision.
, the effect thereof in my opinion is to wipe out all the procedural safeguards provided in section 131 to section 135(1) of the Act relating to imposition of tax and to make the tax a completely valid imposition so long as there is a notification under section 135(2).
On this interpretation of section 135(3) a serious question arises whether it is a provision which can be said to be intravires.
As I have already indicated, this is a case of delegation of power to impose tax in so far as its rate and incidence is concerned.
Generally speaking, I am of opinion that it is the duty of a legislature when imposing a tax to specify the rate at which the tax is imposed, for the rate of tax, again speaking generally, is one of the essentials of the taxing power given to the legislature.
But I cannot fail to recognise that there may be situations where the legislature may delegate to a subordinate authority the power to fix the rate under proper safeguards.
It is not necessary to specify all the situations where this can be done.
But there can be no doubt that in the matter of local taxation like taxation by municipal boards, district boards and bodies of that character there is pre eminently a case for delegating the fixation of the rate of tax to the local body, be it a municipal board or a district board or some other board of that kind.
The reason for this is that problems of different municipalities or districts may be different and one municipality may require one kind of tax at a particular rate at a particular time while another municipality may need another kind of tax at another rate at some other time.
Therefore, the legislature can in the case of taxation by local bodies delegate even the authority to fix the rate to the local body provided it has taken care to specify the safeguards in the form of procedural provisions or such other forms as it considers necessary in the matter of fixing the rate.
So far as I know practically all Municipal Acts provide safeguards of the nature contained in sections 131 to 135(1) of the Act or some other provisions which are equally effective in the matter of controlling the fixation of rate of tax by a delegate of the legislature.
In such a case where delegation of fixing the rate has been made by the legislature to a subordinate body with proper safeguards, it can ' not be said that the legislature has abdicated its essential functions in the matter of taxing legislation by delegating the rate 971 of taxation to be determined under proper safeguards by the delegate.
Nor can such delegation be struck down as a case of excessive delegation which means that the legislature has abdicated its essential legislative functions in the matter of the legislation concerned.
But there is ample authority for the view that where the legislature has abdicated its essential legislative functions and has made a delegation which may be called excessive such excessive delegation may be struck down.
I may in this.
connection refer to two decisions of this Court, namely, In re The Delhi Laws Act, 1912(1) and Rajnarain Singh vs The Chairman, Patna Administration Committee(2).
It has been held in these cases that an essential legislative function cannot be delegated ' by the legislature.
Exactly what constitutes essential function cannot be enunciated in general terms.
But the essential legislative function consists in the determination of the legislative policy and its formulation as a binding rule of conduct.
It cannot be said that an unlimited right of delegation is inherent in the legislative power itself.
This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely.
The legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it.
Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case.
In these two cases the question arose whether certain laws could be applied to certain areas with such modification as the executive authority deemed fit to make.
It was held that where three executive authority was permitted, at its discretion, to apply without modification (save incidental change, , such as name and place), the whole of any law already in existence in any part of India, that would be good.
Further the executive authority could even be authorised to select future laws in a similar way and to apply them to certain areas.
But where the authorisation was to repeal laws already in force in the area and either substitute other laws with or without modification, this was held (1) ; (2) ; 972 to be excessive delegation and ultra vires.
Further where the modification in a law to be applied did not affect any essential change in the law and alter its policy it could be modified to that extent and applied by the executive authority under delegated authority.
But where a modification affects a radical change in the policy of the law to be applied such an authority could not be delegated and would be ultra vires.
it is on the basis of these principles that I have to see whether section 135(3) can be upheld.
There is no doubt that the legislature delegated its power of imposing taxes, including the power to fix the rate, to the municipal board by section 128 with respect to taxes specified therein.
I have already said that generally speaking the fixation of rate of tax is one of the essential legislative functions but there may be situations where it may not be considered to be an essential legislative function and may be delegated by the legislature to subordinate authorities with proper safeguards.
I have also said that in the field of local taxation relating to municipal boards and district boards and similar other bodies there are reasons for delegating fixation of the rate to such bodies subject to proper safeguards.
This is exactly what has been done under the Act subject to the safeguards contained in sections 131 to 135(1).
if those safeguards are followed, the delegation in my opinion would be a proper delegation and could not be challenged as ultra vires on the ground of excessive delegation.
But if the legislature after laying down with great care safeguards as to the imposition of tax including its rate maker, a blanket provision like section 135 (3), which at one stroke does away with all those safeguards and this is what in my opinion section 135(3) has done in the present case the position that results after such provision is that there is delegation of even the essential function of fixing the rate to the subordinate authority with out any safeguard.
Such a delegation would in my opinion be excessive delegation and would be ultra vires.
The question then is whether in the present case I should save the delegation contained in section 128 read with the safeguards provided in section 131 to section 135(1) for the imposition of various taxes mentioned therein or uphold section 135(3) which in one sweep does away with all the safeguards.
In my opinion section 135(3) is severable and the legislature would have provided for various safeguards contained in section 131 to section 135(1) when it delegated the power to impose a tax including the fixation of rate to municipal boards.
It would therefore in my opinion be right to hold that sections 128 to 135(2) indicate proper delegation of the authority 973 of the legislature to impose taxes specified in section 128 and that it is sub section
(3) of section 135 which should be struck down because it is the only provision which makes the delegation excessive.
I would therefore hold that section 135(3) inasmuch as it makes the delegation contained in sections 128 to 135(2) excessive must be severed from the rest of the sections which are otherwise a proper exercise of delegation of legislative authority and should be struck down on the ground of excessive delegation.
I would therefore dismiss the appeal with costs and uphold the order of the High Court holding that the tax imposed by the appellant had not been validly imposed, though on a different ground.
ORDER BY COURT In accordance with the opinion of the majority the appeal is allowed.
No order as to costs.
[/INST]The appellant was a manufacturer of drugs, (including chloral hydrate) in Hyderabad.
In 1962, the State of Andhra Pradesh issued the Andhra Pradesh (Telangana Area).
Chloral Hydrate (Chloral) Rules with respect to manufacture, possession, sale import, export and transport of chloral hydrate under the Andhra Pradesh (Telangana Area) Intoxicating Drugs Act of 1333 Fasli, as amended by the Hyderabad Opium and Intoxicating Drugs (Amendment) Act of 1953.
The Rules provided that the manufacture of chloral hydrate shall be in accordance with the conditions of a licence granted by the Excise Commissioner on payment of the excise duty of Rs. 500 per annum.
The appellant refused to take licence and challenged the validity of the Rules by a writ petition, but the High Court dismissed the petition.
In appeal to this Court, the appellant contended that (i) the 1333 F Act had been repealed in toto by the introduction into the State of the Dangerous Drugs Act, 1930 and the Drugs Act 1940, and therefore.
, there was no power in the Hyderabad legislature to amend the 1333 F Act by the 1953 Act, and in consequence; there was no law in force on the basis of which the Rules could be promulgated in 1962; and (ii) even if the Act was not repealed, the Rules were not within the powers conferred by the 1333 F Act as amended in 1953, as chloral hydrate was not a narcotic or narcotic drug within the meaning of item 51, List II of the 7th Schedule to the Constitution.
HELD: The 1333 F Act continued in existence in so far as it dealt with collection of duties of excise on substances covered by it and it could therefore be amended by the 1953 Act.
[117 F] The 1333 F Act was in the nature of an excise Act and provided for licences and collection of duties of excise and made provisions incidental thereto.
It applied to the intoxicating drugs mentioned therein and other intoxicating drugs which might be notified by the Government.
The Act continued in force in Hyderabad after 26th January 1950.
In 1950, the Dangerous Drugs Act was applied by Parliament, to Hyderabad, by Central Act 33 of 1950.
This Act however.
is not an Act imposing duties of excise.
Consequently., it could not affect that part of the 1333 F Act which dealt with the grant of licences, and collection of duties of excise.
Further, as a result of section 39(1) of the Dangerous Drugs Act dealing 'With the saving of local and special laws and entry 51 of List II, the introduction of the Act in Hyderabad did not result in complete effacement of the 1333 F, Act.
It remained alive with respect to substances which might be notified as intoxicating drugs under the 1333 F Act.
If there was any such notification before 1950, that notification would be valid and the Act would apply to it.
If there was no such notification, the Act would remain on the statute book as a conditional statute under which a notification could be issued.
, [114 G H; 115 E F; 116 A C] 111 The Drugs Act was extended to Hyderabad by Central Act 3 of 1951.
This Act is mainly concerned with the standard and quality of drugs manufactured and therefore controls the manufacture, sale and distribution of drugs.
It has also nothing to do with duties of excise and with their imposition on narcotics and narcotic drugs.
Therefore, the fact that this.
Act was introduced into Hyderabad in 1951 would not affect in any way that part of the 1333 F Act which dealt with collection of excise duties and provided for licences in that connection, as such duties can be imposed only by the State legislature under item 51 of List II.
Hence, the 1333 F Act in so far as it deals with the collection of duties of excise on any drugs which are narcotics or narcotic drugs would remain alive to that extent.
[116 D G; 117 D F] (ii) Narcotic is a substance which in small doses relieves pain and produces sleep and since it was admitted by the appellant that chloral hydrate is hypnotic and sedative, it would be a narcotic within the meaning of entry 51 of List II.
The statement in the respondents ' affidavit that it did not contain narcotic or a narcotic drug was only made in reply to the appellants allegation that chloral hydrate was a medicinal preparation.
All that was intended by the State by using those words was that chloral hydrate did not contain any narcotic drug or narcotic is defined in the .
Chloral hydrate has also an intoxicating effect when mixed with liquor and so is an intoxicating drug within the meaning of the Amendment Act.
[119 A F] The 1333 F Act after the amendment of 1953 is also an excise Act and defines intoxicating drugs to mean inter alia any intoxicating and narcotic substance which the Government may by notification declare to be an intoxicating drug.
[118 A B] Since chloral hydrate is an intoxicating and narcotic substance it could be notified under the Amendment Act.
It would be liable to excise duty and therefore the Rules could be framed with respect to its control, and the appellant could be asked to take out a licence and pay excise duty on the manufacture thereof.
[118 D F]
</s>
|
<s>[INST] Summarize the judgementAppeal No. 203 of 1964.
Appeal from the judgment and decree dated January 29, 1963 of the Rajasthan High Court in Civil Regular First Appeal No. 29 of 1956.
Sarjoo Prasad and T. Satyanarayana, for appellant.
R. Ganapapathy Iyer and B.R.G.K. Achar, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate against the judgment and decree of the Rajasthan High Court dated January 29, 1963.
The appellant firm Bansidhar Premsukhdas brought a suit which is the subject matter of this appeal against the State of Rajasthan on March 31, 1953 for the recovery of Rs. 86,646/3/ in the Court of District Judge, Bharatpur.
The case of the appellant was that the former State of Bharatpur with a view to increase the trade and commerce in the said State decided to establish a Mandi at Bharatpur where at the material time a T.B. Hospital was located, It decided to sell plots for certain fixed amounts and, therefore, issued a notification on May 18, 1946 offering the plots by public advertisement for sale on certain terms and conditions.
The notifification exhibit
4 was published in Bharatpur Rajpatra and one of the concessions proposed to be granted was embodied in cl. 3 of the notification which stated: "If any commodity is imported from outside into the Mandi and is sold for consumption within the State, or if any commodity received in the Mandi from within the State and is exported in both cases, a reduction of 25% in the customs duty prevailing at the time of the import and export of such commodities will be allowed.
This concession shall not be available in case of vegetable Ghee.
" The notification contained other terms and conditions relating to auction sale such as the prices for different kinds of plots available and the maximum number of plots which a person could purchase.
A committee for supervising the auction was also formed and the notification laid down the procedure for the sale of plots and certain other conditions such as deposit of one fourth sale money at the 83 time of auction etc.
The appellant purchased plots Nos. 8 and 9 for Rs. 4,600 at a public auction and two sale deeds (sanad nilam) were issued to the appellant on October 10, 1946.
The Government of Bharatpur and after its merger, the Government of United State of Matsya and thereafter the present Rajasthan State carried out the promise contained in cl. 3 of the Bharatpur notification and allowed reduction of 25 per cent in the customs duty, but on January 16, 1951 the Rajasthan Government issued notification No. F.4(18) SR/49 which reads as follows: "Now therefore Government of Rajasthan is hereby pleased to direct that with an immediate effect all free Mandies and Zones including the area comprising the former Kishangarh State and the Bhim District of the former Rajasthan State shall be abolished and that in consequence all the Customs concession hitherto enjoyed by or applicable to these Mandies or Zones shall cease to have force and duties of customs shall be levied and collected in such Mandies or Zones in accordance with the revised tariff, amended from time to time.
" The appellant and other traders thereupon made representation to the Rajasthan Government on January 29, 1951 and pending the disposal of the representation the Customs authorities agreed to keep the amount of 25 per cent by way of 'Amanat '.
The State of Rajasthan ultimately decided on May 25, 1951 that the reduction in the customs duty could not be conceded.
On March 31, 1953 the appellant filed the present suit in the Court of the District Judge of Bharatpur for the recovery of the excess amount of customs duty paid to the Rajasthan Government.
The main defence of the State Government was that item No. 3 of the Bharatpur notification was a matter of concession and could not be claimed as of right and the Rajasthan State as successor State was not bound by the contracts of the former State and the applicability of the concessions had also become impracticable on the formation of Rajasthan.
The District Judge of Bharatpur, by his judgment dated March 31, 1956, held that item No. 3 of Bharatpur notification was a term of sale between the parties and the Rajasthan State was bound by it and the succeeding States have recognised the concessions granted to the appellant and therefore the suit of the appellant should be decreed.
The State of Rajasthan took the matter in appeal to the Rajasthan Nigh Court which allowed the appeal and dismissed the suit holding that item No. 3 of the Bharatpur notification was not a part of the contract of sale, and even if it was held to be a part of the contract, the successor State of Rajasthan did not recognise it and was not, therefore, bound by it.
84 The first question involved in this appeal is whether cl. 3 of the Bharatpur notification exhibit 4, was a term of the contract of sale between the appellant and the State of Bharatpur.
It Was argued on behalf of the appellant that exhibit 4 which is the notification dated May 18, 1946 regarding the sale of plots by the Bharatpur State was an offer of purchase of plots on terms and conditions made in that notification.
It was contended that the offer was made to the public as a whole and after it was accepted by the appellant a valid contract came into existence.
The opposite view point was presented on behalf of the respondent.
It was submitted that the concession granted in cl. 3 did not relate to, nor did it form a part of the contract of sale of the plots of the Mandi.
It was pointed out that the concession of 25 per cent reduction in customs duty will not merely enure to the benefit of the purchaser of the plots but also enure to the benefit of the person trading in the shop.
The benefits were generally offered for trade and business in the Mandi and cannot be considered as an offer of benefit only to the prospective purchasers of the plots.
The commodities for which the concession was granted might be in the hands of purchasers and builders of plots, their tenants and licensees or other dealers.
It was therefore not possible to hold that the State Government offered the tax concessions as a reciprocal promise in connection with the contracts of sale with the appellant and the latter had no justification for treating the benefits offered as consideration in return for the purchase of the plots and the construction of shop buildings.
It is also pointed out by learned Counsel on behalf of the respondent that there are certain conditions in the Bharatpur notification exhibit 4, which can.
not, in the nature of things, be treated as terms of the sale.
Reference was made, in this connection, to cls.
5, 6, 7, 10 and 11.
In our opinion, there is much force in the argument advanced on behalf of the respondent but it is not necessary to express any concluded opinion on this aspect of the case.
We shall assume in favour of the appellant that cl. 3 of the Bharatpur notification, exhibit 4, was a term of the contract of sale of plots 8 and 9 of the Mandi.
Even upon that assumption the suit of the appellant must fail, for we shall presently show that there was no recognition of the contractual right by the succeeding State of Rajasthan, and in the absence of such recognition the contract between the former State of Bharatpur and the appellant cannot be legally enforced.
We shall proceed, therefore, to consider the next question, namely, whether the term of the contract was binding upon the successor State of Rajasthan on the assumption that cl. 3 of the Bharatpur notification, exhibit 4, was an integral term of the contract between the appellant and the Government of Bharatpur State.
It is not correct to say as a matter of law that the successor State automatically inherits the rights and obligations of the merged State.
There is no question of suborgation the successor State is not 85 subrogated ipso jure to the contracts with the merged State.
The true legal position is that the contract of the predecessor State terminates with the change of sovereignty unless the contract is ratified by the succeeding sovereign State.
It is now well established in law that the contractual liability of a former State is binding on a succeeding sovereign State only if it recognises that contractual liability.
The season is that the taking over of sovereign powers by a State in respect of territory which was not till then a part of it is an. act of State" and the municipal courts recognised by the new sovereign have the power and jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge; and such recognition may be express or may be implied from circumstances.
In other words, accession of one State to another is an "act of State. and the subjects of the former State may claim protection of only such rights as the new sovereign recognises as enforceable by the subjects of the former State in his municipal courts.
In The Secretary of State in Council of India vs Kamachee Boye Saheba(1) the jurisdiction of the courts in India to adjudicate upon the validity of the seizure by the East India Company of the territory of Rajah of Tanjore as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government, fell to be determined.
The Judicial Committee held that as the seizure was made by the British Government, acting as a sovereign power, through its delegate, the East India, Company, it was an act of State and the Municipal Court had no jurisdiction to inquire into the propriety of the action.
At page 529 of the Report Lord Kingsdown observed: "The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: Such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.
" In another case Vajesingji Joravarsingji vs Secretary of State for India in Council(1) the Judicial Committee observed as follows: ". when a territory is acquired by a sovereign State for the first time that is an act of State, It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler.
In all cases the result is the same.
Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised.
Such rights as he had under the rule of precedes (1) Moore 's I.A. 476.
(2) 51 I. A. 357.
86 sors avail him nothing.
Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts.
The right to enforce remains only with the high contracting parties.
" In Secretary of State vs Sardar Rustom Khan and Others(1) a question arose whether the rights of a grantee of certain proprietary rights in lands from the then Khan of Kalat, ceased to be enforceable since the agreement between the Khan and the Agent to the Governor General in Baluchistan under which the Khan had granted to the British Government a perpetual lease of a part of the Kalat territory, at a quit rent, and had ceded in perpetuity with full and exclusive revenue civil and criminal jurisdiction and all other forms of administration.
In delivering the opinion of the Judicial Committee, Lord Atkin observed as follows: "In this case the Government of India had the right to recognise or not recognise the existing titles to land.
In the case of the lands in suit they decided not to recognize them, and it follows that the plaintiffs have no recourse against the Government in the Municipal Courts.
" The principle that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights which the new sovereign recognises has been accepted by this Court in M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(2).
The State of Saurashtra vs Jamadar Mohamat Abdulla and others(1).
Maharaja Shree Umaid Mills Ltd. vs Union of India (4), and State of Gujarat vs Vora Fiddali Badruddin Mithibarwala(5).
On behalf of the appellant it was contended that there was an implied recognition by the Rajasthan State of the contractual liability since the exemptions were continued upto January 13, 1951 and were revoked with effect from that date by the notification No. F.4(18)SR/49.
We are unable to accept this argument as correct.
Before the process of integration began, each Covenanting State was a separate geographical unit for customs purposes and had its own customs laws and barrier.
After the formation of the Matsya Union on March 18, 1948 there was a promulgation of the Matsya Customs Ordinance by the Raj Pramukh on September 21, 1948.
The United State of Rajasthan was constituted on May 15, 1949 when there was merger of Matsya Union in the United State of Rajasthan.
On August 9, 1949 the Raj Pramukh promulgated the Rajasthan (Regulation of Customs Duties) Ordinance (1) 68 I.A. 100.
(2) [1959] S.C.R. 729.
(3) (4) [1963] Supp. 2 S.C.R. 515.
(5) ; 87 No. 16 of 1949.
Section 3 of this Ordinance abolished duties on the transport of goods within the territory of Rajasthan.
Sectio n Section 3 reads as follows: "3.
No duty leviable on internal transport With effect from such date as may be notified by the Government in the Rajasthan Gazette, no duties of Customs shall be levied and collected in respect of any goods transported within Rajasthan, notwithstanding anything to the contrary in any law, or rule, instrument of usage having the force of law, in any part of Rajasthan; and any such law, rule instrument or usage shall be deemed to be repealed to that extent: Provided that the Government may, by notification in the Rajasthan Gazette (a) Impose a duty of customs on the transport of goods from or to any part of Rajasthan to or from such other part thereof at such rate or rates and with effect from such date as may be specified in the notification, or (b) direct that, in respect of the transport of goods of such description and from or to such part of Rajasthan as may be specified in the notification, a sum of money equal to the amount of the duty leviable on the export on such goods shall be deposited with the appropriate Customs Officer of the place from where the goods are intended to be transported.
" section 4 is the charging section with regard to import and export duties.
Section 4(1) states: "4.
Duties on export and import: (1) Until a revised tariff is introduced under sub section (2) Customs duties on the export or on the import of goods shall be levied and collected in accordance with the tariff for the time being in force in the place from or into which goods leviable with a duty of Customs have been exported or imported, as the case may be.
" sub section (2) of section 4 provides: "The Government may, by notification in the Rajasthan Gazette, issue a revised tariff specifying the goods or class of goods in respect of which, and the rate at which, duties of Customs shall be levied and collected with effect from such date as may be specified in the notification on the export or on the import of such goods or class of goods." eventually on August 15, 1949 a uniform revised tariff was made applicable to the whole of Rajasthan.
Section 6 provided that the existing law in force of the covenanting States shall regulate the GI 8 88 collection of such duties and other ancillary duties in relation thereto, unless altered, modified or repealed by a competent legislative authority of Rajasthan and thus saved existing law with regard to the procedure and ancillary matters.
It is manifest on examination of the provisions of this Ordinance that there was a repeal of all Customs laws of the Covenanting States in so far as they provided for the levy and collection of duties in the particular territorial limits of the Covenanting States and the Ordinance introduced a new law imposing duty on export and import into Rajasthan State as a whole.
Further, after the issue of a revised tariff the old tariffs under the various laws of the Covenanting States also stood repealed.
There is no express provision in the Ordinance saving the previous contractual rights with regard to customs duty.
In the absence of any such express provision it must be held that all existing contracts were repudiated and cancelled.
The enjoyment of the concession by the appellant after the formation of the Rajasthan State is clearly referable to the law under which customs concessions could be granted and recognised.
This is borne out by the notification dated January 16, 1951 which appeared in the Rajasthan Raj Patra, which itself refers to sections 10 and 33 of the Matsya Customs Ordinance No. 14 of 1948 by which customs concessions were revoked.
We are, therefore, of the opinion that the High Court has rightly taken the view, upon an analysis of the evidence adduced in the case, that there was no recognition of the contractual liability by the succeeding State of Rajasthan.
We shall however ,assume in faboure of the appellant that the State of Rajasthan recognised the contractual right of the appellant with regard to the exemption of tax.
Even upon that assumption the suit of the appellant must fail, for the contractual liability must be taken to have been superseded by the enactment of the Rajasthan Regulation 'of Customs Duties) Ordinance No. 16 of 1949 promulgated by the Raj Pramukh on August 9,1949.
Before we deal with this question it is desirable to indicate the constitutional developments which resulted in the inclusion of the former Bharatpur State into the Part B State of Rajasthan, which came into existence on January 26, 1950.
The former Bharatpur State remained a separate entity till March 18, 1948, though it had acceded to the Dominion of India after August 15, 1947 with respect to three subjects, namely, communications, defence and external affairs.
In 1948, however, the process of merger in Rajasthan began and the first merger that took place was of the former States of Alwar, Bharatpur, Dholpur and Karauli, which formed the Matsya Union as from March 18, 1948 by a Covenant entered on February 28, 1948.
After the formation of the Matsya Union the Raj Pramukh promulgated the Matsya Customs Ordinance 1948 on September 21, 1948.
Section 2 of that Ordinance repealed the levy of 89 customs duty in force in all the Covenanting States and applied the provisions of the new Ordinance to the whole of the United State of Matsya.
Section 10 of the Ordinance provided for the charge of customs duty on goods or class of goods to be notified in the State Gazette from time to time.
Section 33 of the Ordinance similarly granted power to the State Government to exempt any goods or class of goods imported or exported from the United State of Matsya from payment of customs duty leviable thereon.
Then came another union of certain other Rulers in Rajasthan in March 1948 by which these Rulers united under the Ruler of Udaipur to form what later came to be known as the Former State of Rajasthan.
In March 1949, the United State of Rajasthan was formed by Covenant entered into by fourteen Rulers of Rajasthan, including those who had formed the Former State of Rajasthan, and this State came into existence from April 7, 1949.
There was a merger of the Matsya Union in the State of Rajasthan on May 15, 1949 and thus the former Bharatpur State came to be included in the United State of Rajasthan through the Matsya Union.
As we have already stated, the Raj Pramukh promulgated the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949 on August 9, 1949.
It is well established that Parliament or State Legislatures are competent to enact a law altering the terms and conditions of a previous contract or of a grant under which the liability of the Government of India or of the State Governments arises.
The legislative competence of Parliament or of the State Legislatures can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter of imitation on the plenary powers which the Legislature is endowed with for legislating on the topics enumerated in the relevant Lists.
this view is borne out by the decision of the Judicial Committee in Thakur Jagannath Baksh Singh vs The United Provinces(1) in which a similar complaint was made by the taluqdars of Oudh against the United Provinces Tenancy Act (U.P. Act 17 of 1939).
It was held by the Judicial Committee that the Crown cannot deprive itself of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists, and no court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence.
If therefore, it be found that the subject matter of a Crown grant is within the competence of a Provincial legislature nothing can prevent that legislature from legislating about it unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally.
accordingly, in the absence of any such express prohibition, the (1) [1946] F.C.R. III.] I 8(a) 90 United Provinces Tenancy Act, 1939, which in consolidating and amending the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh, dealt with matters within the exclusive legislative competence of the Provincial legislature under item 21 of List 11 of the 7th Sch.
to the Government of India Act, 1935, was intra vires the Provincial legislature notwithstanding that admittedly some of its provisions cut down the absolute rights claimed by the appellant taluqdar to be comprised in the grant of his estate as evidenced by the sanad granted by the Crown to his predecessor.
The same principle has been reiterated by this Court in Maharaj Umeg Singh and others vs The State of Bombay and others(1).
It was pointed out that in view of article 246 of the Constitution, no curtailment of legislative competence can be spelt out of the terms of clause 5 of the Letters of Guarantee given by the Dominion Government to the Rulers of "States" subsequent to the agreements of Merger, which guaranteed, inter alia, the continuance of Jagirs in the merged 'States '.
This principle also underlies the recent decision of this Court in Maharaja Shree Umaid Mills Ltd. vs Union of India(2) in which it was pointed out that there is nothing in article 295 of the Constitution which prohibits Parliament from enacting a law altering the terms.
and conditions of a contract or of a grant under which the liability of the Government of India arises.
It was further held that there was nothing in article 295 prohibiting Parliament from enacting a law as to excise duty or income tax in territories which became Part B States, and which were formerly Indian States, and such a prohibition cannot be read into article 295 by virtue of some contract that might have been made by the then Ruler of an Indian State with any person.
As we have already indicated, there is nothing in the provisions of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949 which preserves the alleged contractual rights of the appel lant, and in the absence of any express language in the Ordinance preserving such alleged contractual rights, it must be held that the general, law enacted in the Ordinance supersedes the previous contract of the appellant with the State of Bharatpur.
Lastly, it was argued on behalf of the appellant that the notification dated January 16, 1951 revoking the tax concessions was in violation of article 306 of the Constitution which provides as follows: "Notwithstanding anything in the foregoing provisions of this Part or in any other provisions of this Constitution, any State specified in Part B of the First Schedule which before the commencement of this Consti tution was levying any tax or duty on the import of goods into the State from other States or on the export of goods (1) [1963] Supp. 2 S.C.R. 515. 91 from the State to other States may, if an agreement in that behalf has been entered into between the Government of India and the Government of that State, continue to levy and collect such tax or duty subject to the terms of such agreement and for such period not exceeding ten years from the commencement of this Constitution as may be specified in the agreement.
The argument is based on the assumption that the appellant was enjoying concessions under section 40 of the Customs Circular No. 15 and continued to enjoy the concessions in the State of Matsya under section 34 of the Matsya Customs Ordinance No. 14 of 1948, and subsequently in the State of Rajasthan under section 6 of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949.
It is the admitted position that the agreement entered between the Government of India and the United State of Rajasthan on February 25, 1950 incorporated certain recommendations of the Federal Finance Enquiry Committee Report 1948 49.
The agreement having been executed and the condition under article 306 having been satisfied in this case, the continuance of the customs duty is in conformity with the provisions of this Article.
In any case, the claim of the appellant is not based on any provision of Bharatpur law but upon a contractual liability of Bharatpur State and to a case of this description the provisions of article 306 cannot be attracted.
For the reasons expressed, we hold that the judgment of the High Court is right and this appeal must be dismissed with costs.
Appeal dismissed.
[/INST]The respondent assessee had a gross agricultural income of more than Rs. 1 lakh in 1355 Fasli (July 1, 1947 to June 30, 1948).
In response to a notice issued by the Assistant Collector under section 15(3) of the U.P. Agricultural Income tax Act, 1948, the assessee filled a return of his income and the said officer made an assessment though under section 14(2) of the Act Jurisdiction to assess in cases when the gross income exceeded Rs. 1 lakh lay within the Collector.
The, Collector thereafter made a reassessment under section 25 read with section 16(4) within the period of limitation prescribed under the former section i.e. "within one year of the end of the year in which the income had escaped assessment".
In appeal by the respondent the Agricultural Income tax Commissioner set aside the orders of the Collector and also of the Assistant Collector and directed the Collector to make a fresh assessment after giving notice to the res pondent.
The Board of Revision held that the Commissioner had rightly decided that the orders in question were invalid but that the Commissioner was not empowered to set aside the order of the Assistant Collector which was not challenged before him.
However the Board suo motu set aside the order of the Assistant Collector and directed that fresh assess ment be made "according to law".
The High Court in reference under section 24(4) held that having regard to the limitation provided in section 25 the Board could not in 1952 direct the Collector to make a fresh assessment for the period in question.
The State of Uttar Pradesh appealed to this Court.
It was contended on behalf of the State that: (1) The Assistant Collector could make assessment even in cases when the gross income exceeded Rs. 1 lakh.
(2) The notice under section 15(3) issued by the Assistant Collector not having been set aside by the higher authorities, the Collector could, as directed by the Board, make an assessment without transgressing any restrictions in section 15(3) or section 25.
(3) without a fresh notice under section 15(3) the Collector had the power by virtue of the notice under section 15(1), to assess the income of the respondent on the return made pursuant to the notice issued by the Assistant Collector.
(4) Since notice under 9. 25 for reassessment of the escaped income had been issued by the Collector within the period prescribed by section 25(3) and the notice was otherwise valid, assessment proceedings directed by the Board could be founded by the Collector on that notice.
HELD : (i) Reading sub section
(1) & (2) together there can be no doubt that the Collector is the assessing authority within his revenue jurisdiction with unlimited jurisdiction and the Assistant Collector in charge of a sub division is the assessing authority within his revenue jurisdiction with power only in cases in which the gross agricultural income of the assessee 162 does not exceed Rs. 1 lakh.
The Assistant Collector is not entitled to make assessment in such a case relying on the generality of the provisions of section 14(1).
[167 F G] (ii) When the Assistant Collector arrived at the conclusion that the gross income of the respondent exceeded Rs. 1 lakh the proceedings initiated by him including the issue of the notice must, unless that conclusion is set aside by a superior authority, be treated as unauthorised, for the power to issue a notice under section 15(3) is only conferred upon the assessing authority and the assessing authority within the meaning of section 2(6) s a person authorised to assess agricultural income tax.
There is no provision in the Act or the Rules for transfer of proceedings from the Assistant Collector to the Collector when the Assistant Collector in dealing with a return finds that he has no jurisdiction.
The Collector therefore could not in the present case make reassessment on the basis of the return filed under section 15(3).
In fact having regard to the terms of the order passed by the Board it was clear that the notice under section 15(3) issued by the Assistant Collector had been quashed by the Board.
[168 B F] (iii) If the proceedings for assessment were commenced on a 'return made pursuant to an invalid notice, and the proceedings for assessment were set aside on the ground of want of jurisdiction of the authority making the assessment the entire proceeding must be deemed to be vacated and relying upon the return made to the authority who had assessed the income another authority cannot proceed to assess the income of the assessee.
Mere issue of a notice under section 15(1) could not come to the aid of the Collector in commencing fresh assessment proceedings many years after the date on which that notice was issued on a return which was not made; to him.
[168 H 169 B] (iv) The notice under section 25 issued by the Collector must also be deemed to have been quashed by the Board.
The Collector had therefore, under the direction given by !he Board, to issue a fresh notice before a proceeding for assessment could be started and a fresh assessment could not be based on the earlier notice.
[169 E]
</s>
|
<s>[INST] Summarize the judgementCivil Appeal Nos.
2254 & 2255 of 1968.
(From the Judgment and Order dated the 10 1 1967 of the Madhya Pradesh High Court in Misc.
First Appeal No. 12/64) Ram Panjwani, Rameshwar Nath, for the appellant in both the appeals.
A. G. Ratnaparkhi, for respondent No. 1 in CA 2254/68.
S.K. Gambhir, for respondent No. 1 in CA No. 2255/68.
The Judgment of the Court was delivered by GUPTA, J.
On June 23, 1961 a bus owned by the appellant which was going from Gwalior to Indore met with an accident as a result of which two of the passengers, Mrs. Usha Kotas thane, aged about 23 years, and her one year old son, died and several others received serious injuries.
Among the injured was one Sailesh Kumar, a boy of about four years.
Claims for compensation were filed before the Motor Acci dent Claims Tribunal at Gwalior.
The application for com pensation for the death of Mrs. Usha Kotasthane and her child was made by her husband Shri Sudhakar Kotasthane, and the claim in respect of the injury to minor Sailesh Kumar was made on his behalf by his guardian mother Shrimati Indubala Bhandari.
Sudhakar Kotasthane and Indubala Bhand ari were also travelling in the same bus and both sustained injuries and were awarded compensation by the tribunal, but these appeals do not concern their cases or the claim in respect of Kotasthane 's dead child.
The two appeals before us at the instance of the Madhya Pradesh State Road Trans port Corporation, on certificate granted by the Madhya Pradesh High Court, are against the common judgment of the High Court enhancing the quantum of damages awarded by the claims tribunal in respect of the death of Mrs. Usha Kotas thane and the injury sustained by Sailesh Kumar.
C.A. 2254 of 1968 relates to the award in Mrs. Kotasthane 's case and C.A. 2255 of 1968 to that in the case of Sailesh Kumar.
629 As regards the death of Mrs. Usha Kotasthane, the claims tribunal awarded Rs. 15000/ as damages to her hus band Sudhakar.
At the time of her death she was employed as a Physical Instructress in a school at Indore, getting a salary of Rs. 190/ per month, in the grade of Rs.150 10 250.
Admittedly Sudhakar remarried within a year of the death of his first wife.
This is how the tribu nal dealt with the claim: "In the present case, it is a case of the death of the wife.
The husband was not dependent on the earning of his wife.
He was himself earning independently.
The applicant has no where stated that on account of the death of his former wife, he has been deprived of her income, nor that he was dependant upon her.
It is true; that 'the wife of the appli cant was educated, healthy, employed, and earning.
As far as, the loss of companionship is concerned, it is again true that he faced this loss for nearly, 11 months, after which, he married for the second time.
No cross examination has been led by the non applicant on the point that the second wife is as accom plished, educated, and healthy as the former one was.
The death of the wife of the appli cant must have caused him mental shock, pain and inconvenient in his house hold.
The work in the house, which he could take from his wife in looking to the household was also not available to the applicant during this period of 11 month.
The advantage of established married life with a child in the lap, was also lossed to the applicant during this time.
Taking into consideration all these facts, in favour of the applicant, and the fact, against him that he was married again after 11 months, of the death of his wife, I think, it will be proper to award damages amounting to Rs. 15000/ for the loss of life of his wife, which resulted into conditions of inconven ience, suffering shock derangement in house and the life, for a period of nearly 11 months.
" Both sudhakar Kotasthane and Madhya Pradesh State Road Transport Corporation preferred appeals to the High Court from the decision of the tribunal.
The High Court proceeded as follows.
The "span of her earning life" was counted as 35 years taking 58 years as the age of superannuation.
For the first six years from the date of accident, the High Court took Rs. 200/ as the average monthly income, and for the remaining twenty nine years of service the average income per month was fixed at Rs. 250/ .
On this basis the High Court computed her total earning to be Rs. 96,000/ .
Giving allowance for her own expenses and also taking into account the promotions and consequently the increased salary she might have earned, the High Court thought that she could have "easily spread" half of this amount for the household and estimated the loss of income on account of her death in round figures, at Rs. 50,000/ .The High Court enhanced the compensation accordingly.
Regarding Sudhakar 's second, marriage the High Court observed: 630 "But even so the second marriage cannot be said to be a substitute for the ' first one.
The second wife is not an earning member of the family nor is it shown that Sudhakar has in any way benefitted from the second marriage financial ly.
Therefore the financial loss would be there despite the second marriage.
" On these findings the High Court allowed the appeal filed by Sudhakar Kotasthane and dismissed that preferred by the Madhya Pradesh State Road Transport Corporation.
The extract from the tribunal 's order quoted above suggests that in fixing the quantum of compensation the tribunal was under the impression that the applicant had made no claim on the ground of ' pecuniary loss resulting from his wife 's death.
In this the tribunal was clearly in error.
In paragraph 11 of the claim petition, Rs. 75,000/is claimed as compensation and the paragraph makes it clear, that the sum is computed on the deceased 's expected earn ings.
If there were no such claim the tribunal would have been hardly justified in awarding Rs. 15000/ as damages for the mental shock and inconvenience suffered by the applicant for a period of 11 months only, after which he remarried.
The High Court also does not seem to be right in estimating the damages at Rs. 50,000/ in the manner it did.
Whether the deceased 's average monthly salary is taken to be Rs. 200/ or Rs. 250/we find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husband 's monthly loss.
It is not impossible that she would have contributed half of her salary to the household but then it is reasonable to suppose that the husband who was employed at a slightly higher salary would have contributed his share to the common pool which would have been utilised for the lodging and board of both of them.
We do not therefore think it is correct to assume that the husband 's loss amounted to half the monthly salary the deceased was likely to draw until she retired.
If on an average she contributed Rs. 100/every month to the common pool, then his loss would be roughly not more than Rs. 50/ a month and, assuming she worked till she was 58 years, the total loss would not exceed Rs. 19,000/ .
But in assessing damages certain other factors have to be taken note of which the High Court over looked, such as the uncertainties of life and the fact of accelerated payment that the husband would be getting a lump sum payment which but for his wife 's death would have been available to him in driblets over a number of years Allowance must be made for the uncertainties and the total figure scaled down accordingly.
The deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having.
to spend more time to look after the family which was expected to grow.
Thus the amount assessed has to be reduced taking into account these imponderable factors.
Some element of conjecture is inevitable in assessing damages Pearce in Mallet v Mc Monagle, 1970 (A.C.) (H.L.) 166 Lord( 174)calls it "reson able prophecy"sTaking note of all the relevant factors, the sum of Rs.15000/ awarded by the tribunal appears to be a reasonable figure which h we do not find any reason to disturb.
631 A method of assessing damages, usually followed in England, as appears from Mallet vs Mc Monagle (supra), is to calculate the net pecuniary loss upon an annual basis and to "arrive at the total award b multiplying the figure as sessed as the amount of the annual "dependency" by a number of "year 's purchase" ", (p. 178) that is, the number of years the benefit was expected to last, taking into consid eration the imponderable factors in fixing either the multi plier or the multiplicand, The husband may not be dependant on the wife 's income, the basis of assessing the damages payable to the husband for the death of his wife would be similar.
Here, the lady had 35 years of service before her when she died.
We have found that the claimant 's loss reasonably works out to Rs. 50/ a month i.e. Rs. 600/ a year.
Keeping in mind all the relevant facts and contingen cies and taking 20 as the suitable multiplier, the figure come to Rs. 12,000/ .
The tribunal 's award cannot there fore ' be challenged as too low though it was not based on proper grounds.
In a decision of the Kerala.
High Court relied on by the appellant (P. B. Kader vs Thatchamma: AIR 1970 Kerala 241 ), to which one of us was a party, the same method of assessing compensation was adopted.
The other appeal (C.A. No. 2255 of 1968) relates to the injury sustained by a boy aged about four years.
He suf fered compound fracture of his right tibia and fabula lower third near the ankle joint with infection of the wound.
Skin grafting had to be done and the boy had to remain in hospital from June 25, to August 4, 1961.
AccOrding to the doctor who examined him, the child was likely to develop a permanent limp which might require another operation at the age of 16 years or so.
In any case, in the opinion of the doctor the deformity was certain to persist till the boy was 16 years when another operation might remove it.
The tribu nal awarded Rs. 10,000/as general damages and Rs. 890/ as special damages.
The High Court increased the general damages to Rs. 20,000/ .
It appears from the evidence that the boy comes from a well to do family.
Though the possibil ity was there of the deformity being removed by surgical operation when he grew up to be 16 years, the other possi bility cannot be altogether ruled out.
That being the position, we are not inclined to interfere with the sum awarded by the High Court.
In the result, appeal No. 2254 of 1968 is allowed, the judgment of the High Court is set aside and the award of the tribunal is restored; appeal No. 2255 of 1968 is dismissed.
There will be no order as to costs in either appeal.
C.A. 2254 of 1968 allowed.
S.R. C.A. 2255 of 1968 dismissed.
[/INST]Unless a statute either clearly or by necessary implica tion rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind.
Clauses 22 and 25 of the Motor Spirit Rationing Order, 1941, read with the Defence of India Rules, 1939, do not rule out the necessity of mens rea.
Therefore, where the employees of the licensee of a petrol filling station supply petrol to a car owner without taking coupons and thus act in contravention of the provisions of the said clauses, the licensee, who was not present when the wrongful act was done and had no knowledge of it, could not be convicted for contravention of the said clauses under r. 81 (4) of the Defence of India Rules, 1939.
Clause 27 of the said Order is however differently worded and imposes a duty on the supplier to endorse or cause to be endorsed the registration or other identifying mark of the vehicle to which petrol is furnished and if these particulars are not endorsed by his employees on the petrol coupons against which petrol is supplied the supplier would be liable even if he had no knowledge of the wrongful act of his employees.
Srinivas Mall Bairolia vs King Emperor (I.L.R. 26 Pat.
46, P.C.) and Isak Solomon Macmull vs Emperor (A.I.R. referred to.
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<s>[INST] Summarize the judgementvil Appeals Nos.
1221 & 1222 of 1977.
From the Judgment dated 20.1.1976 of the Andhra Pradesh High Court in Appeal Nos. 758 and 632 of 1975.
Mrs. Shyamala Pappu and Ms. Indira Sawhney for the Appel lants.
T.V.S.N. Chari for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The appellants arc aggrieved that the High Court by the common judgment dated 20.1.1976 in two cases had substantially reduced on erroneous grounds the enhanced compensation allowed by the Subordinate Judge on reference under Section 18 of the Land Acquisition Act (for short the Act).
Civil Appeal No. 1222 of 1977 relates to acquisition of Ac.
8.33 cents of land in Survey No. 2/1 of Dondaparthi village in pursuance to Notification under Section 4(1) of the Act published on 7.7.1966 for construction of quarters for the staff of Porl Trust.
Civil Appeal No. 1221 of 1977 relates to acquisition of Ac.1.68 cents of land in Survey No. 2/2A of the same village in pursuance to the Notification published on 1.8.1968 for the purpose of formation of the national highway diversion road.
The appellants claimed land value at the rate of Rs. 10 per sq. yard since the Land Acquisition Officer awarded only 0.88 paise per sq. yard.
The learned Subordinate Judge determined the market value of the land at the rate of Rs. 11 per sq yard accepting as basis the value of land under the transactions evidenced by Exhibits A 1 to A 4, but granted the compensa 175 tion at the rate of Rs. 10 per sq. yard as the claimants themselves had claimed compensation at the rate of Rs. 10 per sq. yard.
The State preferred appeal against the said judgment of the 'Subordinate Judge to the High Court of Andhra Pradesh.
The High Court accepted Exhibits A I to A 4 as reflecting the value of land in the neighbourhood.
It however following the decision of this Court in Tribeni Devi vs Collector, Ranchi, ; , that a deduction of 1/3 of the value is to be made when large extent of land is acquired under housing scheme, determined the market value of the appellants land at the rate of Rs. 6.50 paise per sq. yard and accordingly reduced the total compensation allowed by the Subordinate Judge.
The learned counsel for the appellants contended before us that the High Court had erroneously applied the principle laid down in Tribeni Devi 's case (supra) without properly appreciating the nature of the land in question and the purpose for which it had been acquired.
It was submitted that the land in question was fully developed and eminently suitable for being used as house sites and, therefore, there was no justification for making any deduction.
It is also pointed out that even in respect of the land acquired for the purpose of formation of the road, the High Court wrongly proceeded on the basis that expenses have to be incurred for development and thus in awarding the compensa tion, the High Court wrongly applied principles of deduction of 1/3 of the value.
The learned counsel has taken us through the relevant evidence and maintained that the learned Subordinate Judge had reduced the land value to Rs. 10 per sq. yard though the market value was higher at Rs. 11 per sq. yard only because the appellants had themselves limited the claim to Rs. 10 per sq. yard The learned counsel for the respondent maintained that the appellants ' land forms part of large tract acquired for the purpose of construction of houses, that the sale deed Exhibits A 1 to A 4 relate to small plots which are fully developed and when the transaction is compared, it is neces sary to take into account the development that is required to be made for bringing the acquired land suitable for the purpose of construction and that the High Court was right in making the deduction of 1/3 of the value in the facts and circumstances of the case.
In awarding compensation in acquisition proceedings, the Court has necessarily to determine the market value of the land as on the date of the relevant Notification.
It is useful to consider the value paid for similar land at the material time under genuine transactions.
The market value envisages the price which a willing purchaser may pay under bona fide trans 176 fer to a willing seller.
The land value can differ depending upon the extent and nature of the land sold.
A fully de veloped small plot in an important locality may fetch a higher value than a larger area in an undeveloped condition and situated in a remote locality.
By comparing the price shown in the transactions all variables have to be taken into consideration.
The transaction in regard to smaller property cannot, therefore, be taken as a real basis for fixing the compensation for larger tracts of property.
In fixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduc tion is given taking into consideration the expenses re quired for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction.
This principle has been stated by this Court in Tribeni Devi 's case (supra).
In Kaushalya Devi vs Land Acquisition Officer, ; , this Court observed at pages 912 913 as under: "When large tracts are acquired, the transac tion in respect of small properties do not offer a proper guideline . . . .
In certain other cases this Court indicated that for determining the market value of a large property on the basis of a sale transaction for smaller property a deduction should be given.
" We shall also refer to the observations of this Court in Administrator General of West Bengal vs Collector, Varanasi, ; "The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspec tive.
The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents.
However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out could with justification be adopted, then in valuing such small, laid out sites the valua tion indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant.
In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made.
" 177 This Court has in a recent decision in Special Tahsil dar Land Acquisition, Vishakapatnam vs Smt.
A. Mangala Gowri, 1991(2) Scale 301, following Tribeni Devi 's case pointed out as under: "It is to be noted that in building Regula tions setting apart the lands for development of roads, drainage and other amenities like electricity etc.
are condition precedent to approve lay out for building colonies.
There fore, based upon the .situation of the land and the need for development the deduction shall be made.
Where acquired land is in the midst of already developed land with amenities of roads, drainage, electricity etc.
then deduction of 1/3 would not be justified.
In the rural areas housing schemes relating to weaker sections deduction of 1/4 may be justi fied.
" The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land.
In applying the principle it is necessary to consider all relevant facts.
It is not the extent of the area covered under the acquisition, the only relevant factor.
Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position.
lf smaller area within the large tract is already developed and suitable for build ing purposes and have in its vicinity roads, drainage, electricity, communications etc.
then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
The national highway runs very near to the proposed Port trust colony.
The lands acquired already for the South Eastern Railway Staff Quarters lie to the southern side of the land under acquisition.
The town planning trust road runs on the northern side of the land under acquisition.
The colony is in the fast developing part of the municipal town.
The plot of Ac. 1.68 cents in Survey No. 2/2A acquired for the formation of the diversion road is adjacent to built in area.
The land involved in these cases is of even level and fit for construction without the necessity for levelling or reclamation.
The High Court has itself conclud ed on the evidence that the lands covered by the acquisition are located by the side of the National Highway and the southern railway staff quarters with the town planning trust road on the north.
The neighbouring areas are already de veloped ones and houses have been constructed, and the land has potential value for being used as building sites.
Having found that the land is to be valued only as building sites and stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduc tion.
It is not in every case that such deduction is to be allowed.
Where the acquired land is in the 178 midst of already developed land with amenities of roads, electricity etc.
, the deduction in the value of the compara ble land is not warranted.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land.
If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no require ment of further development, the principle of deduction of the value for purpose of comparison is not warranted.
With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other ameni ties and is adjacent to a developed colony and in such circumstances it is possible to utilise the entire area in question as house sites.
In respect of the land acquired for the road, the same advantages are available and it did not require any further development.
We are, therefore, of the view that the High Court has erred in applying the principle of deduction; and reducing the fair market value of land from Rs. 10 per sq. yard to Rs. 6.50 paise per sq. yard.
In our opinion, no such deduction is justified in the facts and circumstances of these cases.
The appellants, therefore, succeed.
In the result, the appeals are allowed and the respond ent is directed to pay the compensation as determined by the learned Subordinate Judge with interest and solatium in accordance with law.
In the circumstances of the case, we make no order as to costs.
G.N. Appeals allowed.
[/INST]By way of notification dated 18.6.1977, the Central Government exempted from duty all goods falling under Tariff item No. 68 of the First Schedule to the in or in relation to manufacture of which no process was ordinarily carried on with the aid of power.
The respondents in the first set of appeals have been manufacturing crude sodium sulphate.
Since the respondents used diesel pumps for pumping brine into salt pans, in the process of manufacture, the benefit of the said notification was denied to them on the ground that the process of manu facture was carried on with the aid of power.
However, on appeal, the Collector of Customs (Appeals) allowed the benefit to the respondents.
Revenue preferred an appeal and the Tribunal affirmed the Collector 's order.
In the other appeals, the Respondents, manufacturer of lime, used to lift the raw materials to the platform at the head of the kiln by the aid of power and the raw materials were mixed manually into the kiln.
The benefit of the said notification was denied to the Respondents by the Assistant Collector.
Even an appeal before the Collector of Appeals failed.
However, on appeal the Tribunal accepted the claim of the Respondents.
In all these matters the Tribunal took the view that the manufacturing process started from the stage of feeding raw materials into the salt pan or the kiln as the case may be and the transferring of the raw materials was a stage prior to the manufacturing process and so the 125 use of power for such transfer would not disentitle the respondents from the benefit under the said notification.
Aggrieved by the orders of the Tribunal, the Revenue has preferred the present appeals.
Before this Court, the Revenue contended that pumping the brine into the pan or lifting the raw materials to the kiln head was a process in relation to the manufacture of the final product and since that process with the aid of power was integrally connected with the manufacture, the exemption would not apply.
The Respondents contended that if the process carried on with the aid of power does not bring about any change in the raw materials, it cannot be said that any process in or in relation to the manufacture of an article has been carried on with the aid of power and, therefore, mere transfer of raw materials by the use of power cannot be considered as a process of manufacture.
Allowing the appeals, this Court, HELD: 1. Process in manufacture or in relation to manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations.
It is the cumulative effect of the various processes to which the raw materials is subjected to the manufactured product emerges.
Therefore, each step towards such production would be a process in relation to manufacture.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture of processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture.
[130 E F).
2.1 The natural meaning of the word 'process ' is a mode of treatment of certain materials in order to produce a good result, a species of activity performed on the subject matter in order to transform or reduce it to a certain stage.
There is nothing in the natural meaning of the word 'process ' to exclude its application to handling.
There may be process which consists only in handling and there may be a process which involves no handling or not merely handling but also use.
It may be a process involving the handling of the material and it need not be a process involving the use of material.
The activity may be subordinate but one in relation to the further process of manufacture.
[130G, 131 A B] 126 2.2 A process is a manufacturing process when it brings out a complete transformation for the whole compo nents so as to produce a commercially different article or a commodity.
But, that process itself may consist of several processes which may or may not bring about any change at every intermediate stage.
But the activities or the opera tions may be so integrally connected that the final result is the production of a commercially different article.
Therefore, any activity or operation which is the essential requirement and is so related to the further operations for the end result would also be a process in or in relation to manufacture to attract the relevant clause in the exemption notification.
The word 'process ' in the context in which it appears in the notification includes an operation or activi ty in relation to manufacture.
[132H, 133 A B] J.K. Cotton Mills vs
S.T. Officer; , ; Union of lndia vs Delhi Cloth & General Mills, [1963] Supp. 1 SCR 586, relied on.
3.1 The transfer of raw material to the reacting vessel is a preliminary operation but it is part of a continuous process ,but for which the manufacture would be impossible.
The handling of the raw materials for the purpose of such transfer is then integrally connected with the process of manufacture.
The handling for the purpose of transfer may be manual or mechanical but if power is used for such opera tion, it cannot be denied that an activity has been carried on with the aid of power in the manufacturing process.
The use of diesel pump sets to fill the pans with brine is an activity with the aid of power and that activity is in relation to the manufacture.
It is not correct to say that the process of manufacture starts only when evaporation starts.
The preliminary steps like pumping brine and filling the salt pans form integral part of the manufacturing proc ess even though the change in the raw material commences only when evaporation takes place.
The preliminary activity cannot be disintegrated from the rest of the operations in the whole process of manufacture.
Similarly, when coke and lime are taken to the platform in definite proportions for the purpose of mixing, such operation is a step in the manufacturing process.
It precedes the feeding of the mix ture into the kiln where the burning takes place.
The whole process is an integrated one consisting of the lifting of the raw materials to the platform mixing coke and lime and then feeding into the kiln and burning.
These operations are so interrelated that without anyone of these operations manufacturing process is impossible to be completed.
There fore, if power is used in 127 anyone of these operations or anyone of the operations is carried on with the aid of power, it is a case when in or in relation to the manufacture the process is carried on with the aid of power.
[133 C G] 3.2 'Processing ' may be an intermediate stage in manu facture and until some change has taken place and the com modity retains a continuing substantial identity through the processing stage, one cannot say that it has been manufac tured.
That does not, however, mean that any operation in the course of such process is not in relation to the manu facture.
[136 E] Dy.
Commissioner, Sales Tax; Ernakulam vs Pio Food Packers, ; ; Union of India vs Delhi Cloth & General Mills, [1963] Suppl.
1 SCR 586; Standard Fireworks Industries vs Collector, , relied on.
Nirma Chemical Works & Ors.
vs Union of India & Ors.
, ; Chowgule & Co. Pvt. Ltd. vs Union of India, ; , referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 3634 (NEC) of 1989.
From the Judgment and Order dated 11.8.1989 of the Karnataka High Court in Election Petition No. 6 of 1988.
M.C. Bandare, Ranjit Thomas and Mrs. C.K. Sucharita for the Appellant.
Shanti Bhushan, B.R.L. Iyenger, R.B. Mehrotra and E.C. Vidyasagar, for the Respondents.
For the (State of Karnataka) M. Veerappa.
Raju to the State Legislative Coun cil, and directing the recount of the votes after excluding those of 242 nominated members.
The election was held by adopting the 'single transferable vote method '.
The polling took place on 3.7.
1988 and the counting was taken up on the next date, that is, 4.7. 1988.
After several rounds of counting the appellant was declared as the successful candi date.
The election in question relates to the Chitradurga Local Authorities Constituency, comprising 121 Mandal Pan chayats.
The last date and time fixed for receiving nomina tion papers was 3.00 p.m. on 3.6.
According to the appellant 's case, a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 28.5.
1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 members.
Accordingly, steps were taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Parishads Act) read with the rules framed thereunder, and 242 members were duly nominated in time to be included in the electoral roll.
This has been denied by the election 340 petitioner respondent No. 1, as also some of the respondents who contested the election.
According to their case, the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law.
The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law.
The Deputy Commissioner, who was impleaded in the elec tion petition as the 5th respondent (in this appeal also he is respondent No. 5), had triple role to play in connection with the disputed election.
He was authorised under the Parishads Act and the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 (hereinafter referred to as the Parishads Rules) to take steps for completing the nomination of the members; under section 13B of the Representa tion of the People Act, 1950, he was the Electoral Registra tion Officer for preparation and revision of the electoral roll; and he was also the Returning Officer under the Repre sentation of the People Act, 1951.
According to the case of the appellant, a resolution was passed by the Zilla Parishad on 28.5.
1988 nominating the aforementioned 242 members, and the Chief Secretary of the Zilla Parishad sent the list of the names to the Deputy Commissioner on 30.5.
The Deputy Commissioner was, under section 5(9) of the Parishads Act, required to publish the said names so as to complete the process of nomination.
He was also vested with the jurisdic tion to include the names in the electoral roll under the provisions of the Representation of the People Act, 1950.
It is relevant to note at this stage that the question of inclusion of the names in the electoral roll could arise only after the nomination was complete in the eye of law.
A nominated person was entitled to be included as a voter for the election to the Council Constituency after he became a member of the Mandal Panchayat and not before.
Having learnt about the nominations on the eve of the election, some persons challenged the same and objected before the Deputy Commissioner to the proposed publication.
However, the Deputy Commissioner on 1.6.1988 passed an order directing the necessary steps to be taken under the Parishads Act, and accordingly a list of the nominated members was pasted on the notice board of the office of the Deputy Commissioner.
Before the nominated persons could be treated to have become members of the Panchayats it was necessary that certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules.
Subsection (1) of section 40 of the Parishads Act, which is mentioned below, 341 makes it clear that a nominated person becomes the member of a Mandal Panchayat only on the publication of his name under section 5(9): "40.
Commencement of term of Office (1) The term of office of the members elected at a general election or at a second election held under sub section (7) of section 5, or nominated shall commence on the date imme diately after the expiry of the term of office of the out going members of the Mandal Panchayat or the period of appointment of an Administrative Committee or Administrator under section 8, or on the date of publication of their names under sub section (9) of section 5, whichever is later.
" The manner of publication of the names has been prescribed by r. 73 of the Parishads Rules in the following terms: "73.
Publication of names of members elected or nominated to Mandal Panchayat.
The Deputy Commissioner shall, as soon as conveniently may be, publish the list containing the names of the members elected or deemed to have been elected or nominated to the Mandal Panchayat by causing such list to be affixed on the notice board of his office, office of the Tahsildar, concerned Mandal Panchayat and in the Chavadi.
" With a view to complete the nomination, the Deputy Commis sioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildars and Mandal Panchayats and in the Chavadis.
The Deputy Commis sioner could have taken steps for inclusion of the names in the electoral roll of the State Council Constituency after receipt of the information of their due publication in the offices situated at different places.
There is a serious dispute as to when the necessary information became avail able at Chitradurga and the formal steps of including those names in the electoral roll were actually taken.
After examining the evidence led by the parties, the High Court has held that the names were not included in the electoral roll by 3.00 p.m. on 3.6.1988.
Mr. M.C. Bhandare, the learned counsel appearing in support of the appeal, has contended that the High Court fell in grave error in deciding the disputed issue against the appellant as it failed to 342 take note of the provisions of the Explanation to section 40(1) of the Parishads Act, which reads as follows: "Explanation.
When the names of members elected at a general election or at a second election held under sub section (7) of section 5 or nominated are published on more than one date, the date by which the names of not less than 2/3rd of the total number of members has been published shall be deemed to be the date of publication for ' purposes of this section.
" The learned counsel argued that the evidence on the record establishes that information of the publication of the names of more than 2/3rd of the total number of nominated persons had reached the Deputy Commissioner in time for the amend ment of the Council Constituency roll and the Deputy Commis sioner had actually made an order for the inclusion of the names in the roll on 2.6.1988.
Accordingly, the final elec toral roll including the nominated members was ready in the office of the Returning Officer, and the appellant, as a matter of fact, had inspected the same.
Reliance has been placed on his deposition as well as on the documentary evidence in the case.
The most important evidence in the case is to be found in the statement of the Deputy Commissioner examined as P.W. 4.
Besides, the election petitioner examined several other witnesses.
An examination of evidence on record leads to the conclusion that the Chief Secretary of the Zilla Parishad had sent the list of the nominated members to the Deputy Commissioner on 30.5.
1988 and a copy thereof was placed on the notice board of the Deputy Commissioner 's office on 1.6.1988.
However, that did not complete the process of nomination.
The provisions of section 40(1) of the Parishads Act make it abundantly clear that a nominated person would become a member of the Panchayat only after due publication of his name in accordance with r. 73.
It was therefore necessary to have the names of the nominated persons affixed on the notice board of the office of the Tahsildars, the notice boards of the Mandal Panchayats and in the Chavadis.
Mr. Bhandare is right that in view of the Explanation to section 40(1) it was not necessary for the Deputy Commissioner to have waited for the information in this regard from all the places.
On his satisfaction that the publication of 2/3rd of the total number of the names were complete, he was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by including all the nominated members.
But the ques tion is as to when the Deputy Commissioner 343 did receive the information about the 2/3rd of the total number, and further whether he, as a matter of fact, revised the electoral roll before 3.00 p.m. on the 3rd of June, 1988.
It is significant to note that the electoral roll did not get automatically amended on the completion of the process of nomination of the additional members.
Ordinarily the question of inclusion of a new name in the electoral roll arises only when an application is made before the Electoral Registration Officer in this regard, but the power can be exercised by the Officer even without such an appli cation.
In the present case it appears that a tactical battle was going on in the political arena between the two rival groups; one attempting to get the electoral roll amended by the inclusion of the nominated members and the other trying to foil it.
The Deputy Commissioner was under pressure from both sides, and as the evidence discloses, he had to consider the different stands taken before him, which slowed down the entire process.
Let us examine the evidence in this background.
The Deputy Commissioner has, in his evidence, stated that his office received the information about the nomina tion from the Zilla Parishad on 30.5.
1988 when he was at Bangalore.
He returned back to Chitradurga on 31.5.
1988 and examined a copy of the resolution of the Parishad as also the list of the nominated persons.
Soon thereafter he was approached by the two groups, one supporting the resolution and the other opposing it.
Ultimately he decided to publish the list as required by section 5(9) of the Parishads Act read with r. 73 of the Parishads Rules.
Accordingly, a copy of the list was placed on the notice board of his office and lists for the publication in the Taluk offices were handed over to the Tahsildars who were already present in Chitra durga The lists for the publication in the offices of the Mandal Panchayats and Chavadis, which were scattered at considerable distances, were sent to the Chief Secretary of the Zilla Parishad.
The Deputy Commissioner postponed the further step for modification of the electoral roll awaiting the report on publication from the different offices.
Some reports from the Taluk offices were received on 1.6.1988 itself, but the Deputy Commissioner in his evidence was not in a position to give the details.
His examination in chief was, therefore, discontinued and he was asked to bring the documents on the next date with reference to which he could answer the further questions.
Accordingly, he later appeared with the papers and stated that the last reports regarding the publication from the Taluk Office of certain places were received on 4.6.1988.
In his cross examination the Deputy Commissioner stated that on the basis of his records he could say that he had received reports from 5 Taluk Offices only on 1.6.1988, and 344 none from the Mandal Pancnayats; and on 2.6.1988 he had received reports about the publication in the Mandal Pan chayats from 2 Taluks.
As there were only 9 Taluks in his district, it can be presumed that information about the publication of 2/3rd number at Taluk offices had reached the Deputy Commissioner by the evening of the 2nd June, 1988.
However, there does not appear to be any relevant evidence available on the records, and none has been shown to us by the learned counsel, with regard to the publication of the requisite number of names in the Mandal Panchayat offices and in the Chavadis.
It has been contended on behalf of the appellant that since the burden is on the election petition er to prove such facts which may vitiate the election, he must fail in the present state of evidence.
Before adverting to this aspect we propose to consider the other evidence relating to the revision of the electoral roll.
The electoral roll was produced before the High Court and was marked as Ext.
Although it ought to have borne the dates of its preparation and revision, none is to be found there.
The inclusion of the names of the nominated members was, according to the evidence, done by attaching slips to Ext.
The Deputy Commissioner was unable to state as to the date on which Ext.
P 6 was prepared and typed.
So far the "updated Voters ' List" was concerned, it was placed on the notice board of the office of the Deputy Commissioner at 8.55.
p.m. on 3.8.1988, after a lot of wrangling between the rival groups.
In answer to a question in cross examination the Deputy Commissioner stated, "I cannot say if the preparation of this list was complete by 3.00 p.m. on 3.6.1988 as it is a ministerial part of it." As has been mentioned earlier, the dispute about the validi ty of the belated nominations had been raised on 31.5.
1988 before the Deputy Commissioner when he returned to Chitra durga from Bangalore and he took a decision on 1.6.1988 to proceed with the publication so as to complete the process of nomination.
According to his statement, which he made after verifying from the documents, the necessary informa tion from the Mandal Panchayats and Chavadis started reach ing him on 2.6.1988.
But they were inadequate as they were only from two Taluks.
At the earliest the information about the publication of the necessary number of names reached Chitradurga on 3.6.1988 when the two groups were arrayed against each other in his office, one urging the revision of the electoral roll and the other opposing it.
The deadline was 3.00 p.m. on 3.6.1988 which was approaching fast.
But it 345 is important to note that the Deputy Commissioner was not aware that the period available for the revision of the electoral roll was expiring in the afternoon.
He was under a wrong impression that the entire calender date of 3.6.1988 was available for the purpose.
Towards the end of paragraph 3 in his written statement the Deputy Commissioner categori cally stated that he "was under a bona fide impression that direction for the inclusion of the name in the electoral roll of the constituency shall be given under Section 23 at any time on the last date for making nominations".
In the earlier writ petition between the parties (in which the issue raised was not decided) the respondent No. 5 had made a similar statement in paragraph 2 of his reply.
Being under that wrong impression he was not in a hurry to take the decision in regard to the revision of the electoral roll quickly.
The election petitioner, P.W. 1, was himself not a candidate but was an active supporter of one of the candi dates and was seriously involved in the question of the revision of the roll, and, as stated in his evidence, the publication of the names under r. 73 of the Parishads Rules was complete by 3.6.1988 only in some of the Mandal Panchay ats.
After the deadline at 3.00 p.m. on 3.6.1988 was crossed an application, which has been marked as 'Annexure R III ', signed by the Secretary, District Janata Party, was given to the Deputy Commissioner asserting that no further additions or deletions in the electoral roll were permissible and an endorsement to that effect should be made by the Returning Officer.
The Deputy Commissioner did not immediately give his reply thereto.
The parties were also insisting for the publication of the electoral roll in its final shape.
Ac cording to the further evidence of P.W. 1, the Deputy Com missioner promised them that he would contact the Chief Electoral Officer at Bangalore by telephone and only there after he would decide on his further action.
The party workers including the witness awaited the further develop ment and at 8.55 p.m. the Deputy Commissioner declared that the names of the newly nominated members were included in the voters list.
Soon thereafter he also replied to the letter of the Janata Party Secretary by a letter headed as "ENDORSEMENT", stating, "With reference to the above, you are hereby informed that action has been taken to include the nominated members by the Zilla Parishad to the Mandal Panchayat in the District and as per Section 27(c) read with Section 23(3) of the R.P. Act, 1950, the Electoral Roll for Local Authority Constituency has been up dated and a copy pasted in the office on 3rd June 1988 at 8.55 P.M." 346 Two other Janata Party members have been examined as P.Ws, 2 and 3 in the case supporting the above version.
Mr. Bhandare has relied upon the oral evidence of the appellant wherein he claimed to have gone to the office of the Deputy Commissioner on 2.6. 1988 to secure a prescribed form for filing his nomination as a candidate in the elec tion and was allowed to examine the electoral roll which was kept on a table in the office.
He asserts that after verify ing his name and serial number in the list he discovered that the names of nominated members were also included therein.
He stuck to this story in the cross examination and insisted that it was at 11.00 in the morning on 2.6.1988 that he had seen the revised roll.
It is difficult to accept his case on this evidence.
According to the Deputy Commis sioner himself the report about the publication in the office of the Mandal Panchayats from only two Taluks were received by the evening of 2.6.
1988 and it is, therefore, not believable that the Deputy Commissioner had amended the roll before 3.6.1988.
The Deputy Commissioner has not claimed to have revised the roll on 2.6.1988.
On the other hand, he made a very significant assertion in his written statement in the present election petition which is quoted below: "The Deputy Commissioner issued direction for the inclusion of the names of nominated members on 3.6.1988 and the elec toral roll for local Authorities Constituency has been up dated and a copy pasted in the office on 3.6.1988 at 8.55 P.M." In the earlier writ petition also he had made a similar statement, as mentioned below, towards the end of paragraph 2 of his reply: "The Deputy Commissioner issued direction for the inclusion of the name of Respondents 3 to 246 on 3 6 1988 and the electoral roll for Local Authorities Constituency has been up dated and a copy pasted in the office on 3 6 1988 at 8 55 P.M." A plain reading of the above statement suggests that both the updating of the electoral roll and pasting a copy there of took place on 3.6.
1988 at 8.55 p.m.
The statement cannot be interpreted to mean that the revision of the electoral roll had been done about 6 hours earlier.
The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression 347 that the revision was permissible till the midnight; and (iii) in spite of the available documents to him he was not in a position to assert that the report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline, strongly support the case of the election petitioner.
It has been contended on behalf of the appellant that the burden to prove that the names of the nominated members were not included in the electoral roll in time is on the election petitioner and unless he is able to lead acceptable evidence to discharge the same, the election petition is bound to fail.
The argument is that the oral evidence led by the petitioner cannot be accepted for recording a finding that the controversial names had not actually been included in the electoral roll before 3.00 p.m. which was in the custody of the Deputy Commissioner.
The fact that political opponents of the appellant who were opposing the inclusion of the names were repeatedly asking the Deputy Commissioner orally as well as in writing to inform them whether the names were actually included in the electoral roll or not itself shows that they could not be sure of the actual position till 8.55 p.m.
The bald assertion of the witnesses for the petitioner in this regard cannot be given much weight.
Thus the position, according to the learned counsel, available from the records of the case is that there is no reliable evidence on the crucial issue and, therefore, the election petition must be dismissed.
Apart from supporting the finding of fact recorded by the High Court in favour of the election petitioner, Mr. Shanti Bhushan, learned counsel for the respondents, argued that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. when the alleged inclu sion of the names was made public and not earlier.
He rea lied upon the decision in Bachhittar Singh vs State of Punjab, [1962] Supp.
3 SCR 713.
The appellant in that case was appointed as a Kanungo and later promoted as Assistant Consolidation Officer in the former State of Pepsu.
A de partmental inquiry was held against him as a result of which he was dismissed by the Revenue Secretary.
He preferred an appeal to the State Government.
The Revenue Minister ex pressed his opinion in writing that instead of his dismissal he should be reverted to his original post of Kanungo.
The said remarks were, however, not communicated to the appel lant officially and the State of Pepsu was merged with the State of Punjab.
The matter was thereafter re examined and the Chief Minister passed an order confirming the dismissal of the appellant.
This order was com 348 municated to the appellant which led to the filing of the writ petition in the High Court.
The High Court dismissed the writ application and the appellant appealed before this Court by special leave.
One of the questions considered by this Court was as to the effect of the order in writing by the Revenue Minister, Pepsu, recommending reversion of the appellant in place of his dismissal.
For the reasons, men tioned below, the Court held that the order of the Revenue Minister was of no avail to the appellant.
"Thus it is of essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order.
For until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communi cation the order cannot be regarded as anything more than provisional in character.
As has been pointed out earlier, the evidence of the appellant that he had actually seen the final voters list in the office of the Deputy Commissioner must be rejected as unreliable.
There is no acceptable evidence at all to show as to when the alleged corrections were made in the voters list.
At 8.55 p.m. on 3.6.1988 the inclusion of the names was made public for the first time.
The question is as to whether the electoral roll will be deemed to have been modified when it was made public at 8.55 p.m. or earlier when the actual correction in the list was made in the Deputy Commissioner 's office which fact was kept confiden tial in spite of repeated demands for information.
Besides fixing the identity of the persons to be allowed to vote at the election, the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election.
It is also helpful to such persons in assessing their chances of success by reference to the voters finally included in the roll.
For the purpose of canvassing also, the intending contestant requires a copy of the final vot ers ' list.
The intending contestants and their supporters thus heavily depend upon the final electoral roll for decid ing their future conduct, and it is, therefore, extremely essential that it is made available to them before the expiry of the period fixed for filing the nomination papers.
It the roll as it stood earlier, was confidentially correct ed by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared according to law.
349 The observations in Bachhittar Singh 's case will be fully applicable in as much as the Officer here also could recon sider the list again.
Mr. Bhandare in reply relied upon the judgment in B.K. Srinivasan and Others vs State of Karnataka and Others, , and argued that unlike the Karnataka Town and Country Planning Act, 1961 and the Rules which were under consideration in the said case, the Representation of the People Act does not require a display of the electoral roll.
The learned counsel is correct and he rightly said that putting the final voters list on the notice board is not a necessary requirement under the law.
But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information or knowledge to persons who are interested in finding out its final shape.
The reported case was dealing with the principle of subordinate legislation and in paragraph 15 of the judgment made important observa tions which support the respondents ' point of view.
It was stated thus: "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified direct ly and reliably of the law and all changes and additions made to it by various process.
Whether law is viewed from the standpoint of the 'conscientious good man ' seeking to abide by the law or from the standpoint of Justice Holmes 's 'Unconscientious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.
" It was further observed that unlike Parliamentary legisla tion which is publicly made, delegated or subordinate legis lation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary and it was, therefore, necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not.
It will then take effect from the date of such publication or promulgation The decision instead of helping the appel lant is clearly against him.
The vital difference between an Act of a legisla ture and a subordinate legislation was earlier noted in Harla vs State of Rajasthan, ; The Acts of the legislature are passed by the accredited representatives of the people who in theory can be trusted to 350 see that their constituents know what has been done, and this is done only after debates take place which are open to the public.
The matter receives wide publicity through the media.
But the case is different with the delegated legisla tion and, if we may add, also in the case of orders passed by the authorities like that in the present appeal before us.
The mode of publication can vary but there must be reasonable publication of some sort.
A reference may also be made to the decision in Fatma Haji Ali Mohammad Haji and Others vs The State of Bombay,, ; , where the question as to whether certain powers given to the Govern ment for issuing a direction to the Collector not to act in accordance with the prescribed rules had been actually exercised or not was under consideration.
It was stated that the power had to be exercised in clear and unambiguous terms and, "the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public." Before closing this discussion we should refer to the case of State of Maharashtra vs Mayer Hans George, [1965] 1 SCR page 123, where the English decision of Johnson vs Saragant & Sons, , relied upon by this Court in Harla 's case came to be considered.
The respondent Mayer Hans George was a German Smuggler who was carrying gold from Switzerland to Manila by an aeroplane which stopped at Bombay for sometime.
The respondent did not get down from the plane but he was searched by the Indian Officers and was found to be carrying gold illegally.
He was charged with criminal activity on the basis of a notification requiring him to declare the gold as transhipment cargo in the mani fest of the aircraft, which he had failed to do.
His defence was that he had no knowledge of this notification.
After his conviction by the trial court, the High Court on appeal acquitted him.
The Supreme Court by a majority judgment reversed the decision and found him guilty on the ground that the notification had been published in the official gazette of India.
The defence plea that since he was a foreigner and was, therefore, not expected to be aware of the notification was rejected.
While discussing the argu ments addressed in the case, the Court appreciated the criticism of Prof. C.K. Allen against the judgment in John son vs Sargant, but there was no comment or suggestion against the correctness of the judgment in Harla vs The State of Rajasthan.
On the other hand, the observations at page 163 G H are on the same lines.
It was stated that where there is no statutory requirement as to the mode or form of publication, "we conceive the rule to be that it is necessary that it should be published in the usual 351 form i.e., by publication within the country in such media as generally adopted to notify to all persons concerned the making of the rules." Having regard to the nature and pur pose of the power for rectification of the electoral roll by the Electoral Registration Officer, the principle enunciated in the abovementioned cases must be held to be applicable.
We accordingly hold that in the eye of law the electoral roll in question was not modified by the inclusion of the names of the nominated members before 8.55 p.m. on 3.6.1988.
We, therefore, affirm the decision of the High Court and dismiss the appeal with costs.
R.S.S. Appeal dismissed.
[/INST]Respondent Landlady started an eviction proceeding under Section 13(1)(c) of the Bombay Rent Act against the petitioner tenant, running a shop, selling sweet meats and farsen on the tenanted premises, as he was convicted twice under the Prevention of Food Adulteration Act.
Accepting claim of the land lady the High Court ordered eviction.
Tenant contending that "convicted of using the premises" in Section 13(1)(c) be limited to offences involving the user of the premises that the provision does not cover non residential premises, filed the Special Leave Petition.
Dismissing the petition, this Court, HELD: 1.
Section 13(1)(c) covers both residential as well as non residential premises.
If clause (c) is not applicable to business premises, there is no other similar provision in the Bombay Rent Act relating to the business premises.
The consequence would be that the tenant in business premises could use the premises for committing any offence or he could commit nuisance and annoyance to the adjoining or neighbouring occupiers and yet claim that he is not liable to be evicted on that grounds.
Whereas, the tenant of residential premises would not be able to commit such offence without the penalty of eviction.
Such an interpretation would render the Section vulnerable to attack under Article 14 of the Constitution.
[155D G].
153 2.
The expression "convicted of using the premises:" cannot be given too liberal construction so as to cover every case of conviction of the tenant.[156B] 3.
Section 13(1)(c) was not intended to be a moral code of conduct for the tenant.
For each and every offence committed at the premises, the tenant cannot be exposed to the risk of eviction.
The crime may be forced upon the tenant at the premises by third parties.
There may be casual or incidental crimes.
There may be technical offences connected with the trade or licence to trade.
There may be crimes where use of the premises has nothing to do except being the scene of the offence.
All such cases cannot satisfy the requirements of Section 13(1)(c).
[157A B] 4.
The tenant must take advantage of his tenancy of the premises and of the opportunity they afford for permitting the crime.
Only such crimes could fall within the scope of Section 13(1)(c).
There need not be continuous for repeated user of the premises for committing such crimes.
[157B C] [In the instant case, the tenant used the premises for carrying out illegal sale of adulterated food along with his usual business in sweet meats and farsen.
He used the premises deliberately and taken advantage of his tenancy for committing the offences in the course of his trade.
He can be evicted under Section 13(1)(c).] [157C D] section Schneiders and Sons Ltd. vs Abrahams,
</s>
|
<s>[INST] Summarize the judgementWrit Petition (Crimi nal) No. 184 of 1989.
(Under Article 32 of the Constitution of India).
Kapil Sibbal, K.K. Lahiri, K.R. Nagaraja and R.S. Hegde for the Petitioner.
V.C. Mahanjan, T.V.S.N. Chari and Ms. A. Subhashini for the Respondents.
344 The Judgment of the Court was delivered by DUTT, J.
In this writ petition the petitioner has chal lenged the validity of the detention order dated January 19, 1989 passed under the , hereinaf ter referred to as 'the Act ', by virtue of which the peti tioner has been under detention since the said date.
The allegations made in the grounds of detention need not be stated, for only legal submissions have been made on behalf of the petitioner in challenging the order of detention.
The order of detention dated January 19, 1989 reads as follows: "WHEREAS, I, Vijay Karan, Commissioner of Police, Delhi, am satisfied that with a view to prevent Sh.
Jitender Tyagi s/o Sh.
Ram Nath Tyagi, R/o VIII.
Khajuri, Police Station.
Kila, Distt.
Meerut (Uttar Pradesh) aged at about 25/26 from acting in a manner prejudi cial to the maintenance of public order, it is necessary to make an order directing that the said Sh.
Jitender Tyagi may be detained.
Now, therefore, in exercise of the powers conferred vide sub section (2) of section 3 of the as delegated to me vide Delhi Administration, Delhi 's order No. F2/1/88 H.P. II, dated 11.1.89.
I hereby direct that the said Sh.
Jitender Tyagi be detained and kept in Central Jail, Tihar, Delhi.
" It, thus, appears from the order of detention that it was passed by the Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act as delegated to him by the Delhi Administration.
The order of detention was approved by the Administrator of Delhi by his order dated January 31, 1989.
Paragraph 3 of the said order is in the following terms: "3.
Now, therefore, in exercise of the powers conferred upon him by sub section (4) of section 3 of the , the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 de taining Sh.
Jitender Tyagi and further directs that Sh.
Jitender Tyagi be kept in custody in Central Jail, Tihar, New Delhi.
The first point that has been strenuously urged by Mr. Kapil Sibal, learned Counsel appearing on behalf of the petitioner, is that the order of detention not having been approved within a period of 345 twelve days, as provided in sub section (4) of section 3 of the Act, it had spent its force on the expiry of the said period and, accordingly, the detention of the petitioner is illegal.
Section 3 of the Act provides for the power to make orders of detention under certain circumstances.
Sub section (4) of section 3 reads as follows: "(4).
When any order is made under this sec tion by an officer mentioned in sub section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub section shall apply sub ject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.
" Under sub section (4) of section 3, "no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government".
The question that arises for our consid eration relates to the computation of the period of twelve days.
To be more explicit, the question is whether in com puting the period of twelve days, the day on which the order of detention is passed should be included or not.
It is submitted on behalf of the petitioner that the day on which the order of detention was passed should be included and the order approving the detention having been passed on January 31, 1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force.
On the other hand, it is contended on behalf of the respondents that the day on which the detention order was passed should be excluded and, accordingly, the detention of the petitioner having been approved on January 31, 1989, it was quite within the period of twelve days.
Further, it is the case of the respondents that the order of detention was, as a matter of fact, approved on January 26, 1989 and by the order dated January 31, 1989, the order of approval was communicated to the authorities concerned.
346 We may first consider the contention of the respondents that the order of detention was duly approved on January 26, 1989.
A statement in that regard has been made in the coun ter affidavit of the respondents.
We are, however, unable to accept the same.
We have already extracted above paragraph 3 of the order of detention dated January 31, 1989 in which it has been categorically stated "the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 detaining Sh.
Jitender Tyagi.
" After the said categorical statement in paragraph 3, it is difficult to accept the contention of the respondents that the said order dated January 31, 1989 was made for the purpose of communi cating the approval of the order of detention.
In our view, there can be no doubt, whatsoever, that the order of deten tion was approved by the said order dated January 31, 1989.
Now, we may consider the question as to the computation of twelve days as referred to in sub section (4) of section 3.
Sub section (4), inter alia, provides that when an order is made by an officer mentioned in sub section (3), he shall forthwith report the facts to the State Government.
It is contended on behalf of the petitioner that under sub section (4), the officer has to act forthwith after the making of the order in reporting the fact to the State Government and this is sufficient indication that the day on which the order of detention is made should be included in computing the period of twelve days.
In our opinion, sub section (4) has given a clear indi cation as to the computation of twelve days.
The period of twelve days has to be calculated 'after ' the making of the order of detention.
Thus, it is apparent that the period of twelve days comes after the making of the order of deten tion.
It is true that in sub section (4), the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indica tion that the said period shall be computed after the order is made.
In other words, sub section (4) itself excludes the day on which the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
It is, however, submitted that when two interpretations are possible, that which enures to the benefit of the detenu should be accepted.
In our opinion, sub section (4) admits of only one interpretation regarding the computation of twelve days and, accord 347 ingly, the question as to the adoption of the interpretation which enures to the benefit of the detenu does not arise.
The view which we take, is in accordance with the well established canons of interpretations.
It has been stated in Stroud 's Judicial Dictionary, Third Edition, Volume I, page 86, as follows: "Where an act has to be done within so many days "after" a given event, the day of such event is not to be reckoned In Smt.
Manjuli vs Civil Judge, AIR 1970 Bom.
1, the provision of section 15(1) of the Village Panchayats Act, 1958 came up for interpretation before the Nagput Bench of the Bombay High Court.
Section 15(1), inter alia, provides that any person who is qualified to vote is entitled to challenge the validity of the election "within 15 days after the date of the declaration of the result of the election".
The High Court in interpreting the provision rightly laid stress on the word "after" and held that the day of which the result was declared must be excluded.
This Court had also occasion to construe rule 119 of the Election Rules framed under the Representation of the People Act in T.C. Basappa vs T. Nagappa, ; Rule 119 provides, inter alia, that an election petition against a returned candidate is to be presented at any time after the publica tion of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113.
Mukh erjea, J. (as he than was) speaking for the Bench observed as follows: The High court seems to think that in comput ing period of 14 days the date of publication is to be included.
This seems to us to be an unwarranted view to take which is opposed to the ordinary canons of construction.
Dr. Tek Chand appearing for the respondent No. 1, plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's enter taining election petition after the prescribed period in the present case.
" In re: V.S. Mehta, AIR 1970 A.P. 234 which is a decision of the Andhra Pradesh High Court, relating to the computa tion of the period of three months in section 106 of the Factories Act Section 106 provides that no court shall take cognizance of any offence punishable 348 under the Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector.
The question before the High Court was whether in computing the said period of three months, the day on which the offence was alleged to be committed should be excluded or not.
The Andhra Pradesh High Court has taken the view that the term "within three months of the date" in section 106 of the Factories Act means 'within three calendar months after the commission of the offence came to the knowledge of an In spector ' and, consequently, the date of the knowledge, that is, the date of inspection should be excluded in computing the period of three months.
That interpretation resulting in the exclusion of the date of knowledge should be made as the High Court considered the expression "within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector" as "within three months after the date on which etc . . ".
Thus, what is significant to be noticed is the word "after" which the High Court has substituted for the word 'of ' in the expression "of the date" in section 106.
In Haru Das Gupta vs State of West Bengal, ; , the question was whether under section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970, the order or decision of the State Government confirming the detention order was made within three months from the date of detention.
In holding that in computing the said period of three months, the date of detention shall be excluded, this Court has laid down that the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day.
This Court has agreed to the view expressed by Wills, J. in Ratcliff vs Bartholomew, that a complaint under the Prevention of Cruelty to Animals Act filed on June 30 in respect of an act alleged to have been committed on May 30 was "within one calendar month after the cause of such complaint shall arise".
The principle on the basis of which that view was expressed by Wills, J. is that the day on which the cause for the complaint arose had to be excluded while computing the period within which under the Act, the complaint had to be filed.
Thus, it is apparent from the above decision that the day on which the cause of action arises has to be excluded in computing a particular period of time and, in the instant case, such an exclusion has to be made in view of the word "after" in sub section (4) of section 3 of the Act.
349 The petitioner has, however, placed reliance on a few decisions which will be stated presently.
In Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR (1961) 1 All.
427 the Allahabad High Court has, on an interpreta tion of sub section (3) of section 3 of the , which is verbatim the same as subsec tion (4) of section 3 of the Act, with which we are con cerned, held that in computing the period of twelve days, the day on which the order of detention is passed should be included.
One of the reasons for the view expressed by the Allahabad High Court, which is strongly relied on by the learned Counsel for the detenu, is that if the day on which the order is passed is to be excluded .
from twelve days prescribed for the approval of the said order, then the consequence of the acceptance of this interpretation would be that it would not be possible for the State Government to approve of the order until after the day on which it was passed had expired.
It has been observed that such an unrea sonable consequence was not contemplated by the legislature.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legislature does not arise.
In our opinion, the word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of detention is passed should be included.
The Allahabad High Court has omitted to consider the word "after" in the section.
We are unable to subscribe to the view of the High Court that if the day on which the order of detention was made is excluded from the calculation of the period of twelve days, in that case, the position would be that it would not be possible for the State Government to approve of the order of deten tion until after the day on which it was passed had expired.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Gov ernment can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
In our opinion, Prabhu Narain Singh 's case (supra) has not correctly interpreted the provision of section 3(3) of the in regard to the computation of the period of twelve days.
The learned Counsel for the detenu has placed reliance upon two other decisions, namely, Nillapareddi Chandrasekhra Reddy vs The Government of Andhra Pradesh and Another, and C. Krishna Reddy and Another vs Commissioner of Police, Hyderabad 350 and Others, , both are of the Andhra Pradesh High Court.
These two decisions relate to the commu nication to the detenu of the grounds of detention not later than five days from the date of detention as provided in section 8(1) of the Maintenance of Internal Security Act, 1951.
We do not think that we should be justified in ex pressing any opinion as to the correctness or otherwise of the computation of the said period of five days as made in these two decisions, for the language that is used in sub section (4) of section 3 of the Act, with which we are concerned, is different from that used in section 8(1) of the Maintenance of Internal Security Act, 1951.
Similarly, the decision of the Patna High Court in Gulam Sarwar vs State of Bihar and Others, relied on by the respondents also related to the computation of the period of five days, as contained in section 8(1) of the Maintenance of Internal Security Act, 1951.
In this case, a contrary view has been expressed.
In our view all these decisions are of no help to us having regard to the differ ence in language of the provision with which we are con cerned.
Be that as it may, we have no hesitation in holding that in computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded and, upon such computation, it must be held that the approval of the order of detention was made within twelve days after the making of the order of detention.
The next point that has been urged on behalf of the detenu is that the order dated January 11, 1989 of the Administrator of the Union Territory of Delhi, directing that during the period from 19.1.1989 to 18.4.
1989 the Commissioner of Police, Delhi, may also exercise the powers of detaining authority under sub section (2) of section 3 of the Act, is ultra vires section 3(3) of the Act.
Section3(3) provides that if, having regard to the circumstances pre vailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period, as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (2), exer cise the powers conferred by the said sub section.
It is contended that as no circumstances, as mentioned in section 3(3) in respect of which satisfaction has to be made by the Administrator of Delhi, have been stated in the order, nor in the grounds of detention, the said order dated January 11, 1989 is illegal and invalid.
This point has not been taken in the writ petition and, accordingly, the Delhi Administration did not get an opportunity to controvert the allega 351 tions made for the first time in the argument.
The point is not one involving only a question of law, but it also in volves question of fact.
In the circumstances, we do not think we shall be justified in allowing the petitioner to take the point for the first time in the argument.
The next point that has been urged by the learned Coun sel for the petitioner is that the detaining authority, that is, the Commissioner of Police, Delhi, not having supplied to the detenu a copy of the said order dated January 11, 1989 of the Administrator of Delhi directing him to exercise the powers of the detaining authority under subsection (2) of section 3 of the Act, a serious prejudice has been caused to the detenu in that, if the copy of the said order had been supplied, the detenu might have contended that no such circumstances, as contemplated by sub section (3) of section 3 of the Act, were prevailing and that the delegation of the powers on the Commissioner of Police of Delhi was illegal and invalid and, consequently, the order of detention was inoperative and void.
The Act does not provide for supplying a copy of an order under section 3(3) of the Act.
The said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order dated January 11, 1989 passed under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satisfaction of the Commissioner of Police in making the impugned order of detention.
We do not think there is any substance in the contention made on behalf of the detenu and it is, accordingly, rejected.
In the grounds of detention it is, inter alia, stated as follows: "Though Sh.
Jitender Tyagi is in judicial custody, it is reported that applica tion for his bail has been filed in the court in case FIR No. 6 dated 7.1.89 u/s 25/54/59 Arms Act, P.S. Yamuna Vihar, Delhi.
It is likely that he may be released in these cases on bail and again indulge in nefarious activi ties of extortion and intimidation.
Keeping in view his activities, I have issued order for his detention under section 3(2) of the Na tional Security Act, 1980, so that his crimi nal activities which are prejudicial to the maintenance of public order, could be stopped.
" It is urged on behalf of the detenu that only in one case the detenu has made an application for bail, but in the said statement of 352 the Commissioner of Police in the grounds of detention, he was proceeding on the assumption that in all the cases the detenu had made applications for bail.
Accordingly, it is submitted that this shows complete non application of mind by the detaining authority.
We are unable to accept the contention.
Mr. Mahajan, learned Counsel for the respond ents, has produced before us the records of the detaining authority from which it appears that a copy of the applica tion for bail was with the detaining authority before he made the order of detention.
So, the contention that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him is not correct.
There is, therefore, no sub stance in this contention.
Equally non meritorious is the contention that a copy of the application for bail has not been supplied to the de taining authority for his consideration.
It is submitted that if such a copy had been supplied to the detaining authority, he would have considered the statement of the detenu that he was falsely implicated in these cases.
The contention is based on erroneous assumption that a copy of the bail application was not supplied to the detaining authority.
Indeed, as noticed already, a copy of the bail 'application was with the detaining authority before he had passed the order of detention.
This contention is also rejected.
No other point has been urged in this writ petition.
For the reasons aforesaid, the writ petition is dismissed.
T.N.A. Petition dismissed.
[/INST]Sub section (4) of section 3 of the provides that no order passed by an officer men tioned in sub section (3) shah remain in force for more than twelve days after the making thereof unless, in the mean time, it has been approved by the State Government.
The Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act, as delegated to him by the Delhi Administration, passed an order on 19.1.1989 detaining the petitioner The order of detention was approved by the Administrator on 31.1.1989.
The petitioner filed a writ petition in this Court challenging the validity of the detention order contending that (i) the day on which the order of detention was passed should he included in the period of computation of twelve days and since the order of detention was approved on 31.1.1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force; (ii) the non supply of the copy of order delegating the power of deten tion on the Commissioner of Police has seriously prejudiced the detenu; and (iii) there was serious non application of mind by the detaining authority.
342 Dismissing the petition, this Court, HELD: 1.
In computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded.
Therefore the approval of the order of detention was made within twelve days after the making of the order of deten tion.
[350D] 1.1 Sub section (4) of section 3 has given a clear indication as to the computation of twelve days.
It excludes the day on which the order is made.
The word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of deten tion is passed should be included.
The period of twelve days has to be calculated 'after ' the making of the order of detention, i.e. the day on which the cause of action arises has to be excluded in computing the period of time.
[346E F; 349D; 348H] 1.2 It is true that in sub section (4) the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is clear indica tion that the said period shah be computed after the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
[346F G] 2.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legisla ture does not arise.
[349D] 2.1 Sub section (4) of section 3 admits of only one interpretation regarding the computation of twelve days and, accordingly, the question as to the adoption of the inter pretation which ensures to the benefit of the detenu does not arise.
[346H; 347A] T.C. Basappa vs T. Nagappa, ; ; Haru Das Gupta vs State of West Bengal, ; and Ratcliff vs Bartholomew, , followed.
Nillapareddi Chandrasekhara Reddy vs The Government of Andhra Pradesh and Anr., ; C. Krishna Reddy and Anr.
vs Commissioner of Police Hyderabad & Ors., 343 and Gulam Sarwar vs State of Bihar & Ors.
, , distinguished.
Manjuli vs Civil Judge, AIR 1970 Bom.
1 and In re: V.S. Mehta, AIR 1970 AP 234, approved.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Government can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
[349F] Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR 1961 1 All. 427, disapproved.
The Act does not provide for supplying a copy of an order under Section 3(3) of the Act.
In the instant case, the said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satis faction of the Commissioner of Police in making the impugned order of detention.
[351D E] 5.
In the instant case, a copy of the application for bail was with the detaining authority before he made the order of detention.
So, it is not correct to say that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him.
Accordingly there was no non application of mind by the detaining authority.
[352A B & C]
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<s>[INST] Summarize the judgementAppeal No.84 of 1960.
888 Appeal from the judgment and decree dated July 26, 1956.
of the Bombay, High Court in Appeal No. he 138 of 1956.
The appellant in person.
B. R. L. Ayengar and D. Gupta, for the respondent.
April 12.
The Judgment of the Court was delivered by SINHA, C. J.
The main question for decision in this appeal, on a certificate of fitness granted by the ' High Court of Judicature at Bombay, is whether a public servant, who has been officiating in a higher post but has been reverted to his substantive rank as a result of an adverse finding against him in a departmental enquiry for misconduct, can be said to have been reduced in rank within the meaning of section 240(3) of the Government of India Act, 1935.
The learned Civil Judge, Senior Division, by his, Judgment and Decree dated October 31, 1955, held that it was so.
The High Court of Bombay, on a first appeal from that decision, by its Judgment and Decree dated July 26, 1956, has held to the contrary.
In so far as it is necessary for the determination of this appeal, the facts of this case may shortly be stated as follows.
The appellant was holding the rank of a Mamlatdar in the First Grade and Was officiating as a District Deputy Collector.
In the latter capacity he was functioning as a District Supplies Officer.
He had to undertake tours in the discharge of his official duties for which he maintained a motor car.
In respect of one of his travelling allowance bills, it was found that he had charged travelling allowance in respect of 59 miles whereas the correct distance was only 51 miles.
A departmental enquiry was held against him as a result of which he was reverted to his original rank as Mamlatdar, by virtue of the Order of the Government dated August 11, 1948, (exhibit 35), which was to the following effect: "After careful consideration Government have decided to revert you to Mamlatdar for a period of 889 three years and have further directed that you should refund the excess mileage drawn by you in respect of the three journeys.
" The appellant made a number of representations to the Government challenging the correctness of the findings against him and praying for re consideration of the Order of Reversion passed against, him but to no effect, in spite of the fact that ultimately the Accountant General gave his opinion that the appellant had not overcharged and that there was no fraud involved in the travelling allowance bill which was the subject matter of the charge against him.
But ultimately, by a Notification date& March 26, 1951, (exhibit 61), the appellant was promoted to the Selection Grade with effect from August 1, 1950, but even so the Order of Reversion passed against the appellant remained effective and appears to have affected his place in the Selection Grade.
Eventually, the appellant retired from service on superannuation with effect from November 28, 1953.
He filed his suit against the State of Bombay on August 2, 1954, for a declaration that the Order of the Government dated August 11, 1948, was void, inoperative, wrongful, illegal and ultra vires, and for recovery of Rs. 12,866 odd or account of his arrears of salary, allowances, etc.
with interest and future interest.
The learned Civil Judge Senior Division, at Belgaum, came to the conclusion that the first part of the departmental enquiry held against the plaintiff leading up to the findings against him was free from any defect but that he had no been given the opportunity of showing cause against the punishment proposed to be inflicted upon him a a result of those findings, in so far as no show cause notice was given to him nor a copy of the enquire, report showing the grounds on which the findings ha, been based.
There was, thus, according to the finding of the Trial Court, no full compliance with the requirements of section 240(3) of the Government of India Act 1935.
The Court also held that the Order of Reversion amounted to a penalty imposed upon the plaintiff as a result of the enquiry.
The Court, therefore, cam 890 to the conclusion that the Order aforesaid passed by the Government reverting him to the substantive rank was void and granted him that declaration, but dismissed his suit, with costs, in respect of the arrears Claimed by him as aforesaid on the ground that it was based on tort and not on contract.
There was an appeal by the plaintiff in respect of the dismissal of his claim for arrears, and cross objections by the State in respect of that part of the judgment and decree which had granted declaration in favour of the plaintiff.
The High Court dismissed the appeal by the plaintiff and allowed the cross objections of the de fendant respondent in respect of the declaration, but made no orders as to the costs of the appeal and the cross objections.
The High Court held that the Order of Reversion, even assuming that it was a punishment as a result of the departmental enquiry against the appellant, was not a punishment within the meaning of section 240(3) of the Government of India Act, 1935.
It also held that the Order of Reversion was not a punishment at all.
In this Court, the appellant, who has argued his own case with ability, has urged in the first place, and in our opinion rightly, that his case is covered by the observations of this Court in Parshotam Lal Dhingra vs Union of Indid (1).
Those observations are as follows: "A reduction in rank likewise may be by way of punishment or it may be an innocuous thing.
If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank.
If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.
But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower (1) , 863 64.
891 post or rank cannot in any circumstances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.
Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty.
The use of the expression "termi nate" or "discharge" is not conclusive.
Tn spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant bad a right to the post or the rank or (2) whether he ha,,; been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of rules and article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the consti tutional right of the servant.
" He has rightly pointed out that he would have continued as a Deputy Collector but for the Order of the Government, dated August 11, 1948, impugned in this case, as a result of the enquiry held against him, and that his reversion was not as a matter of course or for administrative convenience.
The Order, in terms, held him back for three years.
Thus his emoluments, present as well as future, were adversely affected by the 892 Order aforesaid of the Government.
In the ordinary course, he would have continued as a Deputy Collector with all the emoluments of the post and would have been entitled to further promotion but for the setback in his service as a result of the adverse finding against him, which finding was ultimately declared by the Account ant General to have been under a misapprehension of the true facts.
It is true that he was promoted as a result of the Government Order dated March 26, 1951, with effect from August 1, 1950.
B ' that promotion did not entirely cover the ground lost by him as a result of the Government Order impugned in this case.
It is noteworthy that the Judgment of the High Court under appeal was given in July, 1956, when the decision of this Court in Dhingra 's case (1) had not been given.
The decision of this Court was given in November, 1957.
Of the two tests laid down by this Court, certainly the second test applies, if not also the first one.
He may or may not have a right to hold the post or the rank, but there is no doubt that he was visited with evil consequences.
Ordinarily, if a public servant has been officiating in a higher rank it cannot be said that he has a substantive right to that higher rank.
He may have to revert to his substantive rank as a result of the exigencies of the service or he may be reverted as a result of an adverse finding in an enquiry against him for misconduct.
In every case of reversion from an officiating higher post to his substantive post, the civil servant concerned is deprived of the emoluments of the higher post.
But that cannot, by itself, be a ground for holding that the second test in Dhingra 's case (1), namely, whether he has been visited with evil consequences, can be said to have been satisfied.
Hence, mere deprivation of higher emoluments as a consequence of a reversion cannot amount to the "evil consequences" referred to in the second test in Dhingra 's case (1); they must mean something more than mere deprivation of higher emoluments.
That being so, they include, for example, forfeiture of substantive pay, loss of seniority, etc.
Applying that (1) [1058] S.C.P. 326, 863 64. 893 test to the present case, it cannot be said that simply because the appellant did not get a Deputy Collector 's salary for three years, he was visited with evil conse quences of the type contemplated in Dhingra 's case (1).
Even if he had been reverted in the ordinary course of the exigencies of the service, the same consequences would have ensued.
If the logs of the emoluments attaching to the higher rank in which he was officiating was the only consequence of his reversion as a result of the enquiry against him, the appellant would ' have no cause of action.
But it is clear that as a result of the Order dated August 11, 1948 (exhibit 35), the appellant lost his seniority as a Mamlatdar, which was his substantive post: That being so, it was not a simple case of reversion with no evil consequences; it had such consequences as would come within the test of punishment as laid down in Dhingra 's case.
If the reversion had not been for a period of three years, it could not be said that the appellant had been punished within the meaning of the rule laid down in Dhingra 's case, (1).
It cannot be asserted that his reversion to a substantive post for a period of three years was not by way of punishment.
From the facts of this case it is clear that the appellant was on the upward move in the cadre of his service and but for this aberration in his progress to a higher post, he would have, in ordinary course, been promoted as he actually was sometime later when the authorities realised perhaps that he had not been justly treated, as is clear from the Order of the Government, dated March 26, 1951, promoting him to the higher rank with effect from August 1, 1950.
But that belated justice meted out to him by the Government did not completely undo the mischief of the Order of Reversion impugned in this case.
It is clear to us, therefore, that as a result of the Order of Reversion aforesaid, the appellant had been punished and that the Order of the Government punishing him was not wholly regular.
It has been found that the requirements of section 240(3) of the Government of India Act, 1935, corresponding to article 311 (2) of the Constitution, had not been fully complied with.
His (1) ,863 64. 894 reversion in rank, therefore, was in violation of the Constitutional guarantee.
In view of these considerations it must be held that the High Court was not right in holding against the appellant that his reversion was not a punishment contemplated by section 240(3) of the Government of India Act, 1935.
On this part of the case, in our opinion, the decision of the High part has to be reversed and that of the Trial Court hat his reversion to his substantive rank was void, must be restored.
The question then arises whether he is entitled to any relief in respect of his claim for arrears of salary and dearness allowance.
He has claimed Rs. 10,777 odd as arrears of pay, Rs. 951 odd as arrears of dearness allowance, as also Rs. 688 odd as arrears of daily allowance plus interest of Rs. 471 odd, thus aggregating to the sum of Rs. 12,886 odd.
This claim is spread over the period August, 1946, to November, 1953, that is to say, until the date of his retirement from Government service, plus future interest also.
On this part of the case the learned Trial Judge, relying upon the case of the High Commissioner for India and Pakistan vs I. M. Lall (1) held that a government servant has no right to recover arrears of pay by an action in a Civil Court.
He got over the decision of this Court in the State of Bihar vs Abdul Majid (2) on the ground that that case has made a distinction between a claim based on a contract and that on a tort.
In the instant case, he came to the conclusion that as the plaintiff had claimed the difference between the pay and allowance actually drawn and those to which he would have been entitled but for the wrongful orders, the claim was based on tort and, therefore, the plaintiff was not entitled to any relief.
On the question of limitation, he held that the suit would be governed by article 102 of the Indian Limitation Act (IX of 1908) as laid down by the Federal Court in the case of The Punjab Province vs Pandit Tarachand (3).
In that view of the matter, the learned Judge held that adding the period of two months of the statutory notice under section 80 of the Code of Civil Procedure given to (1) (1948) L.R. 75 I.A. 225.
(2) ; (3) 895 Government, the claim would be in time from June 2, 1951.
Hence the Trial Court, while giving the declaration that the Order impugned was void, dismissed, the rest of the claim with a direction that the plaintiff was to pay 3/4ths of the costs of the suit to the defendant.
The High Court dismissed the suit in its entirety after allowing the cross objections of the State.
The appellant contended that his suit for arrears of salary would not be governed by the three years rule laid down in article 102 of the Limitation Act and that the decision of the Federal Court in Tarachand 's case (1) was not correct.
The sole ground on which this contention was based was that "salary" was not included within the term "wages".
In our opinion, no good reasons have been adduced before us for not following the aforesaid decision of the Federal Court.
In the result, the appeal is allowed in part, that is to say, the declaration granted by the Trial Court that the Order of the Government impugned in this case is void, is restored, in disagreement with the decision of the High Court.
The claim as regards arrears of salary and allowance is allowed in part only from the 2nd of June, 1951, until the date of the plaintiff 's retirement from Government service.
There will be no decree for interest before the date of the suit, but the decretal sum shall bear interest at 6% per annum from the date of the suit until realisation.
The plaintiff appellant will be entitled to three fourths of his costs throughout, in view of the fact that his entire claim is not being allowed.
Appeal allowed in part.
[/INST]When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of 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.
It would not detract from the value to be attached to a trial judge 's finding of fact if the judge does not express ly base his conclusion upon the impressions he gathers from the demeanour of witnesses.
The rule is, however, only a rule of practice and does not mean that the court of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.
[Where the High Court reversed a finding of fact arrived at by the trial court depending on oral evidence on the ground that the rule that the appellate court should be s1ow to differ from the conclusions arrived at by the trial judge who had seen and heard the witnesses did not apply to the case as the trial judge did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him, but upon the inherent improbability of the circumstances deposed to ,the Supreme Court held that the high court 's approach to the case was not proper and, after weighing the whole evidence in case reversed the finding of the High Court.] W.C. Macdonald vs Fred Latimer (A.I.R. 1929 P.C.15 at p. 18), Watts vs Thomas ([1947] A.C. 484 at p. 486), Sarave eraswami vs Talluri (A.I.R. 1949 P. C. 39.), Nether landsche Handel Maatschappij vs
R.M.P. Chettiar Firm and Others (A.I.R. ,205), referred
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<s>[INST] Summarize the judgementAppeal No. 1057 of 1965.
Appeal by special leave from the judgment and order dated November 21, 1963 of the Gujarat High Court in Special Civil Application No. 560 of 1961.
N.S. Bindra, S.K. Dholakia and S.P. Nayar, for the appellant.
Somnath R. Upadhya and Bhuvanesh Kumari, for the respondent No. 1. 616 The Judgment of the Court was 'delivered by Hegde, J.
This is an appeal by special leave.
Herein we have to determine the true scope of section 14(1) of the Bombay Merged Territories and Areas (Jagir Abolition) (Bombay Act No. XXXIX of 1954).
That question arises thus: Respondent No. 1 was the Bhayyat of the Jagir of Ghantoil.
That Jagir was situated in the Idar State, a former Indian State.
The area comprised in that State is a part of the State of Gujarat at present.
The said Jagir was a proprietary Jagir and for the purpose of succession and inheritance, it was governed by the rule of primogeniture.
The eldest son succeeded to the Gaddi: the other junior members of the family were granted maintenance known as Jiwarak, out of the Jagir estate.
The former Thakore of Ghantoil, Shri Dalpatsinhji Kumansingh granted as Jiwarak to the father of the present respondent, a half share in a village by means of a deed dated Feb. 18, 1916.
In 1928 dispute arose between the Thakore and the Bhayyats in the matter of aforesaid Jiwarak.
Hence the first respondent and his brother filed a suit in the Sadar Court of the then Idar State claiming Jiwarak.
The Court of first ' instance decreed the suit in favour of the first respondent and his brothers.
The Thakore went in appeal against the said judgment.
When the appeal was pending, the dispute was compromised and a consent decree was passed on September 23, 1940.
Under the consent decree the following rights were given to the first respondent and his brothers as Jiwarak.
(1) Rights to recover assessment (Vighoti) of Survey Nos.
382 387, 396, 398, 399, 542, 543, 544, 545 and 546 assessed at Rs. 175/ .
(2) Right to own and possess Gharkhed Lands consisting of Survey Nos. 219, 220, 225, 227, 228 and 229 assessed at Rs. 74/8/ free from payment of assessment; and ( 3 ) Right to receive a cash allowance of Rs. 234/12/annually from the Jagir.
The Act came into force on August 1, 1954 as a result of which all Jagirs in the merged territories of Bombay including the Jagir of Ghantoil were abolished.
Thereafter respondent No. 1 claimed compensation under section 14(1) of the Act.
He applied to the Jagir Abolition Officer for fixing the compensation due to him in respect of his aforementioned rights.
That officer rejected his claim but when the matter was taken up in appeal to the Gujarat Revenue Tribunal, 'the Tribunal granted him compensation in respect of his rights to recover assessment of Rs. 175/annually but it rejected his claim for compensation under the remaining two heads.
The first respondent then took up the matter to the Gujarat High Court under article 227 of the Constitu 617 tion in Special Civil Application No. 560 of 1961.
The High Court allowed that application.
It held that the first respondent is entitled to compensation in accordance with the provisions of the Act both in respect of Gharkhed lands as well as in respect of his right to receive cash allowance of Rs. 234/12/ annually.
The Jagir Abolition Officer was directed to hold further inquiry for determining a compensation payable to the first respondent in respect of those rights.
This appeal is directed against the said order of the High Court.
The long title of the Act shows that it is an Act to abolish Jagirs in the merged territories and merged areas in the State of Bombay.
Its preamble reads: "Whereas it is expedient in the public interest to abolish jagirs of various kinds in the merged ' territories and merged areas in the State of Bombay and to provide for matters consequential and incidental thereto; It is hereby enacted as follows . . " Section 2 defines the various expressions including Gharkhed land, Jagir, Jiwai Jagir, used in the Act.
Jagirs are abolished under section 3.
That Section reads: "Notwithstanding anything contained in any usage, grant, sanad, order, agreement or any law for the time being in force, on and from the appointed date, (i) all jagirs shall be deemed to have been abolished; (ii) save as expressly provided by or under the provisions of this Act, the right of a jagirdar to recover rent or assessment of land or to levy or recover any kind of tax, cess, fee, charge of any hak and the right of reversion or lapse, if any, vested in a jagirdar, and all other rights of a jagirdar or of any person legally subsisting on the said date, in ' respect of a jagir village as incidents of jagir shall be deemed 'to have been extinguished." Section 4 provides that all Jagir villages shall be liable to pay land revenue in accordance with the provisions of the Code and the rules relating to unalienated lands shall apply to these villages.
In this case we are not concerned with the compensation payable to the Jagirdar.
We are dealing with the case of a person coming under section 14(1) of the Act.
That section prescribes the method of awarding compensation to persons other than Jagirdars who are aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of their rights to, or interest in property.
The section reads thus: 618 "Section 14 ( 1 ).
If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to, or interest in property and if compensation for such abolition, extinguishment or modification has not been provided for in the provisions of this Act, such person may apply to the Collector for compensation.
" The real question for decision is whether the right to own and possess Gharkhed land and the right to receive cash allowance annually from the Jagir are rights to property or at any rate interest in property.
Before a person can claim compensation under section 14(1) he has to establish (1) that he is not the Jagirdar of the concerned Jagir (2) he is aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of his rights to, or interest in property as a result of the abolition of the Jagir and (3 ) compensation for such abolishing, extinguishment, modification has not been provided in the provisions of this Act.
It is admitted that the petitioner was not a Jagirdar.
It is also admitted that he is aggrieved by the provisions of this Act.
It was not said that for abolition of any of the privileges enjoyed by him any compensation had been provided ' under the provisions of the Act.
The only point in controversy is whether the claim put forward by him can be considered as right to, or interest in property.
We shall first take up the Gharkhed lands.
Admittedly the first respondent was enjoying those lands without any liability to pay assessment.
That was a right conferred on him under the compromise decree.
No material was placed before us to show that the Jagirdar was competent in spite of the compromise decree to collect assessment from him in respect of those lands.
This was not a case of suspension of land revenue.
The first respondent 's right was to enjoy the land free of the liability to pay the land revenue.
That was the position on 'the date the Act came into force.
So far as the Thakore was concerned the right to collect the assessment of those lands had been given as Jagir to the Jagirdar.
We see no merit in the contention of Mr. N.S. Bindra, the learned Counsel for the appellant that the Sovereign had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a concession and not a right.
That question is wholly irrelevant for our present purpose.
In this case we are not called upon to consider the nature of the power of the Sovereign to levy assessment.
The only question for our decision is that whether by abolishing the Jagir and by levying assessment on the Gharkhed lands any of the respondent 's right to or interest in property were abolished, extinguished or modified.
We are considering the plaintiff respondent 's 919 right to or interest in property as it stood before the Act and not after section 5 of the Act came into force.
There is no denying the fact that right to enjoy a property without the liability to assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment.
Before the Act, the first respondent was enjoying Gharkhed land without the liability to pay assessment but after the Act came into force he enjoying those very.
lands with the liability to pay assessment.
Therefore there is hardly any doubt that his interest in that property stands modified.
In this case it is not necessary to consider whether that interest can be considered as a right in the property.
We are also in agreement with the High Court that the right to receive cash allowance of Rs. 234/12/ annually from the Jagir is one of those rights that have got to be compensated under section 14(1).
That liability was not the personal liability of the Jagirdar.
The first respondent was entitled to get that amount from the Jagir.
In other words it was a charge on the Jagir.
Therefore it is an interest in property.
We are unable to agree with Mr. Bindra that the decision of this Court in Civil Appeals Nos.
517 534 of 1965 (The State of Gujarat etc.
V. Vakhatsinghji Sursinghji Vaghela)(1) to which two of the members of this Bench were parties is of any assistance to the appellant.
Therein this Court was called upon to consider the scope of section 14(1) of the Bombay Taluqdari Abolition Act, 1949.
The language of that provision is substantially different from the language of section 14( 1 ) of the Act.
Further therein this Court held that the concerned Taluqdar was not entitled to enjoy the lands with the liability of paying only 60% of the assessed assessment though for some years only 60% of the assessed assessment was collected as a matter of concession.
That was only a concession and not a right.
Mr. Bindra tried to extract one or two sentences from the decision of the Bombay High Court in Shapurji Jivanji V. The Collector of Bombay(2) and found an argument on the basis of those sentences to the effect that the right to collect assessment can never be given up.
Far from supporting that contention the decision actually proceeded on the basis that the said right can be given up either by contract or on the basis of legislation.
For the reasons mentioned above we see no merit in this appeal.
It is accordingly dismissed with costs.
V.P.S. Appeal dismissed.
[/INST]The appellant made a gift in 1951 of certain ordinary and preference shares in a company to.
his wife and on the date of transfer the value of the shares was Rs. 69,730.
After the company had converted the preference shares into ordinary shares the appellant 's wife sold most of the shares held by her for Pa. 1,54,800, resulting in a capital gain of Rs. 70,860 as computed under section 12B of the Income Tax Act.
She deposited the entire amount realised from the sale of shares with a firm and thereby earned an interest of Rs. 9,288 per year.
In the appellant 's assessment for 1957 58, the Income Tax Officer included the amount of Rs. 70,860 on the view that the gain resulting from the sale of the shares was the income of the appellant 's wife which arose directly or indirectly from assets transferred by him within the meaning of section 16 (3)(a)(iii) of the Income Tax Act, 1922.
Similarly, in the appellant 's assessment for the year 1958 59 ' and 19591 60, the interest amount of Rs. 9,288 was also included as income within the meaning of section 16 (3) (a) (iii).
In appeals made against the three assessment orders, while the Appellate Assistant Commissioner dismissed the appeal in respect of the assessment year 1957 58 be partly allowed the other two appeals taking the view that only that part of the interest which was attributable to the monetary value of the shares at the time of the gift was liable to be included in the appellant 's total income under section 16 (3)(a)(iii); since the monetary value of the shares gifted to the wife at the time when the gift was made was.
only Rs. 69,730.
the interest attributable to it worked, out at Rs. 4,138 and only this amount could be included in the appellant 's income.
The Appellate.
Tribunal dismissed the appellant 's further appeal and also allowed cross appeals filed by the Department.
The High Court.
upon a reference.
held that the sum of Rs. 70,860 was properly included in the appellant 's income, in 1957 58 but that the interest amount in excess of Rs. 4.138 was not liable to be included in his income for 1958 59 and 1959 60.
In the appeal to this Court the only question for consideration was whether the amount of Rs. 70.860 was the appellant 's income under section 16 (3)(a)(iii).
It was contended on his behalf (i) that what comes within the ambit of section 16(3.)(a)(iii) is the income from the transferred assets.which is different from the profits or gains arising from the sale of the transferred assets.
or in other words "the capital gains" from the transferred assets; and (ii) that section 16(3)(a)(iii) was enacted in 1937 when the word 'income ' did not include 'capital gains ' and income from the property was understood to be income falling under that head in section 6 of Act.
HELD: The High Court had rightly decided that the amount.
of Rs. 70,860 was properly included in the assessees income under section 16 (3) (a) (iii).
361 (i) There is no logical distinction between income arising from the asset transferred to the wife and arising from the sale of the assets so transferred.
The profits or gains which arise from the sale of the asset would arise or spring from the asset, although the operation by which the profits or gain is made to arise out of the asset is the operation of sale.
[364 G H] (ii) Although at the time when section 16(3)(a)(iii) was enacted the definition of 'income ' did not include 'capital gains ', capital gains having been brought within the meaning of 'income ' in section 2(6C), the expression 'income ' as used in section 16(3)(a)(iii) must be construed according to the amended definition of the word and would, therefore, include capital gains.
There is nothing in the context or language of section 16(3)(a)(iii) of the Act to suggest that capital gains are excluded from its scope and there is no reason why a restricted interpretation should be given to the provisions of section 16(3) (a) (iii).
[365 C E]
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<s>[INST] Summarize the judgementCivil Appeal No. 378 of 1992.
From the Judgment dated 31.7.1991 of the Karnataka High Court in Writ Appeal No. 1224 of 1990.
Santosh N. Hegde and P.Mahale for the Appellants.
A.K. Subbiah, Ranji Thomas, K.V. Mohan, M Veerappa and K.H. Nobin Singh for the Respondents.
290 The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
This appeal is directed against the judgment of the High Court of Karnataka dated 31 st July, 1991, whereby the Division Bench allowed the Writ Appeal setting aside the decision of the learned Single Judge and held, relying on the judgment in Writ Appeal No. 2564 of 1987 decided on 28th May, 1991, that Section 4 (2) of the Karnataka Zila Parishads, Taluk, Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as `the Act ') does not confer any power in the Deputy Commissioner to change the headquarter of any Mandal.
It is this view taken by the Division Bench of the High Court that is put in issue in the present appeal.
For the purpose of disposal of this appeal we may notice a few relevant facts.
The Act came into force w.e.f. 14 'th August, 1984.
Thereafter, on 16th January, 1986 a notification was issued by the Deputy Commissioner in exercise of power conferred by Section 4 (1) of the Act constituting a Mandal, named Mudiyannur Mandal, and located its headquarter at Mudiyannur.
However, the Divisional Commissioner changed the headquarter to Uthanpur while exercising power under Section 4 (3) of the Act.
Thereupon a writ petition was filed on 14th December, 1987, being Writ Petition No. 7685/86, challenging the said decision of the Divisional Commissioner.
That Writ petition was dismissed by the High Court observing: if the Mandal so desires it may pass a resolution to change the headquarter from the existing place to another place whereupon it will be open to the Deputy Commissioner to consider if he would like to exercise power under Section 4 (2) of the Act.
Pursuant thereto a fresh resolution was passed whereupon the Deputy Commissioner issued a notification under Section 4 (2) of the Act for change of headquarter which was published in the Government Gazette of 20th January, 1988.
On the issuance of the said draft notification respondents Nos. 1 to 10 filed a writ petition, being Writ Petition No. 1888/88, challenging the said draft notification.
That writ petition was also dismissed by the High Court.
The Deputy Commissioner after considering the resolution of the Mandal and the objections received in response to the draft notification from respondents Nos 1 to 10 passed an order declaring Mudiyannur as the headquarter of the Mandal.
To give effect to his decision, a notification under Section 4 (2) of the Act was issued on 23rd July, 1988 whereby the headquarter was changed from Uthanpur to Mudiyannur.
Once again the respondent Nos 1 to 10 challenged that notification by a revision application filed under Section 4 (3) 291 of the Act.
The Divisional Commissioner exercising power under the said provision dismissed the revision application whereupon a Writ Petition no 77 of 1989 was taken to the High Court.
A learned Single Judge of the High Court dismissed the writ petition.
An appeal was carried to the Division Bench of the High Court.
the Division Bench allowed the appeal by the impugned judgment dated 31 st July, 1991 following an earlier decision in Writ Appeal No. 2564 of 1987 rendered on 28th May, 1991.
It is the correctness of this decision which we are called upon to examine.
Section 4 (1) as it stood before its amendment on 4th October, 1985 empowered the Deputy Commissioner to declare any area comprising a village or group of village having the required population to be a Mandal for the purposes of the Act.
That sub section did not carry a provision empowering the Deputy Commissioner to specify the headquarter of the Mandal.
By the amendment brought about in that provision by Act 3 of 1986 w.e.f. 4th October, 1985, this power was specifically conferred on the Deputy Commissioner.
The amended Section 4 (1) reads as under : "(1) Subject to the general or special orders of the Government, the Deputy Commissioner, if in his opinion, it is expedient to declare any area comprising a village or group of village having a population of not less than eight thousand and not more than twelve thousand to be a Mandal, may, after previous publication, declare such area as a Mandal for the purposes of this Act and also specify its headquarter.
" On a plain reading of this provision, it becomes obvious that the Deputy Commissioner was empowered not only to declare a village or group of villages as a Mandal but also to specify its headquarter.
We then come to sub section (2) which empowers the Deputy Commissioner, at the request of the Mandal concerned, or otherwise, to increase or decrease the area of any Mandal, by including within or excluding from such Mandal any village or group of villages or alter the name of any Mandal or declare that any area shall cease to be a Mandal after previous publication of the proposal by a notification in the Gazette.
This sub section confers power on the Deputy Commissioner to increase or diminish the area of any Mandal and to alter the name of any such Mandal but it does not in so many words confer power to specify the headquarter of such reconstituted Mandal.
Sub section (3) of section 4 empowers the Commissioner either on an application made within thirty days from the date of the notification by an aggrieved party or in exercise of suo moto power after giving a reasonable opportunity of being heard to the applicant or the Mandals 292 concerned, revise the orders of the Deputy Commissioner passed under sub section (1) or sub section (2), as the case may be, and may also, if he considers necessary, modify it as provided in the third proviso to subsection (1) Every order so passed revising or modifying the order of the Deputy Commissioner shall be published in the Official Gazette.
We are not concerned with the third proviso to sub section 4.
Sub section (1) of Section 4, therefore, empowers the Deputy Commissioner to declare any village or group of villages as a Mandal and to specify its headquarter.
After the constitution of the Mandal and on the headquarter being specified under this sub section, if any change, is to be effected in the area of the Mandal either by increasing or reducing its size, the power has to be exercised under sub section (2) of Section 4 of the Act.
That sub section also empowers the Deputy Commissioner to alter the name of the Mandal.
It was submitted by the counsels for the respondents that while this sub section in terms empowers the Deputy Commissioner to alter the name of the Mandal, it does not empower him to alter the headquarter of the Mandal because the headquarter once specified under sub section (1) of Section 4 must remain unaltered since the Act designedly does not confer any power on any authority whatsoever to change the headquarter once specified under sub section (1) of Section 4.
This submission was countered by the learned counsel for the appellant by inviting our attention to Section 14 of the Karnataka (hereinafter called `the '.
that provision reads as under: "Where by any Mysore or Karnataka Act made after the commencement of this Act, any power is conferred then that power may be exercised from time to time as occasion requires.
" Counsel for the appellant submitted that once the power to specify the headquarter is conferred on the Deputy Commissioner by sub section (1) of Section 4 of the Act it can be exercised from time to time by virtue of the said Section 14 if the occasion so requires.
He, therefore submitted that this Court should construe the scheme of Section 4 of the Act with the aid of Section 14 in such a manner as not to leave a vacuum for the exercise of power if need arises for a change of headquarter.
He submitted that if, the view taken by the High Court is approved, a situation may arise when even after a change takes place in the size of the Mandal area there would be no power vested in any authority whatsoever for changing of specifying the headquarter of the reconstituted Mandal which vacuum may lead to avoidable complications.
He, therefore, submitted that once the legislature has invested the Deputy Commissioner with the power to 293 specify the headquarter under sub section (1) of Section 4, subject to the modification which the Commissioner may choose to make under sub section (3) of Section 4, the power to alter the headquarter of a Mandal from time to time if the occasion so requires must be read into it.
We think there is a considerable force in this submission.
As pointed out earlier, Section 4(1) empowers the Deputy Commissioner to do two things, namely, (i) to declare an area as a Mandal, and (ii) to specify its headquarter.
The word `also ' preceding the words `specify its headquarter ' cannot be understood to convey that the power once exercised would stand exhausted.
Such a construction sought to be placed by counsel for the respondent does not accord with the language of the provision.
It merely conveys that when the Deputy Commissioner constitutes a Mandal for the first time it will be necessary for him to specify its headquarter also.
This power to specify the headquarter conferred on the Deputy Commissioner can be exercised from time to time as occasion requires by virtue of Section 14 of the .
The attention of the High Court was not drawn to the provision in Section 14 when it disposed of the Writ Appeal No. 2564 of 1987 and Writ Petition No 375 of 1989 on 28 th May, 1991.
It is true that the power conferred by sub section (2) of Section 4 can be exercised where there is a change in the area of the Mandal either by addition or reduction in the area.
Under clause (c) of sub section (2) of Section 4 the Deputy Commissioner is also invested with the power to alter the name of any Mandal.
The scheme of subsection (2) would, therefore, show that when there is any increase or decrease in the area of any Mandal, the Deputy Commissioner may, after the previous publication of the proposal by notification, exercise that power and rename the Mandal, if so required.
The absence of the power in sub section (2) of section 4 to specify the headquarter afresh does not necessarily mean that once the initial constitution of the Mandal takes place and the headquarter is specified the power is exhausted, notwithstanding section 14 of the .
If such an interpretation is placed on the scheme of section 4 of the Act neither the Deputy Commissioner nor any other authority will thereafter be able to alter and specify any other place as the Mandal 's headquarter.
Such a view would create a vacuum and even when a genuine need for specifying any other headquarter arises, the authorities will not be able to exercise power for want of a specific provision in the Act and that may lead to avoidable hardship and complications.
It is, therefore, essential that we read the provision of the Act in a manner so as to ensure that such a vacuum does not arise and the power is retained in the concerned authority which can be exercised should a genuine need arise.
In J.R. Raghupathy & Ors.
vs State of A.P. others; , this Court observed that the ultimate decision as 294 to the place or location of Mandal headquarter is left to the Government to decide and conferment of discretion upon the concerned authority in that behalf must necessarily leave the choice to the discretion of the said authority and it would not be proper for the courts to interfere with the discretion so exercised.
This is not to say that the discretion can be exercised in an arbitrary or whimsical manner without proper application of mind or for ulterior or malafide purpose.
If it is shown that the discretion was so exercised it would certainly be open to the Courts to interfere with the discretion but not otherwise.
We are, therefore, of the opinion that if the situation so demands and there is justification for altering the place of headquarter, it would be open to the Deputy Commissioner to exercise power under Section 4(1) of the Act read with section 14 of the to meet the situation.
We, therefore, allow this appeal, set aside the impugned order of the Division Bench of the High court and restore the order of the learned Single Judge directing that the writ petition, which gave rise to the writ appeal, shall stand dismissed.
However, in the facts and circumstances of the case there will be no order as to costs.
V.P.R. Appeal allowed.
[/INST]The appellant, (first accused), a former Inspector of Industries, alongwith an Inspector of Industries, (second accused), was prosecuted under section 120 B read with section 420 IPC, sections 5(1) (b) and 5(2) of the Prevention of Corruption Act, 1947 on the ground that both the accused entered into a criminal conspiracy and acting in concert, the first accused obtained the Small Scale Industries Registration Certificate for additional lines of manufacture, Essentiality Certificate and Import Licences on false representations while the second accused enabled him to obtain the same by his false recommendations.
The Trial Court acquitted both of them on all the charges.
The State filed an appeal before the High Court which on re appreciation of evidence held that the prosecution has established conspiracy beyond doubt and that only one conclusion was possible on the evidence that the accused are guilty of all the charges.
Accordingly it set aside the acquittal and convicted both the accused on all the counts and sentenced the appellant to imprisonment for two years under section 120 B, and for two years under section 420 IPC.
In appeal to this Court it was contended on behalf of the 250 appellant accused that: (i) the High Court erred in reversing the judgment of acquittal passed by the High Court; and (ii) the benefit of probation under section 360 of the Code of Criminal Procedure should be extended to the appellant.
Disposing the appeal, this Court, HELD: The High Court was right in coming to the conclusion that the guilt against the appellant was established beyond doubt.
Accordingly, the conviction and the sentence awarded by the High Court is upheld.
[251 G 253 B] The occurrence relates to the period between February, 1967 and February, 1969.
The Trial Court acquitted the appellant while High Court reversed the acquittal and convicted them.
This Court granted bail to the appellant in 1980.
Since then the appellant has several achievements to his credit in the industrial field.
Therefore, this is a fit case where benefit of probation under section 360 of the Code of Criminal Procedure, 1973 should be extended to the appellant.
[253 C E]
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<s>[INST] Summarize the judgementtition Nos. 232 & 233 of 1983.
(Under article 32 of the Constitution of India) M.S. Joshi, N.D. Garg and Rajiv Kumar Garg for the Petitioners.
D.D. Sharma for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, CJ.
An important question arises for consideration in these two writ petitions.
That question is whether a delay exceeding two years in the execution of a sentence of death must be considered sufficient for setting aside that sentence.
Learned counsel who appears on behalf of the petitioners relies upon a decision of this Court in T.V. Vatheeswaran vs The State of Tamil Nadu(1) and contends that since more than two years have passed since the petitioners were sentenced to death by the Trial Court, they are entitled to demand that the said sentence should be quashed and substituted by the sentence of life imprisonment.
The petitioners, Sher Singh and Surjit Singh, and one Kuldip Singh were convicted under section 302 read with section 34 of the 586 Penal Code and were sentenced to death by the learned Sessions Judge, Sangrur, on November 26, 1977.
By a judgment dated July 18, 1978 the High Court of Punjab and Haryana reduced the sentence imposed upon Kuldip Singh to life imprisonment but upheld the sentence of death imposed upon the petitioners.
The High Court also imposed a sentence of fine of Rs. 5000 on Kuldip Singh and a fine of Rs. 5000 on each of the petitioners.
Special Leave Petition (Crl.) No. 1711 of 1978 which was filed by the petitioners against the judgment of the High Court was dismissed by this Court on March 5, 1979.
The petitioners then filed a Writ Petition in this Court challenging the validity of section 302 of the Penal Code.
That petition was dismissed on January 20, 1981.
Review Petition No. 99 of 1981 filed by the petitioners against the dismissal of their S.L.P. was dismissed by this Court on March 27, 1981.
The petitioners filed yet another petition under article 32 of the Constitution, this time challenging the validity of section 34 of the Penal Code.
That petition was dismissed on August 24, 1981.
After failing in these seemingly inexhaustible series of proceedings, the petitioners filed these two writ petitions on March 2, 1983, basing themselves on the decision rendered by Justice Chinnappa Reddy and Justice R.B. Misra on February 16, 1983 in Vatheeswaran.
The question which arose for consideration in Vatheeswaran is formulated by Chinnappa Reddy, J., who spoke for the Court, in these terms: "But the question is whether in a case where after the sentence of death is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, is it not open to a court of appeal or a court exercising writ jurisdiction, in an appropriate proceeding to take note of the circumstance when it is brought to its notice and give relief where necessary ?" This question arose on the following facts as stated in the judgment of Brother Chinnappa Reddy: (1) The prisoner was rightly sentenced to death.
(2) He was the 'arch villain of a villainous piece ' and the brain behind a cruel conspiracy to impersonate Customs officers, pretend to question unsuspecting visi 587 tors to the city of Madras, abduct them on the pretext of interrogating them, administer sleeping pills to the unsuspecting victims, steal their cash and jewels and finally murder them.
The plan was ingeniously fiendish and the appellant was its architect.
(3) Since January 19, 1975 when the Sessions Judge pronounced the sentence of death, the prisoner was kept in solitary confinement contrary to the decision of this Court in Sunil Batra vs Delhi Administration.
(1) Before that, he was a 'prisoner under remand ' for two years.
On these facts, the argument advanced in this Court on behalf of the prisoner was that taking away his life after keeping him in jail for ten years, eight of which were spent in illegal solitary confinement, is a gross violation of the fundamental rights guaranteed by Article 21 of the Constitution.
In Vatheeswaran, our learned Brethren have drawn sustenance to their conclusion from one judgment of the Federal Court of India, five judgments of this Court, one of the Privy Council and one of the U.S. Supreme Court.
As to the meaning and implications of Article 21 of the Constitution, they have relied upon the decisions of this Court in Sunil Batra,(1) Maneka Gandhi,(2) Bachan Singh, (3) Hussainara Khatoon (4) and Hoskot.(5) The judgment in Bhuvan Mohan Patnaik (6) and Prabhakar Pandurang Sangzgiri (7) have been relied upon to show that prisoners who are under a sentence of death and detenus are entitled to certain fundamental rights.
In Piare Dusadh, (8) the Federal Court was considering appeals against the judgments of the High Courts of Allahabad, Madras, Nagpur and Patna, under the special Criminal Courts Ordinance II of 1942.
In Case Nos.
XLI and XLII, the High Court of Patna had 588 confirmed the sentence of death passed on the appellants by the Special Judge.
It was urged before the Federal Court that the death sentence imposed in those cases should be reduced to transportation for life on account of the time that had elapsed since the sentences were first pronounced.
The Court observed: "It is true that death sentences were imposed in these cases several months ago, that the appellants have been lying ever since under threat of execution, and that the long delay has been caused very largely by the time taken in proceedings over legal points in respect of the constitution of the courts before which they were tried and of the validity of the sentences themselves.
We do not doubt that this court has power, where there has been inordinate delay in executing death sentence in cases which come before it, to allow the appeal in so far as the death sentence is concerned and substitute a sentence of transportation for life on account of the time factor alone, however right the death sentence was at the time when it was originally imposed.
But this is a jurisdiction which very closely entrenches on the powers and duties of the executive in regard to sentences imposed by courts.
It is a jurisdiction which any court should be slow to exercise.
We do not propose ourselves to exercise it in these cases.
Except in Case No. XLVII (in which we are commuting the sentence largely for other reasons as hereafter appears), the circumstances of the crimes were such that if the death sentence which was the only sentence that could have been properly imposed originally, is to be commuted, we feel that it is for the executive to do so.
" It was urged before the Federal Court that in England, when cases in which death sentence has been imposed are allowed to be taken to the House of Lords on account of some important legal point, the consequential delay in finally disposing of the case was treated as a ground for the commutation of the death sentence and that a similar course might well be adopted in India in cases in which substantial questions of law as to the interpretation of the Constitution Act had to be considered by the Federal Court.
This argument was rejected on the ground that these were matters primarily for the consideration of the executive.
589 In Case No. XLVII, which was one of the cases before the Federal Court, the appellant was convicted by a special Judge of the offence of murder and was sentenced to death on September 30, 1942.
The Allahabad High Court confirmed the sentence of death but the Federal Court commuted that sentence to transportation of life.
As is evident from the parenthetical portion of the passage extracted above, this was done "largely for other reasons", that is to say, for reasons other than that a long delay had intervened after the death sentence was imposed.
The Federal Court commuted the death sentence on the ground that the sentence of transportation for life was more appropriate in the circumstances of the case.
They added that the appellant was awaiting the execution of his death sentence for over a year.
It is thus clear that Piare Dusadh is not an authority for the proposition that if a certain number of years have passed since the imposition of a death sentence, that sentence must necessarily be commuted to life imprisonment.
In Ediga Anamma(1) this Court was hearing an appeal against the sentence of death imposed upon the appellant.
Finding that the appellant was a young woman of 24 who was flogged out of her husband 's house by the father in law, this Court reduced her sentence to life imprisonment for a variety of factual reasons peculiar to the case, like her entanglement into a sex net, that she had a young boy to look after and so on.
Speaking for the Court, Krishna Iyer, J. added: "What may perhaps be an extrinsic factor but recognised by the Court as of humane significance in the sentencing context is the brooding horror of 'hanging ' which has been haunting the prisoner in her condemned cell for over two years.
The Sessions Judge pronounced the death penalty on December 31, 1971, and we are now in February 1974.
This prolonged agony has ameliorative impact according to the rulings of this Court." Piare Dusadh was regarded by the Court as a leading case on this point.
We have already adverted to the circumstances in which the death sentence was commuted to transportation for life in that case.
590 In the other cases referred to in Vatheeswaran, (supra) this Court was hearing appeals against the judgments of High Courts confirming the sentence of death.
In those cases, the sentence of death was commuted into life imprisonment by this Court by reason of the long interval which had elapsed either since the imposition of the death sentence or since the date of the occurrence.
But we must hasten to add that this Court has not taken the narrow view that the jurisdiction to interfere with a death sentence can be exercised only in an appeal against the judgment of conviction and sentence.
The question which arises in such appeals is whether the extreme penalty provided by law is called for in the circumstances of the case.
The question which arises in proceedings such as those before us is whether, even if the death sentence was the only appropriate sentence to impose in the case and was therefore imposed, it will be harsh and unjust to execute that sentence by reason of supervening events.
In very recent times, the sentence of death has been commuted to life imprisonment by this Court in quite a few cases for the reason, inter alia, that the prisoner was under the spectre of the sentence of death for an unduly long time after the final confirmation of that sentence, consequent upon the dismissal of the prisoner 's Special Leave Petition or Appeal by this Court.
Traditionally, subsequent events are taken into account in the area of civil law.
There is no reason why they should not receive due consideration in other jurisdictions, particularly when their relevance on the implementation or execution of judicial verdicts is undeniable.
Undoubtedly, principles analogous to Res judicata govern all judicial proceedings but when new situations emerge, particularly factual, after a verdict has assumed finality in the course of the hierarchical process, advertence to those situations is not barred on the ground that a final decision has been rendered already.
That final decision is not a decision on new facts.
Courts are never powerless to do justice, that is to say, to ensure that the processes of law do not result in undue misery, suffering or hardship.
That is why, even after the final seal of approval is placed upon a sentence of death, this Court has exercised its power to direct, ex debito justiciae, that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court.
Some of us dealing with this case have been parties to decisions directing, in appropriate cases, that the death sentence shall not be executed by reason of supervening circumstances.
591 In Vatheeswaran, the prisoner was under the sentence of death for over eight years and was in the jail for two years before that.
After the death sentence was pronounced upon him, he was kept in solitary confinement, contrary to this Court 's ruling in Sunil Batra.
These supervening considerations, inter alia, were unquestionably germane to the decision whether the death sentence should be allowed to be executed.
The Court took them into account and commuted the sentence to life imprisonment.
Like our learned Brethren, we too consider that the view expressed in this behalf by Lord Scarman and Lord Brightman in the Privy Council decision of Neol Riley (1) is, with respect, correct.
The majority in that case did not pronounce upon this matter.
The minority expressed the opinion that the jurisprudence of the civilized world has recognized and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading: Sentence of death is one thing; sentence of death followed by lengthy imprisonment prior to execution is another.
The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in circumstances of a given case.
Death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh.
This has to be accepted as the law of the land.
We do not, all of us, share the views of every one of us.
And that is natural because, every one of us has his own philosophy of law and life, moulded and conditioned by his own assessment of the performance and potentials of law and the garnered experiences of life.
But the decisions rendered by this Court after a full debate have to be accepted without mental reservations until they are set aside.
The fact that it is permissible to impose the death sentence in appropriate cases does not, however, lead to the conclusion that the sentence must be executed in every case in which it is upheld, regardless of the events which have happened since the imposition or the upholding of that sentence.
The inordinate delay in the execution of the sentence is one circumstance which has to be taken into account 592 while deciding whether the death sentence ought to be allowed to be executed in a given case.
In his sociological study called 'Condemned to Die, Life Under Sentence of Death ', Robert Johnson says: "Death row is barren and uninviting.
The death row inmate must contend with a segregated environment marked by immobility, reduced stimulation, and the prospect of harassment by staff.
There is also the risk that visits from loved ones will become increasingly rare, for the man who is "civilly dead" is often abandoned by the living.
The condemned prisoner 's ordeal is usually a lonely one and must be met largely through his own resources.
The uncertainties of his case pending appeals, unanswered bids for commutation, possible changes in the law may aggravate adjustment problems.
A continuing and pressing concern is whether one will join the substantial minority who obtain a reprieve or will be counted among the to be dead.
Uncertainty may make the dilemma of the death row inmate more complicated than simply choosing between maintaining hope or surrendering to despair.
The condemned can afford neither alternative, but must nurture both a desire to live and an acceptance of imminent death.
As revealed in the suffering of terminally ill patients, this is an extremely difficult task, one in which resources afforded by family or those within the institutional context may prove critical to the person 's adjustment.
The death row inmate must achieve equilibrium with few coping supports.
In the process, he must somehow maintain his dignity and integrity" (page 4) "Death row is a prison within a prison, physically and socially isolated from the prison community and the outside world.
Condemned prisoners live twenty three and one half hours alone in their cells. " (page 47) The author proceeds to say: "Some death row inmates, attuned to the bitter irony of their predicament, characterize their existence as a living death and themselves as the living dead.
They are speaking symbolically, of course, but their imagery is an appropriate description of the human experience in a world where life is so obviously ruled by death.
It takes 593 into account the condemned prisoners ' massive deprivation of personal autonomy and command over resources critical to psychological survival; tomblike setting, marked by indifference to basic human needs and desires; and their enforced isolation from the living, with the resulting emotional emptiness and death." (page 110) A prisoner who has experienced living death for years on end is therefore entitled to invoke the jurisdiction of this Court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed.
That is the true implication of Article 21 of the Constitution and to that extent, we express our broad and respectful agreement with our learned Brethren in their visualisation of the meaning of that article.
The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said.
So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation.
Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution.
The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable.
It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment.
(See Prabhakar Pandurang Sangzgiri, Bhuvan Mohan Patnaik and Sunil Batra).
It is a logical extension of the self same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair, Article 21 stands like a sentinel over human misery, degradation and oppression.
Its voice is the voice of justice and fairplay.
That voice can never be silenced on the ground that the time to heed to its imperatives is long since past in the story of a trial.
It reverberates through all stages the trial, the sentence, the incarceration and finally, the execution of the sentence.
In cases too numerous to mention, this Court has released undertrial prisoners who were held in jail for periods longer than the period to which they could be sentenced, if found guilty: this jurisdiction relates to pre trial procedure.
In Hussainara Khatoon (supra) and Champalal(1), speedy trial was held to be an integral part of the 594 right conferred by Article 21: this jurisdiction relates to procedure during the trial.
In Prabhakar Pandurang Sangzgiri, the Court upheld the right of a detenu, while in detention, to publish a book of scientific interest called 'Inside the Atom '; in Bhuvan Mohan Patnaik, it was held that prisoners had to be afforded reasonable human conveniences and that the live wire mechanism fixed on prison walls in pursuance of administrative instructions could not be justified as reasonable if it violated the fundamental rights of the prisoners; in Sunil Batra, solitary confinement and bar fetters were disapproved as normal modes of securing prisoners.
These three cases are illustrative of the Court 's jurisdiction to review prison regulations and to regulate the treatment of prisoners while in jail.
And, last but not the least, as we have stated already, death sentences have been commuted to life imprisonment by this Court either while disposing of Special Leave Petitions and Appeals or while dealing with Writ Petitions filed after the unsuccessful termination of the normal processes of litigation: this jurisdiction relates to the execution of the sentence.
This then is the vast sweep of Article 21.
What we have said above delineates the broad area of agreement between ourselves and our learned Brethren who decided Vatheeswaran.
We must now indicate with precision the narrow area wherein we feel constrained to differ from them and the reasons why.
Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.
But, according to us, no hard and fast rule can be laid down as our learned Brethren have done that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death".
This period of two years purports to have been fixed in Vatheeswaran after making "all reasonable allowance for the time necessary for appeal and consideration of reprieve".
With great respect, we find it impossible to agree with this part of the judgment.
One has only to turn to the statistics of the disposal of cases in High Court and the Supreme Court to appreciate that a period far exceeding two years is generally taken by those Courts together for the disposal of matters involving even the death sentence.
Very often, four or five years elapse between the imposition of death sentence by the Sessions Court and the disposal of the Special Leave Petition or an Appeal by the Supreme Court in that matter.
This is apart from the time which the President or the Governor, as the case may be, takes to consider petitions filed 595 under Article 72 or article 161 of the Constitution or the time which the Government takes to dispose of applications filed under sections 432 and 433 of the Code of Criminal Procedure.
It has been the sad experience of this Court that no priority whatsoever is given by the Government of India to the disposal of petitions filed to the President under Article 72 of the Constitution.
Frequent reminders are issued by this Court for an expeditious disposal of such petitions but even then the petitions remain undisposed of for a long time.
Seeing that the petition for reprieve or commutation is not being attended to and no reason is forthcoming as to why the delay is caused, this Court is driven to commute the death sentence into life imprisonment out of a sheer sense of helplessness and frustration.
Therefore, with respect, the fixation of the time limit of two years does not seem to us to accord with the common experience of the time normally consumed by the litigative process and the proceedings before the executive.
Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment.
There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated.
A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live.
The Vinoba Bhaves, who undertake the "Prayopaveshana" do not belong to the world of ordinary mortals.
Therefore, it is understandable that a convict sentenced to death will take recourse to every remedy which is available to him under the law, to ask for the commutation of his sentence, even after the death sentence is finally confirmed by this Court by dismissing his Special Leave Petition or Appeal.
But, it is, at least relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice.
It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification.
Stay orders are obtained in those proceedings and then, at the end 596 of it all, comes the argument that there has been prolonged delay in implementing the judgment or order.
We believe that the Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it.
If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation And then, the rule of two years will become a handy tool for defeating justice.
The death sentence should not, as far as possible, be imposed.
But, in that rare and exceptional class of cases wherein that sentence is upheld by this Court, the judgment or order of this Court ought not to be allowed to be defeated by applying any rule of thumb.
Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed.
The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula as a matter of "quod erat demonstrandum".
In the case before us, the sentence of death was imposed upon the petitioners by the learned Sessions Judge, Sangrur, on November 26, 1977.
It was upheld by the High Court on July 18, 1978.
This Court dismissed the Special Leave Petition filed by the petitioners on March 5, 1979.
The matter is pending in this Court since then in one form or another, by reason of some proceeding or the other.
The last of the writ Petitions filed by the petitioners was dismissed by this Court on August 24, 1981.
We do not know why the sentence imposed upon the petitioners has not been executed for more than a year and half.
The Government of Punjab must explain that delay.
We are of the opinion that, in the instant case, the sentence of death imposed upon the petitioners by the Sessions Court and which was upheld by the High Court, and this Court, cannot be vacated merely for the reason that there has been a long delay in the execution of that sentence.
On the date when these Writ Petitions came before us, we asked the learned counsel for the petitioners to argue upon the 597 reasons why, apart from the dealy caused in executing the death sentence, it would be unjust and unfair to execute that sentence at this point of time.
Every case has to be decided upon its own facts and we propose to decide this case on its facts.
After hearing the petitioners ' counsel, we will consider the question whether the interests of justice require that the death sentence imposed upon the petitioners should not be executed and whether, in the circumstances of the case, it would be unjust and unfair to execute that sentence now We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously.
A self imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received.
Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice.
Several instances can be cited, to which the record of this Court will bear testimony in which petitions are pending before the State Governments and the Government of India for an inexplicably long period.
The latest instance is to be found in Cri.
Writ Petition Nos.345 348 of 1983, from which it would appear that petitions filed under article 161 of the Constitution are pending before the Governor of Jammu & Kashmir for anything between 5 to 8 years.
A pernicious impression seems to be growing that whatever the courts may decide, one can always turn to the executive for defeating the verdict of the Court by resorting to delaying tactics.
Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is preconditioned by the duty to be fair and quick.
Delay defeats justice.
On the question as to whether the death sentence should not be allowed to be executed in this case, we shall pronounce later after hearing the parties.
In the meanwhile, notice will go to the Government of Punjab.
Order accordingly.
[/INST]Appellants along with three others were tried by the Additional Sessions Judge, Ferozepore for offences under Section 302 I.P.C. read with sections 120 B and 149 on the charge that, in pursuance of a conspiracy, they caused the death of five persons and injuries to three others on the night between the 29th and 30th September, 1978 in the village of Kaila.
The background of the incident leading to the crime and furnishing its motive was that certain members of the family of those who were murdered in the instant case were tried for the murder in June 1977, of Buta Singh, the son of accused No. 1 but acquitted.
In order to prove the charges against the accused, the prosecution examined as many as 53 witnesses while the accused examined 16 witnesses in their defence.
The case of the prosecution rested mainly on three categories of evidence : (1) the evidence of the three eye witnesses, Mohinder Singh (PW 15), Naval Singh (PW 16) and Sant Kaur (PW) 247 ; (2) the dying declaration (Exh. PV) made by Sohan Singh ; and (3) the recovery of fire arms and cartidges from the possession of Accused Nos.
3,4,5,6.
and 7.
The Additional Sessions Judge convicted nine out of the ten accused for the offences of conspiracy and murder, sentenced accused nos.
1, 3, 4, 5, 6 and 7 to death and accused nos.
2, 8 and 9 to life imprisonment.
Accused No. 10, Harbans Kaur, wife of accused No. 2 Darshan Singh alias Bhasuri, was acquitted.
The High Court of Punjab and Haryana confirmed the death sentence imposed upon accused nos.
1, 3, 5, 6 and 7, but reduced the sentence of accused No. 4 to lift imprisonment.
Hence the appeals by five persons who are sentenced to death and two who are sentenced to life imprisonment.
Accepting the appeals of accused 1 and 2 and acquitting them, and, while maintaining the convictions of the rest, but altering the sentence of death imposed on accused nos.
3, 5, 6 and 7 to one of life imprisonment, the court 606 ^ HELD: 1 : 1 No rule of law stipulates that an accused whose name is not mentioned in the First Information Report is entitled to an acquittal.
The fact that the names of other accused are not mentioned in the First Information Report was at least a circumstance which the prosecution had to explain [609 D E] In the instant case, the High Court, instead of considering the circumstances in which, and the reasons for which, Mohinder Singh did not mention the names of the other accused in the First Information Report, erroneously took the view that the omission in the F.I.R. was a matter of little consequence since it was made good by the fact that Sohan Singh had mentioned the names of all the accused in his dying declaration, further overlooking the fact that the dying declaration itself was open to grave exception.
[609 E F, 610A] 1 : 2 When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it.
[610 E] Here, if the vital organs of Sohan Singh, according to Dr. Birinder Pal (PW 2) who conducted the postmortem examination on his body, were "completely smashed", it is impossible to believe that he was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death.
True, he was quite near his creator on the morning of the 30th, dangerously so indeed, so that one may accept that his mind was then free from failings which afflict the generality of human beings, like involving enemies in false charges.
But, Sohan Singh was too ill to entertain any thoughts, good or bad, and he could not possibly have been in a position to make any kind of intelligible statement so as to implicate accused 3 to 9.
His dying declaration cannot therefore, be relied upon.
[610 B D] 2.
Liquor is no lie detector.
The evidence regarding conspiracy, let in through the mouth of Surat Singh (PW 27) an utter stranger, to implicate Accused nos.
1 and 2 to the effect that the conspirators discussed their plans to commit the murders, throwing all caution to winds and in an intoxicated condition cannot be believe.
It cannot be assumed that accused nos.
1 and 2 were so drunk as to overlook the presence of a stranger in their midst and yet not so drunk so as to be unable to discuss the execution of their criminal design.
Once Surat Singh is disbelieved and the story of conspiracy is discounted, the resultant conclusion obviously is the absence of Accused nos.
1 and 2 at the scene of occurrence entitling them to an acquittal [610 F, H, 611 A B] 3.
If age was a circumstance in favour of one of the accused, the same criterion must be applied to all.
More so in a case like this, when a large group of persons took part in the murders and untrue evidence has been mixed up with the true evidence, it becomes difficult to hold any particular accused guilty of any particular act.
[612 E, F] 607
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<s>[INST] Summarize the judgementAppeal No. 205 of 1953.
Appeal from the Judgment and Order dated the 24th February, 1953, of the High Court of Judicature at Calcutta in Appeal from Original Order No. 19 of 1952, arising out of the Order dated the 23rd day of August, 1951, of the High Court of Calcutta in its Ordinary Original Civil Jurisdiction Matter No. 157 of 1951.
K. P. Khaitan, (section N. Mukherjea and Rajinder Narain, with him) for the appellant.
M. C. Setalvad, Attorney General for India, (A. N. Sen, V. section Sawhney and section P. Varma, with him) for the respondents.
November 1.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is directed against a judgment of an appellate bench of the Calcutta High Court, dated the 24th February, 1953, reversing, on appeal, the judgment and order of a single Judge sitting on the Original Side of that Court, passed on an application under section 34 of the .
The material facts are not in controversy and may be shortly stated as follows: On the 7th of July, 1950, the respondent, Moran and Company Limited, passed two Bought Notes to the appellant company, couched in identical terms, under which the appellant purchased 12,00,000 yards of hessian cloth, 6,00,000 yards under each contract, on certain terms and conditions stated therein.
The delivery was to be made every month from January, 1951, at the rate of 1,00,000 yards per month under 864 each of these notes and payments were to be made in cash 'on delivery, each delivery being treated as a separate and distinct contract.
The Bought Notes commenced thus: Dear Sirs, We have this day Bought by your order and on your account from our Principals.
" The particulars of the goods, the price, the time of delivery and other terms of the contract are then set out and amongst the terms is an arbitration clause worded as follows: " All matters, questions, disputes, differences and/ or claims arising out of and/or concerning and/or in connection with and/or in consequence of or relating to this contract, whether or not the obligations of either or both parties under this contract be subsisting at the time of such dispute and, whether or not this contract has been terminated or purported to be terminated or completed, shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.
" The notes were signed by the respondent, Moran and Company, describing themselves as brokers.
It is admitted that the goods covered by the Bought Notes were delivered to the appellant in all the months from January to June, 1951, with the exception of the goods due to be delivered for the month of March, 1951.
The appellant required from the respondent delivery of goods in respect of the month of March but the latter informed the appellant, by a letter dated the 27th March, 1951, that its principals disowned a liability in this respect as there was default on the part of the appellant in not giving shipping instructions for the said goods within the time mentioned in the contracts.
The appellant denied any default on its part and did not also accept the position that the respondent had any principal, and on the 27th of April, 1951, it sent its bills to the respondent claiming Rs. 1,13,042 3 0 as damages for non delivery of the 865 goods.
As the respondent did not comply with this demand, the appellant contemplated referring the matter in dispute to the arbitration of the Bengal Chamber of Commerce as provided in the contracts and while it was preparing to take steps in that direction, the respondent, on the 11th of June, 1951, filed a suit against the appellant in the Original Side of the Calcutta High Court (being Suit No. 2516 of 1951,) and it is in respect of this suit that the application under section 34 of the has been made.
It was alleged in the plaint that the plaintiff acted merely as broker and in that capacity brought about the two contracts of sale and purchase evidenced by the two Bought Notes mentioned above, that the real seller was a firm known as Gowarchand Danchand, and that the plaintiff not being a party to the contract could not incur any liability under its terms.
There were prayers in the plaint for a declaration that the plaint.
off was not a party to the said contracts and, that it had no liability under the same.
There was a further prayer for an injunction restraining the respondent from, claiming any damages in respect of the said contracts The writ of summons was served on the appellant on the 23rd of June, 1951.
On the 19th July, 1951, it filed an application under section 34 of the praying that the proceedings in the suit may be stayed in order that the matter in dispute between the parties may be dealt with under the arbitration clause contained in the contracts.
The application was heard by Das Gupta J. who allowed the prayer of the applicant and stayed further proceedings in the suit.
In the opinion of the learned Judge the dispute in this case was not whether there was any contract entered into by and between the appellant and the respondent: but whether the respondent, who admittedly passed the two Bought Notes to the appellant, could be made liable under the contract by reason of the fact that it described itself as broker.
The answer to this question depended according to the learned Judge upon the interpretation of the contract itself and the dispute arising as.
it did out of or concerning or relating to the 866 contracts would come within the purview of the arbitration clause.
Against this judgment the respondent took an appeal to the Appellate Division of the High Court and the appeal was heard by a bench consisting of Chakravartti C.J. and Sarkar J.
By two separate judgments which concurred in the result, the Chief Justice and the other learned Judge allowed the appeal and vacated the order for stay.
It is against this judgment that the appellant has come to this Court on the strength of a certificate under article 133(1)(a) of the Constitution.
The short point for our consideration is, whether on the facts of this case, the appellant is entitled to an order under section 34 of the , staying the proceedings of the suit commenced by the respondent.
Section 34 of the is in these terms: " Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.
" Thus in order that a stay may be granted under this section, it is necessary that the following conditions should be fulfilled: (1)The proceeding must have been commenced by a party to an arbitration agreement against any other party to the agreement; (2)the legal proceeding which is sought to be.
stayed must be in respect of a matter agreed to be referred 867 (3)the applicant for stay must be a party to the legal proceeding and he must have taken no step in the proceeding after appearance.
It is also necessary that he should satisfy the Court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration; and (4)the Court must be satisfied that there is no sufficient reason why the matter should not be referred to an arbitration in accordance with the arbitration agreement.
The third condition can be taken to have been fulfilled on the facts of the present case, and the fourth is one which is exclusively for the determination of the Court.
The controversy between the parties centres round the other two conditions, namely, conditions (1) and (2) ; and unless the applicant for stay succeeds in establishing that the respondent is a party to an arbitration agreement and that the subject matter of dispute in the suit is a matter coming within the scope of such agreement, it cannot possibly ask the Court to order a stay of the proceedings, under section 34 of the .
The learned Judges of the appellate bench of the High Court have taken the view that the only matter in dispute between the parties to the suit is whether the plaintiff was a party to the contract.
It was definitely alleged by the plaintiff that the contract was not between it and the appellant but was one between the appellant and a third party and since the arbitration agreement is contained in the contract, it is an agreement between those parties only, which could not bind or affect the plaintiff in any way.
The dispute, it is said, which is the subject matter of the suit does not arise under the contract and does not relate to it; it is outside the contract altogether and does not come within the scope of the arbitration agreement.
The decision in the appeal therefore rests entirely on the finding of the learned Judges that the matter in dispute between the parties to the suit does not come within the ambit of the arbitration clause.
In view of this decision the learned Judges did not consider it necessary to go into the first point as to whether in fact 868 there was a binding arbitration agreement between the parties to the suit.
The learned Chief Justice no doubt did in a manner consider that point also, but he refrained from pronouncing any decision upon it, being of opinion that a decision on this question which was the only issue in the suit itself might prejudice the parties and create a bar of res judicata against one or the other.
We think that on the facts of this case it was necessary for the learned Judges of the appellate bench to decide the question as to whether or not the plaintiff in the suit which the applicant wants to stay was a party to the arbitration agreement.
This would have a material bearing on the decision of the other question upon which the learned Judges rested their judgments.
The first and essential pre requisite to making an order of stay under section 34 of the is that there is a binding arbitration agreement between the parties to the suit which is sought to be stayed.
The question whether the dispute in the suit falls within the arbitration clause really pre supposes that there is such agreement and involves consideration of two matters, viz., (1) what is the dispute in the suit and (2) what disputes the arbitration clause covers?(1).
The contention raised by the plaintiff in the present suit is, that the contract was really between the appellant and another party and not between it and the appellant and consequently it was not bound by the contract and could not be made liable for any damages in terms thereof.
In substance therefore the controversy between the parties in the suit is whether the plaintiff did incur any liability in terms of the contracts evidenced by the two Bought Notes to which it was a signatory no matter in whatever capacity.
The question whether the plaintiff was a party to the agreement at all is undoubtedly one which cannot go before the arbitrators and with that question they cannot possibly deal.
But as Lord Porter pointed out in Heyman vs Darwins (2), "this does not mean that in every instance (1) Vide per Viscount Simon in Heyman vs Darwins, at 360.
(2) , 393.
869 in which it is claimed that the arbitrator has no juris diction the Court will refuse to stay an action.
If this were the case such a claim would always defeat an agreement to submit disputes to arbitration, at any rate until the question of jurisdiction had been decided.
The Court to which an application for stay is made is put in possession of the facts and arguments and must in such a case make up its mind whether the arbitrator has jurisdiction or not as best it can on the evidence before it.
Indeed, the application for stay gives an opportunity for putting these and other considerations before the court that it may determine whether the action shall be stayed or not.
" Section 34 of the as is well known is a virtual reproduction of section 4 of the English of 1889.
The observations quoted above were approved of by Mr. Justice section R. Das in the case of Khusiram V. Hanutmal (1) and it was held by the learned Judge that where on an application made under section 34 of the for stay of a suit, an issue is raised as to the formation, existence or validity of the con.
tract containing the arbitration clause, the Court is not bound to refuse a stay but may in its discretion, on the application for stay, decide the issue as to the existence or validity of the arbitration agreement even though it may involve incidentally a decision as to the validity or existence of the parent contract.
We are in entire agreement with the view enunciated above.
As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the to decide first of all whether there is a binding agreement for arbitration between the parties to the suit.
So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Nair and (1) at 518.
870 Company vs Gordhandass (1).
If on the other hand it is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.
The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company vs Gordhandass (1) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement.
The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter.
The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.
The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were.
Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.
In this case it is certainly not admitted that the respondent was a party to the contract.
In fact that is the subject matter of controversy in the suit itself.
But, as has been said already, the question having been raised , in this application, under section 34 of the , the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the, parties to the suit.
It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to,the contract and formally a (1) ; 871 contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.
It was the contention of the respondent in the Court below that this test was not fulfilled in the present case.
The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them.
The writer does not thereby become a party to the contract of purchase and sale even as an agent.
He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act 'Cannot be invoked against him.
Mr. Khaitan on the other hand argues that the English law being quite different from the Indian law regarding the liability of an agent contracting on behalf of an undisclosed principal, the English authorities are no guide to a solution of the problem.
It is said that the case of Patiram Banerjee vs Kanknarrah Co., Ltd.(1), upon which the respondent relies, was wrongly decided being based upon English authorities which have no application to India.
The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer.
In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.
We, therefore, allow the appeal and set aside the judgments of both the Courts below.
The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the the question whether the respondent was or was not a party (1) Cal.
I050. 872 to the arbitration agreement.
If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to, proceed by way of arbitration in accordance with the arbitration clause.
If on the other hand the finding is adverse to the appellant, the application will be dismissed.
The appellant will have its costs of this appeal.
Further costs between the parties will abide the result.
Appeal allowed.
[/INST]Paragraph 516 B of the Manual for the Superintendence and Management of Jails in Punjab provides for premature release of prisoners.
The State Government had issued in structions in 1971 modifying the executive instructions in paragraph 516B, to the effect that a convict must have undergone 8 1/2 years of substantive sentence before his case could be submitted to the Government for consideration.
Again there was another executive instruction in 1976 which provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment would not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment.
Paragraph 631 of the said Manual relates to remission of sentences.
The note below paragraph 631 reproduces the gist of paragraph 516 B. Going by the preface of the Manual, paragraph 631 has statutory force whereas paragraph 5 16B being in the nature of executive instruction has no statutory force.
The respondents filed Criminal Writ Petitions before the High Court praying for their premature release on the basis that the note under paragraph 631 has statutory force, the executive instructions issued in 1971 and 1976 have to be ignored and that the Jail Superintendent was bound to submit their cases to the Government for premature release.
148 The High Court allowed the claim of the respondents and held that the executive instructions issued in 1971 and 1976 being in conflict with the statutory note must give way to the latter.
These appeals, by special leave, preferred by the State Government challenge the High Court 's decision on the ground that the source of paragraphs 516 and the note at the foot of paragraph 631 being the same, viz., resolution dated 6th September, 1905, it cannot be concluded that the note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and in case of conflict between the two, the note which is statutory in character must prevail.
Allowing the appeals, this Court, HELD: 1. Remissions by way of reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Criminal Procedure Code or in exercise of constitutional power under Article 72/161 of the Constitu tion.
Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433A, or where the clemency power under the Constitution is in voked.
The power under Articles 72 and 161 of the Constitu tion is absolute and cannot be lettered by any statutory provision such as Sections 432, 433 and 433A of the Code.
This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.
[153H; 154A C] 2.
Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences.
If the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 Cr.
P.C., carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment.
Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years.
In the case of other 'lifers ' the insistence under the 1971 amendment is that he should have a period of atleast 8 1/2 years of incarceration before release.
The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code.
Since Section 433A is prospective, so also 149 would be the 1971 and 1976 amendments.
[154E H] Gopal Vinayak Godse vs State of Maharashtra, ; and Maru Ram vs Union of India, ; , relied on.
According to the preface only those paragraphs which are blacklined have statutory character.
The note in ques tion is not so blacklined.
The source of paragraph 516B and the note is the very same Resolution No. 159 167 of the Government of India dated 6th September, 1905.
It is diffi cult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in anoth er.
The marginal note to the Note in question in terms refers to paragraph 516 B which means it was merely a repro duction of the latter paragraph.
In the circumstances, if the note was intended to be conferred a statutory character, it would have been blacklined in keeping with the scheme of the Manual.
Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g., 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison ers.
The note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule, paragraph 5 16B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under paragraph 516B.
It is, therefore, clear that the note is neither an integral part of paragraph 631; nor does it have statutory flavour as held by the High Court.
[155B F]
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<s>[INST] Summarize the judgementivil Appeal No. 1049 of 1965.
Appeal from the judgment and order dated July 31, 1964 of the Gujarat High Court in Special Civil Application No. 1054 of 1963.
Soli Sorabjee, D.M. Damodar, B. Datta and J.B. Dadachanji, for the appellant.
V. A. Seyid Muhammad and S.P. Nayar, for the respondents.
P.R. Mridul, Janendra Lal and B.R. Agarwala, for intervener No. 1.
J.B. Dadachanji, for interveners Nos. 2 and 3.
Ramaswam, J.
This appeal is brought by certificate from the judgment of the High Court of Gujarat, dated July 31, 1964 in Special Civil Application No. 1054 of 1963.
The appellant is the sole proprietor of Messrs Gordhandas and Co. carrying on business as a dealer in textiles in Bombay.
Under an agreement between the appellant on the one hand and the Gandevi Vanat Udhoog Sahkari Mandli Ltd. (hereinafter referred to as the 'Society ') the Society manufactured cotton fabrics during the period between June, 1959 and September 1959 and from October 1, 1959 to January 31, 1961 for the appellant on certain terms and conditions which were later reduced to writing on October 12, 1959.
Under these terms, the Society agreed to carry out weaving work on behalf of the appellant on payment of weaving charges fixed at 19 nP. per yard which included expenses the Society would have to incur in transporting yarn from Bombay and cotton fabrics woven by the Society to Bombay.
The appellant was to supply yarn to be delivered at Bombay to the Society and the Society was to made its own arrangement to bring the yarn to its factory at Gandevi.
Clause 11 provided that the yarn supplied by the appellant, remaining either in stock or in process or in the form of ready made pieces would be in the absolute ownership of the appellant and the Society, as the bailee of the yarn, undertook to 255 take such care of it as it would normally take if the yarn belonged to it.
The Society also undertook to have the yam insured against fire, theft and all other risks including transit risks and further undertook to reimburse the appellant in case it failed to do so.
The terms of the agreement though recorded on October 12, 1959 were to be deemed to be effective as from April 21, 1959 and the agreement was terminable by either party by giving one month 's notice.
The Society was a cooperative society carrying on its work at Gandevi and was registered on or before May 31, 1961 and consisted of members who owned powerlooms.
The Society started the weaving work for the appellant some time in May or June 1959 and supplied to the appellant between June 1, 1959 and January 3, 1961 cotton fabrics measuring 3,19,460 yards.
The Society had obtained L 4 licence as required by the (hereinafter referred to as the 'Act ').
By letters, dated August 29, 1959 and October 27, 1961 the Excise Department had granted exemption from excise duty payable on cotton fabrics manufactured by the Society under the notification issued by the Central Government.
On November 10, 1961 the excise authorities issued a notice.
the appellant demanding a sum of Rs. 1,69,263.44 payable as excise duty.
It was alleged that the duty was.
payable by the appellant as it had got the goods manufactured through the Society and had got them removed from the Society 's factory at Gandevi without payment of duty.
On January 10, 1962 the Superintendent of Central Excise:, Bulsar sent another notice to show cause why penalty should not be imposed upon the appellant for contravention of rule 9 and why duty should not be charged for the cotton fabrics so removed by the appellant.
The appellant showed cause and on November 26, 1962 the Assistant Collector of Central Excise and Customs, Surat held that the appellant was liable to pay excise duty to.
the extent of Rs. 2,20,574.74, being the total amount of basic duty and a penalty of Rs. 250 was levied for contravention of rule 9.
The appellant preferred an appeal to the Collector of Central Excise Baroda but the appeal was dismissed.
Thereafter the appellant moved the High Court of Gujarat for grant of a writ under article 226 of the Constitution.
The High Court dismissed the writ petition by its judgment, dated July 31, 1964 but gave a direction that the: respondent was to work out the excise duty on the footing that the appellant was entitled to exemption from duty altogether in respect of goods supplied for the period from June 1, 1959 to September 30, 1959.
As regards the two other periods i,e., October 1, 1959 to April 30, 1960 and from May 1, 1960 to January 31, 1961, the High Court dismissed the writ petition and directed the respondent to charge duty at the rate of 29.3 nP per square meter.
256 Clause (d) of section 2 of the Act defines "excisable goods" as meaning goods specified in the First Schedule as being subject to a duty of excise.
Item 19 in the First Schedule provides for excise duty at different rates depending upon the variety of cotton fabrics.
Section 3 which is the charging section, provides for the levy.
and collection of duties specified in the First Schedule on all excisable goods which are produced or manufactured in India.
Rule 8 authorises the Central Government to exempt any excisable goods from the whole or any part of duty payable on such goods.
Clause (1) of rule 9 provides that no excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed.
Clause (2) of that rule provides that if any excisable goods are, in contravention of sub rule (1 ), deposited in, or removed from any place specified therein, the producer or manufacturer thereof shall pay the duty leviable on such goods upon written demand made by the proper officer and shall also be liable to a penalty which may extend to two thousand rupees and such goods shall be liable to confiscation.
In pursuance of the power under rule 8, the Central Government issued notifications from time to time granting exemptions on cotton fabrics, though such goods were excisable goods under tariff item 19.
The first relevant notification is dated January 5, 1957.
By this notification certain classes of cotton fabrics were exempt from payment of excise duty.
of the items exempted the seventh item is as follows: "Cotton fabrics manufactured by or on behalf of the same person in one or more factories commonly known as powerlooms (without spinning plants) in which less than 5 powerlooms in all are installed;" The next relevant notification is notification No. 74/59, dated July 31, 1959 which reads.
as follows: "G.S.R. 899 In pursuance of sub rule (1) of rule 8 of the Central Excise Rules, 1944, as in force in India and as applied to the State of Pondicherry, ' the Central Government hereby exempted cotton fabrics produced by any cooperative society formed of owners of cotton powerlooms, which is registered or which may be registered on or before the 31st March, 1961 under any law relating to co operative societies from the whole of the duty leviable thereon, subject to the following conditions : 257 (a) that every member of the co operative society has been exempt from excise duty for three years immediately preceding the date of his joining such society; (b) that the total number of cotton powerlooms owned by the co. operative society is not more than four times the number of members forming such society; (c) that a certificate is produced by each member of the co operative society from the State Government concerned or such officer as may be nominated by the State Government that he is a bona fide member of the society and that the number of cotton powerlooms in his ownership and actually operated by him does not exceed four and did not exceed four at any time during the three years immediately preceding the date of his joining the society, and that he would have been exempt from excise duty even if he had not joined the co operative society;. . .
The Central Government issued another notification, dated April 30, 1960 by which the earlier notification, dated July 31, 1959 was superseded.
By this notification the Central Government exempted cotton fabrics produced on power looms owned by any co operative society or owned by or allotted to the members of the society from the whole of the duty leviable thereon subject .to the four conditions.
therein set out.
The notification,dated April 30, 1960 is to the following effect: "In pursuance of sub rule (1 ) of rule 8 of the Central.
Excise Rules, 1944, as in force in India and as applied to the State of Pondicherry, and in supersession of the Notification of the Govt.
of India, Ministry of Finance (Department of Revenue) No. 74/59 Central Excise, dated the 31st July 1959, the Central Government hereby exempts cotton fabrics produced on powerlooms owned by any cooperative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before the 31st March, 1961 under any law relating to cooperative societies, from the whole of the duty leviable thereon subject to the following conditions : (a) that every member of the cooperative society who has been a manufacturer of cotton fabrics on powerlooms, has been exempt from excise duty for three years immediately preceding the date of his joining such society.
258 (b) that the total No. of cotton powerlooms owned by the cooperative society or owned by or allotted to its members is not more than four times the number of members forming such society.
(c) that each member of the cooperative society produces a certificate from the State Government concerned or such officer as.
may be nominated by the State Government that he is a bona fide member of the society and that the number of cotton power looms owned by or allotted to him and actually operated by him does not exceed four and did not exceed four at .any time during that three years immediately preceding the date of his joining the society and that he would have been exempt from excise duty even if he had not joined the cooperative society and. . . . . " The main contention on behalf of the appellant is.
that the ,case fell within the language of the two notifications, dated July 31, 1959 and April 30, 1960 and the appellant was entitled to ,exemption from payment of excise duty on the cotton fabrics.
The argument was stressed that the exemption applied to.
all cotton fabrics which were produced on power looms owned by the Cooperative Society or on powerlooms.
allotted to its members and it was not a relevant consideration as to who.
produced or manufactured such fabrics, whether it was the Society itself or its members or even outsiders.
It was conceded by the appellant that it was the owner of the cotton fabrics.
But even upon that assumption the claim of the appellant is that it was entitled to exemption from excise duty as it was covered by the language of the two notifications already referred to.
In our opinion, the argument of the appellant is well founded and must be accepted as.
correct.
The notification, dated July 31, 1959 grants exemption to "cotton fabrics produced by any Co operative Society formed of owners ,of cotton powerlooms which is registered or which may be registered on or before March 31, 1961" subject to four conditions set out in the notification.
In the next notification, dated April 30, 1960 exemption was granted to "cotton fabrics.
produced on powerlooms owned by any cooperative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before March 31, 1961" subject to, the conditions specified in the notification.
It was contended on behalf of the appellant that under the contract between the appellant and the 'Society there was no relationship of master and servant but.
the appellant supplied raw material and the contractor i.e., the Society produced the goods.
But even on the assumption that the appellant had manufactured the goods by employing hired labour and was therefore a manufacturer, still the appellant was entitled to 259 exemption from excise duty since the case fell within the language of the two notifications, dated July 31, 1959 and April 30, 1960, and the cotton fabrics.
were produced on power looms owned by the co operative society and there is nothing in the notifications to suggest that the cotton fabrics should be produced by the Cooperative Society "for itself" and not for a third party before it was entitled to claim exemption from excise duty.
It was contended on behalf of the respondent that the object of granting exemption was to encourage the formation of co operative societies which not only produced cotton fabrics but which also consisted of members, not only owning but having actually operated not more than four power looms during the three years immediately preceding their having joined the society.
The policy was that instead of each such member operating his looms on his own, he should combine with others by forming a society which, through the cooperative effort should produce cloth.
The intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society.
We are unable to accept the contention put forward on behalf of the respondents as correct.
On a true construction of the language of the notifications, dated July 31, 1959 and April 30, 1960 it is clear that all that is.
required for claiming exemption is that the cotton fabrics must be produced on power looms owned by the cooperative society.
There is no further requirement under the two notifications that the cotton fabrics must be produced by the Co operative Society on the powerlooms "for itself".
It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words.
The entire matter is governed wholly by the language of the notificatlon.
If the tax payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.
If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different, but that is not the case here.
In this connection we may refer to the observations of Lord Watson in Salomon vs Salomon & Co.(1): "Intentlon of the legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it.
In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words o.r by reasonable and necessary implication." (1) ; , 38.
260 It is an application of this principle that a statutory notification may not be extended so as to meet a casus omissus.
As appears in the judgment of the Privy Council in Crawford vs Spooner(1). ". we cannot aid the legislature 's defective phrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies which are left there.
" Learned Council for the respondents is possibly right in his submission that the object behind the two notifications is to encourage the actual manufacturers of handloom cloth to switch over to power looms by constituting themselves into Cooperative Societies.
But the operation of the notifications has to be judged not by the object which the rule making authority had in mind but by the words which it has employed to effectuate the legislative intent.
Applying this principle we are of opinion that the case of the appellant is covered by the language of the two notifications, dated July 31, 1959 and April 30, 1960 and the appellant is entitled to exemption from excise duty for the cotton fabrics produced for the period between October 1, 1959 to April 30, 1960 and from May 1, 1960 to January 3, 1961.
It follows therefore that the appellant is entitled to the grant of a writ in the nature of certiorari to quash the order of the Assistant Collector of Central Excise of Baroda, dated November 26, 1962 and the appellate order of the Collector of Central Excise, dated November 12, 1963.
For the reasons expressed we hold that the judgment of the High Court of Gujarat, dated July 31, 1964 should be set aside, that Special Civil Application No. 1054 of 1963 should be allowed and that a writ in the nature of certiorari should be granted to quash the order of the Assistant Collector of Excise and Customs dated November 26, 1962 and the order of the Collector of Excise dated November 12, 1963.
This appeal is accordingly allowed with costs.
R.K.P.S. Appeal allowed.
[/INST]The respondent 's lorry was used by the driver of the lorry and another, without the respondent 's knowledge, for illicit transport of forest timber worth more than Rs. 50.
The driver and the other person were convicted for offences under sections 35 and 36 of the Andhra Pradesh Forest Act, 1882, and the magistrate directed confiscation of the lorry under section 43 of the Act as amended by Act 11 of 1963.
The Sessions Court set aside the order of confiscation in appeal and the High Court confirmed the order of the Sessions Court.
In appeal to this Court, HELD: The Legislature originally conferred both upon the trial court and the appellate court a discretion to pass an appropriate: order with regard to the disposal of a vehicle used in the commission of an offence under the Act.
After the amendment of 1963, the Legislature made it obligatory upon the trial court to confiscate the vehicle used, but no such restriction was placed upon the appellate court; Under section 47, the appellate court could pass orders regarding disposal of property in the same manner 'as an appellate court under section 520 Criminal Procedure Code, corresponding to section 419 of the Code of 1872.
Under section 520 of the Code, power is conferred upon the appellate court to pass any appropriate order, as may be just, regarding the disposal of property used in the commission of any offence.
The order of the Sessions Court in appeal in the present case was essentially a just order and was rightly confirmed by the High Court.
[626 B E]
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<s>[INST] Summarize the judgementl Appeals Nos. 1449 to 1454 of 1967.
Appeals by special leave from the judgments and orders dated December 15, 1966 of the Madhya Pradesh High Court in Misc.
Petitions Nos.
303 of 1966 etc.
I. N. Shroff, for the appellants (in all the appeals).
M. N. Phadke, K. L. Hathi and P. C. Kapur, for the respondents (in C.As.
1449, 1450 and 1452 of 1967).
V.S. Desai, K. L. Hathi and P. C. Kapur, for the respondents (in C.As.
1453 and 1454 of 1967).
The Judgment of the Court was delivered by Grover, J.
All these appeals arise out of writ petitions that were filed in the High Court of Madhya Pradesh challenging the notices of demand issued by the Deputy Transport Commissioner for payment of the amount of passenger tax said to be due under the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959, hereinafter referred to as the 'Act '.
By a common judgment dated November 8, 1966 the High Court allowed the petitions and quashed the demand notices.
The appeals may be divided into two categories.
In C. As. 1449 and 1453 of 1967 returns had been duly filed as contemplated by section 5 of the Act but no tax had been deposited as required by section 6.
Demand 9 85 notices were issued in respect of the tax payable pursuant to the returns some years later.
Proceedings were also taken as no payment was made for recovery of the tax as arrears of land revenue.
In the other four appeals the returns were never filed but it appears the authorities did take certain proceedings under section 7 of the Act and in some cases accounts of the respondents were checked and their liability determined.
When demand notices were sent and recoveries sought to be made the writ petitions were filed.
The High Court did not go in these matters fully ,and treated all the petitions as if the facts were similar.
Section 3 of the Act which is the charging section provides that there shall be levied and paid to the State Government a tax on all passengers carried by stage carriages at a rate equivalent to 15 % of the fare inclusive of the tax payable to the operator of a stage carriage.
The tax has to be collected by the operator of a stage carriage and paid to the State Government in accordance with the provisions of the Act.
Under section 5 the operator must deliver to the tax officer or to such prescribed officer as may be specified a return in the prescribed form and manner either daily or at such intervals as may be prescribed.
Section 6 lays down that the tax payable during any month in accordance with the return submitted under section 5 shall be paid into a Government treasury by the operator and the receipt evidencing such payment has to be forwarded to the Tax Officer.
Sections 8, 9 and 10 are in the following terms "(8) Fares escaping assessment.
If, for any reason, the whole or any portion of the tax leviable under this Act, for any month has escaped assessment, the Tax Officer may, at any time within, but not beyond, one year from the expiry of that month, assess the tax which has escaped assessment, after issuing a notice to the operator and making such inquiry as the officer may ,consider necessary.
(9)Penalty for non payment of tax.
Where the whole orany portion of the tax payable to the State Government in respect of any stage carriage for any month or portion thereof in pursuance of sections 6, 7 and 8 has not been paid to it in time the Tax Officer may, in his discretion, levy in addition to the tax so payable, a penalty not exceeding 25 per cent of the maximum tax which would have been payable to the State Government if the stage carriage had carried its full complement of passengers during such month or portion thereof.
(10)Recovery of tax, etc, (1 ) In the cases referred, to in sections 7, 8 and 9 the, Tax Officer shall serve on the operator a notice of demand for the sums payable 9 86 to the State Government and the sums specified in such notice may be recovered from the operator as arrears of land revenue.
(2)The tax shall be a first charge on the stage carriage in respect of which it is due as also on its accessories and such stage and the accessories thereof may be attached and sold for the recovery of the tax under the appropriate law relating to the recovery of arrears of land revenue.
" Section 12 provides for an appeal against a notice of demand ' served under section 10.
The scheme of the above provisions apparently is that the operator of a stage carriage has to submit a return in accordance with section 5 and pay tax into the Government treasury every month as provided by section 6.
No question can arise of any assessment order being made under section 7 by the Tax Officer where the returns are found to be correct and complete.
It is only where either no returns have been submitted or where the return submitted appear to the Tax Officer to be incorrect or incomplete that the Tax Officer has to follow the procedure laid down in section 7 and determine the tax payable by the operator.
The High Court was of the view that even where returns had been filed and accepted as correct the Tax Officer has to pass a proper assessment order holding the operator liable for payment of tax in accordance with the return submitted by him.
In other words no notice of demand can be issued until the Tax Officer makes such an order quantifying the amount of tax.
We are unable to accede to the contention which prevailed ' with the High Court that even where returns had been submit ted but the tax has not been paid the Tax Officer is bound to, make an order before serving a notice of demand even though the demand is strictly in accordance with the returns which have been submitted.
Section 7 rules out any such course to be followed by the Tax Officer.
It is only when the returns have not been submitted or when return submitted are found to be incorrect and incomplete that the Tax Officer has to make an inquiry, and determine the sum payable by the operator by way of tax.
Similarly if there has been escapement of tax proceedings have, to be taken under section 8 and an order has to be made after an enquiry.
The position would be same if penalty is sought to be levied, under section 9.
But where returns have been accepted as correct nothing more need be done except to recover the tax due which has not been paid and no asessment order need be passed in view of the express language of section 7.
987 We are satisfied that in the two appeals, i.e., C. As. 1449 and 1453/67 in which returns had been filed the Tax Officer was not bound to make any order quantifying the amount of tax before issuing the notice of demand.
The amount sought to be realized was quantified in the returns themselves vide Form IV read with Rule 4(2)(c) of the M. P. Motor Vehicles (Taxation of Passengers) Rules.
It has not been shown that any penalty was sought to be imposed in those two cases.
The order of the High Court, therefore, in these appeals cannot be sustained and is hereby set aside and the writ petitions are ordered to be dismissed.
As regards C. As.
1450, 1451, 1452 and 1454/67, it appears, as has been stated earlier, that some proceedings were held of the nature contemplated by section 7 and the notices of demand were issued after orders had been duly made by the Tax Officer.
But this is a matter which was not examined in each case by the High Court and we would like to express no opinion with regard to it.
These appeals are also allowed and the orders of the High Court are set aside.
The High Court will rehear and redecide the same in accordance with law.
There will be no order as to costs in all.
the appeals.
K. B. N, Appeals allowed.
[/INST]Respondents 1 to 9 filed a suit against the Appellants and some of the other respondents for a declaration that they hid been carrying on, and were entitled to the worship without interference of the idol of Adeshwarji in the temple named after him at Paroli according to the tenets observed by the Digambri Sect of the Jain religion.
They further alleged : that the temple was constructed and the idol consecrated according to and by the followers of their sect; that in December, 1949, the defendants had attempted to convert the said idol into the idol of the Swetambri Sect by putting Chakshus (artificial eyes) thereon, but were prevented due to strong opposition of the followers of Digambri Sect.
It was claimed that although a temporary settlement was reached between the two sects while the rights in the temple were to be adjudicated upon by a Civil Court, the defendants had made arrangements to alter the temple according to their tenets and that they were intending to enclose the idol by doors and locks with the object of interfering with the free exercise of a Digambris ' right to worship the idol.
It was therefore prayed that the defendants be restrained by a permanent injunction from altering the nature and shape and appearance of the idol in any manner or from doing any act which would interfere with the right of worship of the followers of the Digambri Sect.
The defendants denied that the Digambri Sect had any right of worship of the idol or had ever exercised such a right and contended that the idol and the temple is in all respects a temple of the Jain Swetambri Sect.
The Trial Court decreed the suit and the District Judge in appeal as well as the High Court confirmed the decree.
The High Court also fixed three hours a day when the Digambris may use the temple for worship In appeal to this Court, it was contended inter alia on behalf of the appellant that the reliefs claimed made it clear that the dispute was not of a civil nature; and that the judgment of the Trial Court was wholly vitiated because the Trial Judge not having accepted the evidence produced before him, based his findings on his own inspection.
It was also contended that unless the ownership of the temple, was established or that the idol belonged to the Digambri Sect, no injunction could be given nor could the respondents be permitted to worship there; in the plaint the respondents had averred that the idol is a Digambri idol and as they had failed to prove this, their right to worship also failed.
HELD:Dismissing the appeal, (i)From the pleadings and the controversy between the parties it was clear that the issue was not one which was confined merely to rites and rituals but one which effected the rights of worship.
If the Digambries have a right to worship at the temple, the attempt of the Swetam 837 belies to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies from exercising their right to worship at the temple, with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code.
This position is well established.
[843 B] Sir Seth Hakam Chand & Ors.
vs Maharaj Bahadur Singh & Ors., 60 I.A. 313 and Nar Hari Sastri and Ors.
vs Shri Badrinath Temple Committee; , , referred to.
(ii)While, giving his findings the Trial Judge remarked that the evidence led by the Plaintiffs appeared to be correct.
These observations themselves show that the evidence on record was an element in the formulation of the Trial Court 's judgment buttressed by the observations of the learned Judge during the site inspection.
it was clear that the description given by the learned Judge of the idols in the Adeshwarji Temple and the Temple of the Swetemberies were observations made during an inspection at which both the Plaintiffs and Defendants Advocates were present and that there must have been notes also in respect of the inspection made on both the occasions.
There was therefore no validity in the contention that the finding of the Trial Judge was based entirely on the result of his inspection.
[844 G 845 C] (iii)The concurrent findings of the Courts below that the idol was Nirker ' (naked), that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies.
It was also clear that it was an ancient temple and that both the Digamberies and the Swetamberies worship the idol.
It was not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat, the Swetamberies would worship a Digamberi idol without these and hence the right to worship a Digamberi idol by both the sects is possible and it has been rightly so held by all the courts.
[846 E] Once the right of worship of Digamberies was established they would be entitled to the injunction sought for by them against the Appellants from preventing them from worshiping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple.
The directions of the High Court extending the time for worship by Digamberi Sect from one hour to three hours was not unreasonable.
[848 A B]
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<s>[INST] Summarize the judgement11 7 of 1958.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
R.K. Garg, M. K. Ramamurthi section C. Agarwala and D. P. Singh, for the petitioners.
The respondent did not appear.
306 1961 August 29.
The Judgment of the Court was delivered by S.K. DAs, J.
This is a writ petition oil behalf of the Bihar State Mukhtars ' Association, Patna and the Vice President and the General Secretary thereof.
The petition has been heard exparte as there, has been no appearance on behalf of the Chief Justice and Judges of the Patna High Court who were cited as respondents to the petition.
The petitioners contend that certain rules of the Patna High Court made as far back as 1922 under s.11 of the (Act XVIII of ' 1879), hereinafter referred to as the Act, in respect of the functions.
, powers and duties of Mukhtars practising in the subordinate courts are now invalid and void, because they contravene the fundamental right of the petitioners guaranteed under article 19(1)(g) of the Constitution of India and are not saved by cl.
(6) thereof.
The petitioners have, in particular, challenged the validity of r. 2 made by the said High Court under section 11 of the Act and incorporated in Chapter III, Part VII of the General Rules and Circular Orders of the High Court of Judicature at Patna (Civil), 1922.
The petitioners pray that an appropriate writ, direction or order be issued by this Court declaring that r. 2 aforesaid is unconstitutional and there fore, void and inoperative.
We shall presently read the rule ; but before we do so a few facts which are not in dispute may be stated.
The petitioners state that the Bihar State Mukhtars ' Association was formed some 30 years back with the object of generally protecting the interests of the Mukhtars in the State of Bihar practising in the courts subordinate to the High Court of Patna within the meaning of section 3 of the Act.
At its various annual conferences the said Association passed resolutions to move the high Court for the removal of the restriction imposed by r. 2 aforesaid on the right of Mukhtars practising in 307 subordinate civil courts.
The High Court did not remove the restriction.
On July 27, 1958 at an emergent Executive Committee meeting of the Association it was.
resolved to move ' the Supreme Court under article 32 of the Constitution.
The present writ petition has been filed in pursuance of that resolution.
The enrolment of Mukhtars is made under certain provisions of the Act to which a reference must now be made Under s.3 of the Act "a subordinate Court" means all courts subordinate to the High Court including courts of Small Causes established under Act IX of 1850 or Act XI of 1865.
"Legal practitioner" means an advocate, vakil or attorney of any High Court, a pleader, Mukhtar or revenue agent.
Section 6 of the Act empowers the High Court to make from time to time rules consistent with the Act in respect of certain matters including inter alia the qualifications, admission and certificates of proper persons to be Mukhtars of the subordinate courts.
It appears that by a rule made under section 6 of the Act, the High Court of Patna laid down that any person who shall produce a certificate from a committee constituted by the High Court that he has passed an examination in the subjects prescribed from time to time by the High Court for the mukhtarship examination may be admitted.
as a Mukhtar to practise in courts subordinate to the High Court.
Rule 10 laid down the subjects in which the examination was to be held.
This examination was known as the Mukhtarship examination.
It was abolished some time in the year 1947 48.
Under section 7 of the Act the High Court made certain rules for the grant of certificates to Mukhtars who had passed the necessary examination for admission as prescribed by the rules referred to above.
Section 7 also provided for annual renewal of such certificates.
The argument of learned advocate for the petitioners is rested.
mainly on the pro.
visions of section 9 and they must be quoted in full, 308 "Every mukhtar holding a certificate issued under section 7 may apply to be enrolled in any Civil or Criminal Court mentioned therein and situate within the same limits ; and, subject to such rules as the High Court may from time to time make in this behalf, the presiding Judge shall enroll him accordingly; and thereupon he may practise as a mukhtar in any such Civil Court and any Court subordinate thereto, and may (subject to the provisions of the Code of Criminal Procedure) appear, plead and act in any such Criminal Court and any Court subordinate thereto.
" Section 10 says in effect that except as provided by the Act or any other enactment t for the time being in force, no person shall practise as a Mukhtar in any Court unless he holds a certificate issued under s.7 and has been enrolled in such court or in some court to which it is subordinate.
Then come,% section 1 1 under which the impugned rule was made.
This section is in these terms.
"Notwithstanding anything contained in the Code of civil Procedure, the High Court may, from time time, make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtars practising in the subordinate courts and, in the case of a High Court not established by Royal Charter, in such Court.
" The High Court of Patna made a number of rules defining the functions, powers and duties of Mukhtars practising in the subordinate courts.
One of these rules is r. 2 which is 'in these terms.
"Rule 2: A Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature , and.
effect of his application or to offer any legal argument or to examine any witness without the leave of the Court specially given.
" 309 The argument of learned Advocate for the petitioners is 'this.
He has submitted that s.9 of the Act gives every Mukhtar holding a certificate issued under s.7 the right to apply to be enrolled in any Civil or Criminal Court subordinate to the High Court and on enrollment in accordance with the rules , he has the right to practise as a Mukhtar in any Civil Court and in 'Courts subordinate thereto and ' has further the right to appear, plead and act in any Criminal Court.
This right of practice learned Advocate for the petitioners has contended, cannot be curtailed and section 11 which empowers the High Court to Make rules declaring what shall be deemed to be the functions, powers and duties of the Mukhtars practising in the subordinate courts does not empower the High Court to make a rule which curtails the right given by s.9.
His argument further is that the impugned rule curtails the right of a Mukhtar to, practise in the Civil Courts inasmuch as it says, that a Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature and effect of his application or to offer any legal argument or to examine any witness without the leave of the court specially given.
He has contended firstly, that the rule is in excess; of the rulemaking power under section 11 and secondly, is An unreasonable restriction on the right guaranteed under article 19(1)(g) of the Constitution.
The simple question for decision really is this: is the impugned rule in excess of the powers given to the High Court under section 11 of the Act ? If the rule is intra vires the Act, then clearly enough there has been no violation of any, fundamental right of the petitioners.
The right of the petitioners to practise in the subordinate court a was create d by the act.
In the arguments before us there was no challenge to the constitutional validity of section 11 of the Act as permitting.
an unreasonable restriction of a guaranteed right, if on a proper construction that section enabled the High Court to regulate the right 310 of practice of Mukhtars.
The complaint before us was that the impugned r. 2 was not justified by section 11 of the Act.
Therefore, the only question which we need consider is whether the impugned rule is in excess of the authority given by section 11 of the Act.
It seems to us that the impugned rule is clearly within that authority.
The learned Advocate for the petitioners has.
sought to make a distinction between the right to practise as given by section 9 and the functions, powers and duties as mentioned in section 1 1.
Relying on the majority decision in Aswini ' Kumar Ghosh and another vs Arabinda Bose & another(1) he has submitted that the right to practise means the right to appear and plead as well as to act on, behalf of suitors in the subordinate courts; the power of the High Court to make rules under s.1 1 of the Act as respects the functions, powers and duties of Mukhtars practising in the subordinate courts merely means that the High Court may give effect to the right given under section 9 by making rules, but it cannot curtail that right ; when therefore the High Court made the impugned rule restricting the right of Mukhtars to plead in civil courts, it did something in excess of the power given by section 11.
We are unable to accept this line of argument as correct.
Sections 9 and 1 1 of the Act must be read together and it would be wrong to treat the right to practise given by section 9 as.
dissociated from the functions, powers and duties of Mukhtars referred to in section 1 1.
The learned Advocate for the petitioners is reading the two sections as though one section gives an absolute right and the other section merely empowers the making of rules to effectuate that right.
That, we do not think, is a proper reading of the two sections.
It is worthy of note that under section 9 itself a distinction is made between the right of a Mukhtar to practise in civil courts and his right to appear, plead and act in any criminal.
court.
In express terms section 9 gives every (1) ; 311 Mukhtar the right to appear, plead and act in any criminal court ; it does not, however, give such an unlimited right in a civil court.
On the contrary, it merely says that on enrolment a Mukhtar may practise in any civil court, but under section 11 the High Court may make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtars practising in the subordinate courts.
It is clear to us that in declaring what shall be the functions and powers of mukhtars practising in the subordinate courts, the High Court can so delimit them as to regulate the right of practice.
It will be wrong to treat the functions and powers as dissociated from the right to practise.
The right to practise 'Must depend on the functions and powers.
It is also worthy of note that the expression used in section 11 of the Act is much wider than the expression used in section 15 of the Indian Bar Council Act, 1926, (Act XXXVIII of 1926), which gives the Bar Council the power to make rules to provide for and regulate the rights and duties of Advocates of the High Court.
We do not think that the majority decision in Aswini Kumar Ghosh vs Arabinda Bose (1) is of any assistance to the petitioners.
That decision depended on the interpretation of section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951.
That section provided that "notwithstanding anything contained in the Bar Councils Act or any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court, every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of ' that High Court".
It was held by the majority that a rule made by a High Court which denied to an Advocate of the Supreme Court the right to exercise an essential part of his function, by insisting oil a, dual agency on the Original Side was much more than a rule (1) 312 of practice and constituted a serious invasion of his statutory right to practise and the power of making such a rule, unless expressly reserved, was repugnant to the right conferred by section 2 aforesaid The point to be noticed is that the majority held that unless the power was expressly reserved by the statute, a rule could not be made repugnant to the right conferred by section 2 of the.
Supreme Court Advocates (Practice in High Courts) Act, 1951.
If it be held that sections 9 and 1 1 of the Act must be read together and functions and powers mentioned in s.11 are not dissociated from the right to practise mentioned in a. 9, then it is clear enough that section 1 1 expressly reserves the power of the High Court to make rules declaring what shall be the functions, powers and duties of Mukhtars practising in the subordinate courts.
If this be the correct interpretation of sections 9 and 11 of the Act, then the principle laid down by the majority in Aswini Kumar Ghosh vs Arabinda Pose(,) is if no assistance to the petitioners in the present case.
For the reasons given above, we hold that r.2 of the rules made by the High Court under section 11 of the Act is not in excess of the rule making power and the petitioners cannot complain of any violation of their fundamental right to practise the profession to which they have been enrolled under the provisions of the Act.
The petition fails and is accordingly dismissed.
As there has been no appearance on behalf of the respondents, there will be no order for costs.
Petition dismissed.
[/INST]Mr. A, an Advocate on Record of this Court, wrote letters soliciting clients.
One of such letters, a post card was addressed to the Law Minister of Maharashtra and ended as follows, "You might have got an Advocate on Record in this Court but I would like to place my services at your disposal is you so wish and agree".
To the Registrar of this Court he admitted having written the post card, but before the Tribunal stoutly denied having done so.
The Tribunal found on evidence that the Advocate had written the post card.
When the matter came up before the court, the Advocate at first denied having written the post card but on being pressed by the court to make a true statement admitted that he had written the postcard and had admitted that before the Registrar.
^ Held, that it is against the etiquette of the Bar and its professional ethics to solicit briefs from clients and an Advocate who does so must be guilty of grossly unprofessional conduct.
There can be no doubt in the instant case that the Advocate concerned had written the post card soliciting briefs.
It makes no difference whether he did so in ignorance of this elementary rule of the profession or in disregard of it, since his conduct in court showed that he had no regard for truth and, consequently, he deserved no sympathy of the court and must be suspended.
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<s>[INST] Summarize the judgementAppeal No. 1041 of 1963.
Appeal by special leave from the judgment and order, dated September 2, 1963, of the Punjab High Court (Circuit Bench) at Delhi in L.P.A. No. 119 D of 1963.
S.T. Desai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
H.N. Sanyal, Solicitor General of India and B. P. Maheshwari, for the respondent.
183 January 9, 1964.
The Judgment of the Court was delivered by HIDAYATULLAH J.
This is an appeal by special leave against the order of the High Court, Punjab, dated August 14, 1963, by which an order of the Rent Controller under section 15(1) of the Delhi Rent Control Act, 1958, directing the appellant to deposit back rents at Rs. 300 per month from 1st July, 1957, was confirmed.
The High Court granted the appellant one month 's time from the date of its own order, as the original time had already run out.
The appellant is an advocate, who is practising at Delhi.
He is occupying No. 43, Prithvi Raj Road, New Delhi as a tenant, and his landlord Seth Kirori Mal Luhariwala is the respondent in this appeal.
The tenancy commenced on July 28, 1957, and the memorandum of tenancy, dated July 1, 1957, produced in the case, shows that the premises were taken on a monthly tent of Rs. 300.
The memorandum also contains other terms which need not be mentioned here, because they are not relevant to the present appeal.
It appears that Seth Kirori Mal was in arrears in payment of his income tax, and a sum of Rs. 39,00,000 was outstanding from him.
On October 31, 1957, the Income tax Officer Central Circle, New Delhi, to whom all cases of Seth Kirori Mal were transferred, issued a notice to the appellant under section 46(5A) of the Indian Income fax Act directing him to deposit with the Income tax Officer all sums due by way of rent as also future rents.
The appellant sent no reply to this notice.
He had, however,on September 29, 1957, addressed a letter to the respondent Seth Kirori Mal.
The reply of Kirori Mal, dated October 15, 1957, figured in the arguments a great deal, and as it is brief, it may be quoted here: "From TO Dated Faigarh, the 15th October, 1957, 184 Dear Sir, With reference to letter No. M 17 58, dated 29th September, 1957, 1 am to write that you may please adjust six months rent of 43, Prithviraj Road, New Delhi, i.e., Rs. 1800 (rent from 1 10 57 to 31 3 1958) towards your professional fee in part payment thereof.
The balance of your fee will be paid later at the time of final settlement.
Yours faithfully, (Sd.) Paluram Dhanania, For Kirorimal Luhariwala.
Kirori Mal also sent a receipt, dated October 16, 1957, or the amount, and is item 23 in the record.
Kirori Mal had litigation in Calcutta.
He had brought a suit against four defendants, claiming the present property as his "absolute" and "exclusive self acquired property".
The case was pending in the High Court and on May 1, 1.958, an order was made appointing one Chakravarti as a Receiver of the properties including No. 43, Prithvi Raj Road.
Chakravarti also sent a notice on July 8, 1958, to the appellant demanding rent already due and also as and when due.
To this notice, the appellant sent a reply on July 19, 1958.
He referred to the payment of rent by adjustment towards fees for the period 1st October, 1957 to 31st March, 1958, which was the subject of the letter above.
He stated that as regards rent after 1st April, 1958, he had no objection to pay the amount to the Receiver or any other claimant but regretted that it was not possible for him to make the payment because of the notice served upon him by the Income tax Officer.
He asked the Receiver to get the notice withdrawn, and stated that he would be glad to remit the amount of rent to him when that was done.
He also raised the question of certain other expenses which he had incurred in connection with the house which he claimed he was entitled to deduct from the rent and informed that a few repairs were, required in the house.
A second letter was sent by the Official Receiver on September 5. 1959, making another demand.
In his reply, dated September 14, 1959, to this letter, the appellant raised the 185 question that a sum of Rs. 23,500 was payable to him for _professional services rendered by him to Seth Kirori Mal.
He stated: "You will therefore appreciate that I am entitled to adjust the rent payable against the fees due to me and the amount due to me will absorb the rent for a little over six years.
Even before this Seth Kirori Mal had paid me a sum of Rs. 1800 by way of adjustment of rent towards my professional fees due.
You will, therefore, kindly agree that the rent payable is adjustable against the professional fee due to me.
" With this letter, he enclosed a copy of a statement of fees amounting to Rs. 23,500 which he had submitted to his ,client on February 4, 1959.
The Official Receiver then in formed the appellant that the party concerned had denied the claim for fees as absolutely false, and observed in his letter that the professional fees should be the subject of some other proceeding but the rent should be paid with,out delay.
He enquired if the amount of rent had been paid 'to the Income tax department in response to the notice.
In his reply to this letter, on July 5, 1960, the appellant for the first time stated that there was an agreement between him and Seth Kirori Mal to adjust the rent towards his professional fees until the fees were fully paid.
He offered to reduce the fees if Seth Kirori Mal had any objection, but stated that till the professional fees were recouped, no rent could be considered to be due from him.
On November 25, 1960, Seth Kirori Mal applied to the High Court at Calcutta for directions to the Official Receiver to take appropriate proceedings to realise the arrears of rent from the appellant, and on December 19, 1960, the High Court appointed Seth Kirori Mal receiver in the case.
Seth Kirori Mal then served a notice on December 23, 1960, on the appellant to pay the arrears of rent.
To this notice, the appellant sent a detailed reply which, in substance, has been his defence in the proceedings before the Rent Controller, from which the present appeal has arisen.
186 On January 4, 1961, Seth Kirori Mal made an application under section 14 of the Delhi Rent Control Act before the Rent Controller, Delhi.
In his written statement in reply to that application, the appellant pleaded that Seth Kirori Mal had no right to recover rent from him, inasmuch as a. notice under section 46(5A) of the Indian Income tax Act had.
been issued by the Income tax Officer, Central Circle V, New Delhi.
He pleaded that the property was in the custody of the Court, and that inasmuch as a receiver had been appointed, Kirori Mal had no locus stands to maintain the petition denying at the same time that Kirori Mal had informed him that he had been appointed a receiver of the property.
The appellant also contended that under the Rent Control Act, a receiver had no right to act on behalf of the landlord.
He referred to the alleged agreement by which fees were, to be recouped from rent as and when it fell due, pointing out that on an earlier occasion a sum of Rs. 1800 was allowed to be adjusted towards fees.
Some other please were raised, but it is not necessary to refer to them because they were not raised before us.
The notice to quit which the appellant alleged was not issued to him was filed in the Court of the Controller on May 17, 1961.
The appellant was ordered to inspect it and to be ready for his statement as to the correctness of the notice.
On the next date, a statement of the appellant was recorded and he denied the notice and also its receipt.
The case was then set down for arguments and after hearing the arguments, the Rent Controller passed his order on July 22, 1961.
The Rent Controller held that there was no proof on the file to show that the respondent had any right to make an adjustment of the rent against his professional dues.
He held that the rent was not paid after March 31.
With regard to the plea that a notice under section 46(5A) of the Income tax Act, 1922, had been issued.
the Rent Controller observed that the amount, if deposited in his court, would not be paid to Kirori Mal unless he produced a clearance certificate from the Income tax Department.
The Rent Controller also said that if in the enquiry to be subsequently made, the tenant proved that the amount of fees had to be recouped from rent.
the amount would not be paid to Kirori Mal. 187 Against the decision of the Rent Controller, the appellant filed an appeal before the Rent Control Tribunal.
The Rent Control Tribunal affirmed the decision of the Controller, observing that the plea taken by him that his professional fees were to come out of rent was an after thought and there was no evidence to prove that there was such an agreement between the parties.
On other matters, the Tribunal expressed its agreement with the Rent Controller.
The appellant then appealed to the High Court of Punjab.
The High Court upheld the orders so far made and pointed out that in the letter dated July 19, 1958, to the Receiver, the appellant had not mentioned the agreement.
The High Court hi ,Id that the order made under section 15(1) of the Act was proper, because it was an admitted fact that rent had not been paid to anybody from April 1, 1958.
The High Court endorsed the view of the Tribunals below that the notice of the Income tax Officer did not come in the way of making the deposit of the rent in the office of the Rent Controller, because the amount was not to be paid to anyone till the Rent Controller had decided who was entitled to receive it.
The appeal was therefore dismissed.
In this court, emphasis is laid upon the letter of October 15, 1957, by Kirori Mal in which there was an adjustment of Rs. 1800 towards fees.
It was contended that there was an oral agreement to use the rent to pay the professional fees.
The letter itself does not show that there was any such agreement.
In fact it shows the contrary where it says: "The balance of your fees will be paid later at the time of final settlement.
" This shows that the appellant was not entitled to retain the rent in his hands, and the Tribunals below were justified in saying that the plea about the so called agreement was an after thought, because till September 14, 1959, the appel lant had not mentioned such an agreement.
We are also satisfied that the plea was a mere device to retain the money and to avoid paying the rent.
It must be remembered that there were as many as four claimants, viz., the Income tax Officer, the Receiver and Kirori Mal in person and Kirori 188 Mal as Receiver, but the appellant avoided each of these in turn by pointing to the others, and in this way continued to occupy the premises without payment of any rent.
It was contended however as a matter of law that a proper opportunity ought to have been given to the appellant to prove his plea by leading evidence before ordering that the rent be deposited.
Mr. section T. Desai contended that under section 15(1) of the Delhi Rent Control Act, an order for deposit of arrears of rent can only be made after the tenant has been given an opportunity of being heard, because if the tenant makes a payment or deposit as required of him, the landlord is entitled to take the amount of the deposit and the Controller can award such costs as he may deem fit to the landlord and the case comes to an end.
By way of contrast, he pointed out that the case proceeds if the tenant fails to make the payment or deposit as required of him.
In other words, it was contended that an order under section 15(1) for deposit of rent should only be made at the end of the case and not at an interlocutory stage.
Mr. Desai contended that the present order was made at an interlocutory stage and it was wrong, because if the tenant deposited the money, there would be no further hearing and his plea that there was an agreement between the parties that the rent as and when it fell due should be set off against the professional fees, would remain untried.
In our opinion, this reading is not permissible.
Section 15 (omitting such parts as are unnecessary for the present purpose) reads as follows: Section 15.
(1) In every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to subsection (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, the an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the ten 189 ant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to conti nue to pay or deposit month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate.
(3) If, in any proceeding referred to in subsection (1) or sub section 2), there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub section (1) or subsection (2), as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within next month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf.
(6) If a tenant makes payment or deposit as required by sub section (1) or sub section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant but the Controller may allow such costs as he may deem fit to the.
landlord.
(7) If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.
" It will be noticed that sub section (3) also contemplates 190 payment of interim rent determined by the Controller before the entire dispute is settled.
Sub section (6) puts the case under sub section
(1) and sub section
(3) on the same footing and makes no distinction between them.
It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried.
It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end.
The latter part of sub section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month.
This also shows that the order under sub section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid.
For the purpose of an interim order it was not necessary that there should have been a full trial.
The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made.
He came to the conclusion that the rent was not paid and the plea that it was being withheld under an agreement was an afterthought and not true.
The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears to us to be sound.
Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard.
No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunity hereafter.
At the moment, he is being asked to deposit the arrears in court, which admittedly are outstanding.
Mr. Desai next contended that the notice under section 46(5A) amounted to a garnishee order and the appellant could not, while the notice stood, make any payment without incurring personal liability.
There was no question of a personal liability because the Rent Controller had stated in his order that the amount would not be paid to anyone till the clearance certificate was obtained from the Income tax Department.
The Rent Controller had informed the income tax authorities and the appellant ran no risk in depositing the arrears of rent in the circumstances.
191 It was contended that the notice under section 46(5A) amounted to an attachment of the rent in the hands of the appellant and reference was made to the provisions of section 46 sub section
5A para 5.
The argument overlooks the next para which provides: "Where a person to whom a notice under this subsection is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income tax Officer.
" If there was an agreement between the parties and Kirori Mal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income tax ,Officer.
The appellant did nothing in the matter except to deny the payment to everyone.
He paid nothing to the Income tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord.
In other words, be was trying to take full advantage of the law, when lie could have informed the Income tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income tax Department.
Reference was made in this connection to a decision of the Calcutta High Court reported in Nalinakhya Bysack and another vs Shyam Sunder Halder and others(1) in which Harries C. J. observed that before making an ,order for the deposit of the rent, a full enquiry should be made.
That was a case in which the tenant had pleaded that there was an agreement between him and the landlord that any amount spent on repairs would be set off against the rent.
Harries C.J. held that without ascertaining the (1) A.I.R, (1952) Cal.
192 truth of the plea that a large sum had been, spent on repairs, an order to deposit the entire arrears of rent ought not to have been made.
It is quite clear that the facts there were entirely different.
Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancycould not be calculated without advertence to every term of the agreement of tenancy.
Here the special agreement which is pleaded is outside the tenancy agreement and the allegation about the special agreement has been held to bean after thought and false.
It is therefore difficult to apply the ruling to the present circumstances.
The appeal is wholly devoid of merit and it is dismissed with costs.
By the consent of parties, a period of two months from the date of hearing (20 12 1963) was granted to the appellant to deposit the arrears of rent from 1st.
April, 1958, in the Court of the Rent Controller.
[/INST]The respondent made an application against the appellant under section 14 of the Delhi Rent Control Act.
In reply the appellant pleaded 182 that the respondent had no right to recover rent from him as a notice under section 46(5A) of the Indian Income tax Act had been issued by the Income tax Officer, that the respondent had no locus standi as the property was in the custody of the Court and a receiver had been appointed and that his professional fees were agreed and be adjusted towards the rent dues.
The Rent Controller recorded the statement of the appellant and after hearing arguments directed the appellant under section 15(1) of the Delhi Rent Control Act, 1958 to deposit back rents at Rs. 300/ per month.
On appeal the decision of the Rent Controller was affirmed, and a further appeal to the High Court also failed.
The appellant contended that the order under section 15(1) for deposit of rent could only be made at the end of the case and not at an interlocutory stage.
Held:(i) that the order under sub section
(1) of section 15 is not a final order but is preliminary to the trial of the case and is made only wherer the rent has in fact not been paid.
For the purpose of an interim order it was not necessary that there should have been a fun trial and, that this was clear from the latter part of sub section
(1) of section 15 because under it not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month.
Nalinakhya Bysack and Anr.
vs Shyam Sunder Halder, A.I.R. , distinguished.
(ii)The notice under section 46(5A) of the Income tax Act did not amount to a garnishee order and the appellant could make payment to the rent controller without incurring personal liability because the rent controller had stated in his order that the amount would not be paid to any one till a clearance certificate was obtained from the Income tax Department.
</s>
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<s>[INST] Summarize the judgementCivil Appeal No. 6626 of 1983.
From the Judgment and order dated 18.5.1983 of the Allahabad High Court in C.M.W.P. No. 13741 of 1982.
H 620 S.N. Kacker and R.B. Mehrotra for the Appellant.
B.D. Agarwala and Miss Asha Rani for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by the tenant against an order upholding the order of eviction.
The ground of eviction was on the landlord 's bona fide need and requirement.
The appeal arises out of the judgment and order of the High Court of Allahabad dated 18th of May, 1983 and also against the order dated 23rd of May, 1983 dismissing a review application by the said High Court.
Shri P.K. Mukerjee, respondent No. 1 herein had filed an application under section 3 of the U.P. Act No. 3 of 1947 (Temporary Control of Rent and Eviction Act), hereinafter referred to as the old Act, seeking permission to file the suit for eviction of the tenant, the father of the appellant herein, on the ground that accommodation in dispute was bona fide required by the landlord for his personal need.
In September, 1971 the Rent Control and Eviction officer rejected the application of the landlord and held that his requirement was not bona fide.
On 12th of November, 1971 the Commissioner allowed the revision filed by respondent No. 1 against the order of the Rent Control and Eviction officer dated 5th of September, 1971.
It may be mentioned that on 15th of July, 1972 the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to as the new Act came into effect.
On 2nd of August, 1972 the State Government rejected the representation of the tenant namely, the father of the appellant filed under section 7 of the old Act against the order of the Commissioner dated 2nd of November, 1971.
On or about 7th of February, 1975 the learned Single Judge of the High Court of Allahabad allowed the writ petition of the tenant and set aside the orders of the Commissioner and the State Government hereinbefore mentioned.
On 3rd of August, 1978 a Division Bench of the High Court of Allahabad allowed the appeal of respondent No. 1 and set aside the judgment of the learned Single Judge of the High Court dated 7th of February, 1975 and upheld the orders of the Commissioner and the State Government allowing the eviction of the tenant.
In September, 1978 respondent No. 1 moved an application under section 21 read with section 43(2)(rr) of the new Act.
Thereafter it is alleged that respondent No. 1 had executed an agreement to sell the disputed premises in favour of the appellant 's wife namely, Smt.
Madhu Soni.
It is material to refer to the said agreement in brief.
The agreement is dated as mentioned hereinbefore 7th of November, 1978 621 and was entered into between Shri P.K. Mukerjee, the landlord and Smt.
Madhu Soni wife of Shri D.K. Soni (son of Shri Harbans Lal Soni) the then tenant.
It was stated that the landlord had filed an application against Shri H.L. Soni the father in law of vendee for permission to file a suit for eviction against him on account of his personal need for the aforesaid premises and permission had been granted.
It also recited that a portion of the said land which was demarcated in the site plan measuring about 121 ' x 101.5 ' of the vendor which would be for the construction of a house would be in exclusive possession of the vendor and the rest of the property at 8, Panna Lal Road, Allahabad being the disputed premises would be sold to Smt.
It also recited that the vendee or his family members would have no right of whatsoever nature and the vendee, that is to say, the appellant had given up his tenancy right in respect of the same, that is to say, the portion to be kept with the vendor and the premises will be built on the vacant land with the money that would be obtained by selling the property to Smt.
Madhu Soni.
The property was sold for Rs. 1,00,000 out of which Rs.5,000 was paid as earnest money and it was stipulated that the rest of the money would be paid at the time of the registration.
It was further agreed that the parties would move the proper authorities as early as possible for permission to transfer and the sale deed would be executed within one month of the grant of the permission and notice to the vendee.
It was further stated that if the vendee failed to get the sale deed executed after one month from the date of permission and notice to the vendee by the vendor, the earnest money of Rs.5,000 would be forfeited and the right of the vendor would be as it subsisted prior to the agreement.
It was further provided that in the event of non execution of the sale deed on account of any act or failure on the part of the vendee in pursuance of the agreement to sell, the property would stand released in favour of the vendor and the earnest money of Rs.5,000 would be forfeited.
It was clearly stipulated that the need of the vendor for the premises still subsisted and this agreement was being entered into since it would be possible for the vendor to construct a house for himself on the land not agreed to be transferred measuring 121 ' x 101.5 ' .
On that basis the parties had signed agreement on 7th November, 1978.
On 12th of December, 1978 the father of the present appellant Shri H.L. Soni who was the original tenant died leaving behind his widow and two sons including the appellant and one daughter.
It was alleged that on 18th of December, 1978 respondent No. l sent a letter of condolence to the appellant on the death of appellant 's father.
On 622 22nd of December, 1978 appellant informed the Prescribed Authority before whom the application under section 2 1(1)(a) of the new Act red with section 43(2)(rr) was pending about the death of Shri H.L Soni.
On 23rd of March, 1979 respondent No. 1 moved an application for substitution in Case No. 53 of 1978 for bringing on record the heirs of deceased Shri H.L. Soni along with application under section 5 of the Limitation Act.
On 10th of November, 1979, the Prescribed Authority rejected the petitioners application for substitution and held that respondent No. 1 had full knowledge of the death of Shri H.L. Soni and he did not move the application within time.
On 11th of December, 1979 respondent No. 1 moved a second application under section 2 1(1)(a) read with section 43(2)(rr) of the new Act on the same ground on which the first application was moved.
The second application was registered as Case No. 68 of 1979.
It is alleged further that on 12th of March, 1981 respondent No. 1 executed two separate agreements to sell the property in dispute in favour of R.P. Kanodia and P.K. Kanodia respectively.
The Prescribed Authority on 7th of July, 198 1 held that the second application under section 2 1(1)(a) read with section 43(2)(rr) of the new Act being Case No. 68 of 1979 was within time and directed the tenant to be evicted from the premises in dispute.
The Additional District Judge, Allahabad on 25th of October, 1982 dismissed the appeal of the tenant filed against the order of the Prescribed Authority dated 7th of July, 1981.
On 11th of March, 1983 the appellant 's wife Smt.
Madhu Soni filed a suit for injunction restraining Respondent No. 1 from dispossessing her from the premises in dispute on the strength of registered agreement and she asserted that she resided in the accommodation as a result of part performance under section 53A of the .
Initially injunction was granted ex parte by the Trial Court and thereafter it was vacated after hearing respondent No. 1.
Aggrieved thereby an appeal } was filed by Smt.
Madhu Soni in which the High Court had stayed dispossession.
The High Court thereafter dismissed the writ petition of the tenant against the orders of the Prescribed Authority for eviction and the order of the Additional District Judge.
A review petition was filed by the appellant and the same was dismissed.
This appeal by special leave is against that decision of the High Court dated 18th of May, 1983 Behind this long tale of dates the questions involved in this appeal are short, namely, firstly in view of the provisions of section 43(2)(rr) was the High Court right, in the facts and circumstances of the case specially the death of original tenant being alleged, and in view of the fact that the execution of the order passed for eviction had 623 become final before coming into operation of the new Act the order was proper and secondly, how far the subsequent events, namely, the A agreement with the wife of one of the sons of the original tenant to purchase property as well as the agreement with the Kanodias mentioned hereinbefore demolish or destroy the case of a bona fide need of the landlord.
In other words are these not sufficient subsequent events which destroy the landlord 's bona fide need and as such should be taken note of by the appropriate courts in ordering eviction.
In this appeal, therefore, we have to keep in mind two aspects of law namely, the finality of the decisions and secondly, how far and to what extent subsequent events should be taken note of in order to do justice between the parties.
Before we refer to the judgment of the High Court and the submissions made before us, it is necessary for us to bear in mind certain decisions of this Court on these aspects on which reliance was placed.
This Court in Pasupuleti Venkateswarlu vs The Motor & General Traders, ; dealing with the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, dealt with the question as to how far the subsequent events can be taken note of.
This Court held that for making the right or remedy, claimed by a party justly and meaningfully as also legally and factually in accordance with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
In the facts of that case, this Court said that the High Court was right in taking into consideration the facts which came into being subsequent to the commencement of the proceedings.
Therefore the fact that in determining what justice required the Court was bound to consider any change, either in fact or in law, which had supervened since the judgment was given.
F This general principle and proposition of law was of ancient vintage.
See the observations of the U.S. Supreme Court in Pattersion vs State of Alabama, ; at page 607).
The actual facts, however, of this case were entirely different, and so it was not necessary to refer to those facts.
In Ramji Dayawala & Sons (P) Ltd. vs Invest Import, ; , this principle was again reiterated entirely under different context.
This Court also reiterated the same principle in Hasmat Rai and another vs Raghunath Prasad; , where referring to Pasupuleti Venkateswarlu vs The Motor and General Traders (supra), this Court held that when an action was brought by the landlord under Rent Restriction Act for eviction on the H 624 ground of personal requirement, his need must not only be shown to A exist at the date of the suit, but must exist on the date of appellate decree, or the date when a higher court dealt with the matter.
It was emphasised by this Court that if during the progress and passage of proceeding from court to court subsequent events had occurred which if noticed would non suit the plaintiff, the court had to examine and evaluate the same and mould the decree accordingly.
The tenant was entitled to show that the need or requirement no more existed by pointing out such subsequent events, to the court including the appellate court.
Otherwise the landlord would derive an unfair advantage, and it would be against the spirit or intendment of Rent Restriction Act which was enacted to fetter the unfettered right of re entry.
In such a situation, it was reiterated that, it would be incorrect to say that as the decree or order for eviction was passed against the tenant he could not invite the court to take into consideration subsequent events.
But the tenant could be precluded from so contending when decree or order for eviction had become final.
(Emphasis supplied see the observations of Desai, J. at page 617(G.H) of the report).
In Syed Asadullah Kazmi vs The Addl.
District Judge, Allahabad and others; , , this Court was concerned with a residence at Allahabad.
It was held by this Court that the order dated 25th March, 1977 of the appellate authority releasing a portion of the premises in favour of the third respondent therein and leaving the remaining portion in the tenancy of the appellant therein acquired finality when the proceedings taken against it by the appellant had failed.
The Prescribed Authority was bound to give effect to that final order and was not acting outside its jurisdiction or contrary to law where he ordered eviction.
This Court reiterated that it was true that subsequent events had to be taken into account by a statutory authority or court when considering proceeding arising out of a landlord 's petition for ejectment of a tenant on the ground of the landlord 's personal need.
But in that case the order for release of a portion of the accommodation had acquired finality before the death of the landlord and the controversy concluded by it could not be reopened thereafter.
This Court further reiterated that inasmuch as the question which arose before the Prescribed Authority on the application of the appellant after the proceedings for release had acquired finality, it was not open even for this Court to reopen the proceeding for release.
Not quite relevant to the present controversy, there is, however, just an observation in Sher Singh & Ors.
vs The State of Punjab; , It was a decision dealing with Article 21 of the Constitution.
There is an observation that traditionally, subsequent events had to be taken into account in the area of civil law.
It is necessary, however, to refer to a 625 decision of the special bench of the Allahabad high Court in Bansilal Sahu vs The Prescribed Authority and another, [ 19801 ALL.
L.J. 331 which arose under the new Act.
It was held therein that the question whether the eviction of the tenant had to be ordered from any specified part of the building under tenancy was not within the jurisdiction of the Prescribed Authority, while acting under clause (rr) of section 43(2), irrespective of the occurrence of subsequent events which might make it improper to order the eviction from the entire building or which might tend to establish that the need set up by the landlord could be satisfied by ordering eviction of the tenant from a specified part of the building under tenancy.
It was held that subsequent events or facts could not be considered so as to defeat the final order and the Prescribed Authority was bound to order eviction.
The Special Bench of the Allahabad High Court overruled another Bench decision of the Allahabad High Court in the case of Smt.
Sarju Devi vs Prescribed Authority, Kanpur, [19771 All.
L.J. 251 and accepted the proposition laid down in Tara Chand Khandelwal vs Prescribed Authority, Agra, [1976] All L.J. 708.
Satish Chandra, C.J. speaking for the Allahabad High Court observed that the opening clause of this provision entitled the Prescribed Authority to find out whether permission under section 3 of the old Act had been obtained on any ground specified in subsection (1) or sub section (2) of section 21 of the present Act and that the same had become final.
It was, therefore, according to the Chief Justice, the beginning as well as the end of his jurisdiction to record findings.
If the conclusion was in the affirmative the Prescribed Authority had no discretion but to order the eviction of the tenant from the building under tenancy.
It was further held that the jurisdiction of the Prescribed Authority was to order the eviction of the tenant from the building under tenancy.
It had not expressly been conferred any power to order eviction from a portion or part of the building under tenancy.
It was further held that the jurisdiction of the Prescribed Authority while deciding an application under section 2 1 of the present Act could not be equated with the jurisdiction which had been conferred for giving effect to the permission granted under section 3 of the old Act.
The two situations were different.
Clause (rr) of section 43(2) of the present Act specifically prohibited the Prescribed Authority from satisfying itself afresh that the grounds existed.
We are of the opinion that this is the correct state of law and if that is the position the so called subsequent events are not germane to the question to be decided by the High Court.
In the aforesaid light, in our opinion, in the facts of this case the High Court was right.
626 It may be mentioned that clause (rr) of section 43(2) of the new Act provides as follows: "where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub section (1) or sub section (2) of section 21 and has become final, either before the commencement of this Act or in accordance with the provisions of this sub section after the commencement of this Act (whether or not a suit for the eviction of the tenant has been instituted), the landlord may apply to the prescribed authority for his eviction under section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under section 22: Provided that no application under this clause shall be maintainable on the basis of a permission granted under section 3 of the old Act, where such permission became final more than three years before the commencement of this Act: Provided further that in computing the period of three years, the time during which the applicant has been prosecuting with due diligence any civil proceeding whether in a court of first instance or appeal or revision shall be excluded" All these aspects were considered by the High Court.
We recognise that unless the statute expressly prohibits as it did in the instant case, by the aforesaid clause, cautious recognition of subsequent events to mould the relief should be taken note of.
In the instant case in substance the need was there of the landlord for his occupation of his own premises.
The landlord was a Government servant and wanted to reside in Allahabad and for this purpose he sought eviction and had obtained an order of eviction prior to coming into operation of the new Act.
The hope of the landlord to come back to his origin was not defeated by the provisions of the new Act.
In vain he moved from court to court and in the meantime there has been escalation of prices and restrictions on alienation of land and in order to save himself from this situation the landlord tried to sell part of the premises in question 627 subsequent to the decree to the wife of one of the sons of the tenant.
This is not material.
The agreement in question further stipulated that the present need of the landlord subsisted, and out of this agreement only Rs.5,000 was advanced in 1978 and nothing was paid thereafter.
The agreement for sale to Smt.
Madhu Soni reads as follows: "That it is made clear that the need of the vendor for the premises still subsists and this agreement is being entered into since it will be possible for the vendor to construct a house for himself on the land not agreed to be transferred measuring 121 ' x 101.5 '.
The parties, therefore, have signed this Deed on the 7th day of November, 1978 In view of the subsequent events, namely, non permission of the Urban Ceiling Authorities, failure to register and execute the document, delay for permission on the part of the vendee and the escalation of prices, that is to say, if in 1979 perhaps it was possible to build some kind of accommodation with the amount of sale price to be obtained from the execution of the document which it is not possible in 1987 and further there is no readiness or willingness on the part of the vendee to execute the document, after the existence of the basic need of the landlord, for which originally the proceedings were taken and finalised, we do not find it possible to hold that subsequent events have so materially altered as to defeat the original order for possession passed in favour of the respondents.
We do not find perusing the records that there was any failure for substitution on the part of the landlord to take steps.
The other son of the deceased was not residing with the deceased in the premises in question, therefore, there was no need to substitute him.
The other agreements to which reference had been made was the alleged agreement with R.P. Kanodia and P.K. Kanodia respectively.
Nothing was proved before us that agreement is valid today or given effect to in view of the provisions of the Land Ceiling Act.
It may be mentioned that the Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 by the order dated 20th of April, 1979 refused permission to sell in favour of Smt.
Madhu Soni.
On 7th November, 1978 the wife of the appellant and the landlord had entered into an agreement to sell a portion of the land as well as the house in dispute to the appellant 's wife, and for that purpose a sum of 628 Rs.5,000 had been paid as earnest money as mentioned hereinbefore, A and in the agreement, it was clearly stated that the parties would move the proper authorities as early as possible for permission to transfer the property and the sale deed would be executed within one month of the grant of such permission and notice to the vendee.
Clause 6 of the agreement further stipulated that if the vendee failed to get the agreement executed after one month from the date of permission and notice to the vendee the earnest money of Rs.5,000 would be forfeited and the right of the vendor will be as it subsisted prior to the agreement.
The requisite permission in terms of the agreement was obtained by the landlord in the year 1979 and a registered notice consequently was also sent to the appellant 's wife requiring her to get the sale deed executed in accordance with the agreement.
Thereafter a reply dated 2 1st September, 1979 was also received by the landlord.
However, the appellant 's wife failed to get the sale deed executed and consequently the agreement itself became infructuous and the earnest money stood forefeited.
The need as it has been reiterated in the agreement of the landlord for his own purpose still subsisted.
There was no delay in bringing the heirs of the deceased tenant on record.
In the aforesaid view of the matter there was no substance in the objection filed against the execution of the order of eviction in terms of clause (rr) of section 43(2) of the new Act.
In any event such events were frivolous after the order had become final.
The subsequent events which we have examined do not in any way effect the decision of need for possession of the premises in question of the respondent landlord.
It may be mentioned that there was an application by the respondent for the review.
This was heard and no order was made on that application.
It was reiterated in the counter affidavit filed by the respondent that since 1st of December, 1978 till todate the appellant had not paid any money to the landlord nor deposited the damages in the court.
At the time of his death late H.L. Soni was residing in the house in dispute with his eldest son Shri D.K. Soni, the appellant, his wife, Smt.
Madhu Soni and Mrs. Kailash Soni, the widow.
Other son Shri A.K. Soni and daughter Mrs. Kangan Khanna were not residing with Late Shri H.L. Soni at the time of his death and as such they were not heirs as contemplated by section 3(g) of the new Act.
The landlord was a Government servant and was posted at Lucknow and as such during his tenure he had to reside at Lucknow but after his retirement he wanted to settle down at his ancestral house at Allahabad and it was for this reason that the proceedings for eviction were taken.
629 It was not proved to the satisfaction of the authorities below that any agreement to sell the premises to Kanodias has been given effect to and had been acted upon or can be acted upon.
It that view of the matter the need indubitably succeeds and even if the allegations made are taken into consideration do not merit any revision of the order which had become final.
Finality of the judicial decisions is one of the essential ingredients upon which the administration of justice must rest.
In that view of the matter we are of the opinion, even if the contentions advanced on behalf of the respondents are taken into consideration and a new look is taken because of the subsequent events, which in our opinion cannot be done in view of the specific prohibition in clause (rr) of section 43(2) of the new Act, the appellant hac no case.
In the aforesaid view of the matter we are of the opinion that the High Court was right in not interfering with the order of the Prescribed Authority.
After all finality of the decisions of the authorities under the Act has to be given due reverence and place in the judicial administration.
Taking cautious note of the relevant subsequent events, we find no merit in the appellant 's contentions inasmuch as there is nothing on record to show that the landlord 's bona fide need for his residence in Allahabad has been met or can be met in the state of affairs except by the order which is impugned in this appeal.
In the premises, the appeal must fail and is accordingly dismissed without any order as to costs.
Since, however, the appellant has been staying in the disputed premises for quite some time, we grant time till 30th of April, 1988 to deliver vacant possession of the premises subject to filing usual undertaking within four weeks from today.
In default in filing undertaking the order would become executable forthwith.
S.L. Appeal dismissed.
[/INST]% Sub section (2) of section 9 of the makes the assessment procedure prescribed under the general sales tax law of the appropriate State applicable to the assessment to be made under the Central Act.
Section 13 of the Andhra Pradesh General Sales Tax Act, 1957 requires the dealer to submit returns in such manner, within such period and to such authority as may be prescribed.
Sub section (1) of section 14 permits the assessing authority to assess the amount of tax due on the returns submitted under section 13 only within a period of four years from the expiry of the year to which the assessment relates.
Sub section (3) permits the assessing authority to make best judgment assessment where a dealer (i) fails to submit return before the date prescribed; (ii) produces the accounts registers and other documents after inspection and (iii) submits a return subsequent to the date of inspection, within a period of six years from the expiry of the year to which the assessment relates.
In the main appeal before this Court the assessee respondent filed its return relating to the quarter ending 31st March, 1969 on 7th August, 1969 under the .
The last date prescribed by law was 24th May, 1969.
The Commercial Tax officer passed the assessment order on 3rd August, 1973, beyond four years from 31st March, 1969, the last day of the assessment year 1968 69.
The assessee 's appeals against that order were dismissed by the Assistant Commissioner and the Sales Tax Appellate Tribunal.
The High Court in revision, however, held that the assessment made after four years from the last day of the assessment year was not a valid assessment.
737 In the connected appeal the respondent who was the assessee filed the annual return in respect of the assessment year 1968 69 under the A provisions of the Central Act on 19th August, 1969 after the expiry of the prescribed date.
The order of assessment was passed on 2nd August, 1973 beyond four years from the last day of the assessment year 196869.
An appeal against that order was dismissed by the Assistant Commissioner.
The Sales Tax Appellate Tribunal, however, allowed the appeal holding that the assessment had been passed beyond four years from the last day of the assessment year.
The revision petition preferred by the State was dismissed in limine by the High Court.
In the appeals by special leave filed by the State, it was contended for the respondent that since the returns in the cases had been accepted, even though they had filed been beyond the prescribed date, the assessments made thereon could not be considered as best judgment assessments and, therefore, sub section (3) of section 14 of the Act under which it is permissible to make best judgment assessments would be inapplicable.
Allowing the appeals.
D ^ HELD: 1.1 on a true construction of sub section
(1) and sub section (3) of section 14 of the Andhra Pradesh General Sales Tax Act, 1957 it is apparent that where a return is not filed by a dealer before the date prescribed in that behalf under the Act the assessing authority has jurisdiction to complete the assessment within a period of six years from the expiry of the year to which the assessment relates.
[744C] 1.2 The two types of cases which fall under sub section
(1) and sub section
(3) of section 14 of the Act respectively are mutually exclusive.
The return on the basis of which an assessment is to be made under section 14(1) is a return filed within the prescribed period and in such a case the assessment has to be completed within a period of four years from the expiry of the period to which the assessment relates.
The Act confers a distinct advantage on such a dealer who is prompt in filing his return inasmuch as he acquires immunity against assessment on the expiry of the said period of four years.
All cases where the return is submitted beyond the prescribed date fall under sub section
(3) of section 14 of the Act.
Assessment in such cases may be completed within six years from the expiry of the year to which the assessment relates.
When once it is established in a case that a return has not been filed within the prescribed period such case falls outside section 14(1) of the Act and therefore the period of four years prescribed therein becomes automatically inapplicable.
It clearly falls under cl.
(i) of sub section
(3) of section 14 of the Act and assessment can be H 738 made in such a case within the expiry of the period of six years.
In the instant cases the returns were not filed within the prescribed dates.
The assessments have, therefore, been rightly made within six years from the expiry of the year to which the assessments relate.
[742G H; 743A B; 744C] 2.
Whether the assessment made is the best judgment or not has no bearing at all on the period within which an assessment can be made under the Act.
It depends upon the other conditions mentioned in sub section
(1) and (3) of section 14.
Best judgment assessment can be made even in a case falling under sub section
(1), as is evident from the latter part of that sub section which reads: "but if the return appears to him to be incorrect or incomplete he shall after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, to assess to the best of his judgment, the amount of tax due from the dealer." Yet such best judgment assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates.
Therefore, in the instant case merely because the assessments are not best judgment assessments, it cannot be said that sub section
(3) of section 14 is inapplicable.
Neither the High Court nor the Tribunal gave adequate attention to the words 'before the date prescribed in that behalf ' in cl.
(i) of sub section
(3) of section 14.
They laid emphasis only on the words 'fails to submit return ' in the said sub clause to arrive at a wrong conclusion.
[743C, H; 744A B] State of Andhra Pradesh vs Pyarelal Malhotra, (13 S.T.C. 946), and State of Madras vs S.G. Jayaraj Nadar & Sons, 28 S.T.C. 700, distinguished.
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<s>[INST] Summarize the judgementCivil Appeal No. 1637 of 1987.
From the Judgement and order dated 3.3.1986 of the High Court of Punjab and Haryana in Civil Writ Petition No. 1055 of 1986.
S.K. Bagga and Mrs. S.K. Bagga for the Appellant.
R.S. Suri for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is directed against the judgment and order of the High Court of Punjab & Haryana dated the 3rd March, 1986 dismissing the Writ Petition in limine under Articles 226 and 227 of the Constitution of India filed by the appellant before the High Court.
The appellant states that he is the owner of certain premises in Punjab.
It must, however, be mentioned that the petition is lacking in particulars as to what premises the appellant owned and in respect of which premises the appellant is making the grievances.
On this ground it is not possible to decide the question of vires canvassed before the High Court and repeated before us.
A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vacuum.
The essential facts necessary to examine the validity of the Act are lacking in this appeal.
On this ground the petition was rightly rejected and we are not inclined to interfere with the order of the High Court on this ground alone.
Be that as it may as the question of vires of Section 4 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter called 'the Act ', was challenged before the High Court and canvassed before us.
It is just as well that we did with that connection.
Shri S.K. Bagga, learned counsel for the appellant submitted that Section 4 of the said Act is ultra vires the Constitution and unreasonable inasmuch as the section provides that rent prevalent in 1938 the basis for the determination of fair rent if unreasonable and unjust.
He urged that pegging the rent prevalent in 1938 the basic rent was inequitable and unjust in the background of the tremendous rise in prices.
But it has to be borne in mind that certain increases have been provided for in section 4 from the rent prevalent in 1938.
In must, however, be remembered that the Act was passed as the preamble of the said Act which states, inter alia, "to restrict the 110 increase of rent".
One of the objects of the Act was to restrict the increase in rent.
With that object the Act has provided certain provisions as to fixation of the fair rent.
Section 4 of the Act which is under challenge may be conveniently set out as under: "Section 4 "Determination of fair rent: (1) The Controller shall on application by the tenant or landlord of a building or rented land fix the fair rent for such building or rented land after holding such enquiry as the Controller thinks fit.
(2) In determining the fair rent under this section, the Controller shall first fix a basic rent taking into consideration: (a) The prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances during the twelve months prior to 1st January, 1939; and (b) the rental value of such building or rented land if entered in property tax assessment register of the municipal, town or notified area committee, cantonment board, as the case may be relating to the period mentioned in clause (a); Provided that, not with standing anything contained in sub sections (3), (4) and (5) the fair rent for any building in the Urban area of Simla shall not exceed the basic rent.
(3) In fixing the fair rent of a residential building the Controller may allow, if the basic rent: i) in the case of a building in existence before the Ist January, 1939 (a) does not exceed Rs.25 per mensem an increase not exceeding 81 xab per cent on basic rent; (b) exceed Rs.25 per mensem, an increase but does not exceed RS.50 per mensem, an increase not exceeding 12 1/2 per cent on such basic rent; (c) exceeds RS.50 per mensem an increase not exceeding 25 per cent on such basic rent; 111 (ii) in the case of building, constructed on or after the Ist January, 1939 (a) does not exceed Rs.25 per mensem, an increase not exceeding 25 per cent on such basic rent; (b) exceeds Rs.25 but does not exceed Rs.50 per mensem, an increase not exceeding 37 1/2 per cent on such basic rent; (c) exceed Rs.50 per mensem, an increase not exceeding 50 per cent on such basic rent; (4) in fixing the fair rent of a scheduled building the controller may allow, if the basic rent (i) in the case of a building in existence before the Ist January, 1939 (ii) does not exceed Rs.25 per mensem, an increase not exceeding 13 1/2 per cent on such basic rent; (b) exceeds Rs.25 but does not exceed Rs.50 per mensem, an increase not exceeding 17 xab per cent on such basic rent; (c) exceed Rs.50 per mensem, an increase not exceeding 303 percent on such basic rent; (ii) in the case of a building constructing on or after the Ist January, 1939 (a) does not exceed Rs.25 per mensem an increase not exceeding 30 percent on such basic rent; (b) exceeds Rs.25 but does not exceed Rs.50 per mensem, an increase not exceeding 42 xab per cent on such basic rent; (c)exceeds Rs.50 per mensem, an increase not exceeding 55 per cent on such basic rent; 112 (5) In fixing fair rent of a non residential building or rented land the controller may allow, if the basic rent, (i) in the case of building in existence before the Ist January, 1939 or in the case of rented land; (a) does not exceed Rs.50 per mensem, an increase not exceeding 371/2 per cent on such basic rent; (b) exceeds Rs.50 per mensem, an increase not exceeding SO per cent on such basic rent; (ii) in case of building constructed after the Ist January 1939: (a) does not exceed Rs.50 per mensem, an increase not exceeding 50 per cent on such basic rent; (b) exceeds Rs. 50 per mensem, an increase not exceeding 100 per cent on such basic rent; (6) Nothing in this section shall be deemed to entitle the Controller to fix the rent of a building or rented land at an amount less than the rent payable for such building or rented land under a subsisting lease entered into before the first day of the January 1939.
" It was contended that Section 4 of the Act provides the manner for determining the fair rent.
But while laying down the procedure for determining the fair rent it has laid down that the Rent Controller, while determining the fair rent under this section shall take into consideration the prevalent rates of rent in the locality for the same or similar accommodation in similar circumstances during 12 months prior to Ist January, 1939.
In other words, he has first to determine the rent prevalent in the locality in the year 1938 and then fix the rent accordingly.
This it is submitted, was unreasonable and as such arbitrary and violative of Article 14 and would be an interference with the fundamental right guaranteed under Article 19(1)(g) of the Constitution.
There has been according to the appellant, a tremendous rise in prices and as such in pegging the rent at the rate of Act of 1938 in an Act of 1949 was unreasonable.
He drew our attention to the relevant provisions of the Rent Act in Assam, Tripura and Haryana where the provisions of fixation of rent 113 according to him were different and were more fair and just and reasonable in comparison and submitted that this provision of the Act in question was unfair and unjust.
We are unable to accept this contention because each legislature in the several States has provided the method of determination of fair rent on the basis of legal conditions, as judged to be, by each such legislature.
It is well settled that the legislative wisdom of such legislation is not a ground for which the validity of the Act can be challenged .
Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory or different.
Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments.
The source of authority for the two statutes being different, Article 14 can have no application.
See in this connection the decision of this Court in Prabhakaran Nair and others vs State of Tamil Nadu and others; , Shri S.K. Bagga, learned counsel drew our attention, we must have hasten to add to the different statutes in different States on this aspect.
We cannot say that there was any better provision in those statutes, there were undoubtedly different provisions and those different provisions were judged by the legislatures of those State to be suited to the needs of those States.
It is not necessary for us to examine in details those very provisions.
Shri S.K. Bagga, learned counsel also drew out attention to the observations of this Court in the case of M/s Raval & Co. vs K.G. Ramachandran and others, A.I.R. 1974 S.C. 818 1197412 S.C.R. 629.
He drew out attention how fair rent should be fixed by relying on the certain observations of Bhagwati, J. as the Chief Justice then was at Page No. 825 of the A.I.R.
In the facts and in the context of this case it is not necessary to refer to these observations.
These were made entirely in a different context.
It must be the function of the legislature of each State to follow the methods considered to be suited for that State, that would be no ground for judging the arbitrariness or unreasonableness of a particular legislation in question by compari 114 son.
What may be the problem in Madras may not be the problem inPunjab.
It must however, be borne in mind that the Act in question was passed in 1949 and it pegged the rent prevalent in the similar houses in 1938 and as such is not unreasonable per se.
The rises stated tremendously after the end of the Second World War after the partition of the country.
In that view of the matter, we can not say that per se there is unreasonableness in fixing the prices in 1938 level.
Having regard to the specific preamble of the Act we find nothing unreasonable in the Scheme contemplated under Section 4 of the present Act.
In the aforesaid view of the matter, the challenge to Section 4 on the grounds advanced before us must fail and it is accordingly rejected.
The appeal, therefore, fails and is dismissed.
There will be no order as to costs.
N.P.V. Appeal dismissed.
[/INST]% The appellant filed a writ petition in the High Court questioning the vires of section 4 of the East Punjab Urban Rent Restriction Act, 1949.
He did not, however, mention the particulars of the premises of which he claimed to be the owner, and in respect of which he was making a grievance.
The High Court dismissed the writ petition in limine.
Hence the appeal.
It was submitted on behalf of the appellant that section 4 of the Act was ultra vires the Constitution and violative of article 14, and would be an interference with the fundamental right guaranteed under article 19(1)(g) and was unreasonable, and unjust inasmuch as it provided that rent prevalent in 1938 should be taken as the basis for the determination of higher rent and that pegging the rent prevalent in 1938 as the basic rent, was inequitable and unjust in the background of the tremendous rise in prices, and that the provisions of fixation of rent in other States were different and were more fair and just and reasonable in comparison.
Dismissing the appeal, this Court, ^ HELD: 1.1 A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vacuum.
[109E]i 108 In the instant case, the essential facts necessary to examine the validity of the Act are lacking.
On this ground the petition was rightly rejected and this Court is not inclined to interfere with the order of the High Court on this ground alone.
[109E F] 2.1 Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory or different.
Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments.
The source of authority for the two statutes being different, article 14 can have no application.
[113C D] 2.2 Each legislature in the several States has provided the method of determination of fair rent on the basis of legal conditions, as judged to be, by each such legislature.
The legislative wisdom of such legislation is not a ground on which the validity of the Act can be challenged.
[113B] 2.3 It must be the function of the legislature of each State to follow the methods considered to be suited for that State, that would be no ground for judging the arbitrariness or unreasonableness of a particular legislation in question by comparison.
What may be The problem in Madras may not be the problem in Punjab.
[113H; 114A] The Act in question was passed in 1949 and it pegged the rent prevalent in the similar houses in 1938 and as such is not unreasonable per se.
The rises started tremendously after the end of the Second World War after the partition of the country.
It cannot, therefore, be said that per se there is unreasonableness in fixing the prices in 1938 level.
[114A B] One of the objects of the Act was to restrict the increase in rent.
With that object, the Act as provided certain provisions as to fixation of the fair rent.
Therefore, having regard to the specific preamble of the Act there is nothing unreasonable in the Scheme contemplated under section 4 of the Act.
[114B C] Prabhakara Nair and others vs State of Tamil Nadu and others; , and M/s. Raval & Co. vs K.C. Ramachandran and others; , 2 S.C.R. 629, referred to. 109
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<s>[INST] Summarize the judgementivil Appeal No. 562 of 1964.
Appeal by special leave from the judgment and order dated ' February 7, 8, 1963, of the Bombay High Court (Nagpur Bench) at Nagpur in Appeal No. 115 of 1962.
M. C. Setalvad, N. L. Belekar, R. D. Awade and A. G. Rat naparkhi, for the appellant.
N. C. Chatterjee, V. section Sawhney, section section Khanduja, section K. Manchanda and Ganpat Rai, for respondent No. 1. 850 The Judgment of the Court was delivered by Mudholkar J.
The question which arises for consideration in this appeal by special leave from the judgment of the Bombay High Court is whether respondent No. 1 Dr. D. P. Meshrarn was entitled to be a candidate for election to the Maharashtra Legislative Assembly from constituency No. 190 of Nagpur III, a constituency reserved for candidates from scheduled castes.
The appellant and respondents 1 to 4 were candidates duly nominated for election to the Assembly from the aforesaid constituency.
The poll was taken on February 27, 1962 and respondent No. 1 who had polled the highest number of votes was declared elected.
The appellant thereupon preferred an election petition before the Election Commission, the main allegations in which were (a) that respondent No. 1 having embraced Buddhism on March 17, 1957 had ceased to be a member of a Scheduled Caste within the meaning of the Constitution (Scheduled Castes) Order, 1950 and was thus disentitled from being a candidate for the particular seat and (b) that respondent No. 1 was guilty of several corrupt practices.
The Tribunal held that the "Corrupt practices alleged against respondent No. 1 were not established.
It, however, came to the conclusion that respondent No. 1 had embraced Buddhism as alleged by the appellant and was, therefore, not eligible for being a candidate for election from the reserved constituency.
Upon this ground the Tribunal set aside the election of respondent No. 1.
It may be mentioned that the appellant had made a further prayer to the effect that he should be declared elected to the seat; but this prayer was not granted by the Tribunal on the ground that he was not the only other candidate for election and, therefore, it cannot be said how the votes which respondent No. 1 had secured would have been distributed among the remaining candidates.
Aggrieved by the decision of the Tribunal respondent No. 1 preferred an appeal before the High Court of Bombay.
The only question which was urged before the High Court was regarding the alleged conversion of respondent No. 1 to Buddhism.
On that question the High Court reversed the finding of the Tribunal and held that the fact had not been established by evidence.
The High Court, therefore, upheld the election of respondent No. 1.
In support of his contention that respondent No. 1. was con verted to Buddhism on March 17, 1957 the appellant had ,adduced evidence of P.W. 9 Ramrattan Janorkar, P.W. 2 Akant 851 Mate, P.W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre.
Ramrattan who claims to be a Buddha has said that he presided over a meeting held at Lashkari Bagh, Nagpur, two or three days after the Holi festival of the year 1957 at which a mass conversion of persons belonging to Scheduled Castes to Buddhism took place.
He named ten persons who, according to him, had been converted at that meeting, one of them being respondent No. 1.
Amongst others named by him were P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre.
These three persons have corroborated the evidence of Ramrattan.
We have been taken through the evidence of these witnesses and though there may be some contradictions on minor points on the whole their evidence is consistent and has a ring of truth in it.
Moreover, the Tribunal which heard and saw the witnesses depose has believed in their veracity.
The High Court has, however, not chosen to accept their evidence mainly on the ground that these witnesses belong to a party which is opposed to respondent No. 1 and his party.
It is not disputed before us that these witnesses as well as respondent No. 1 were members of the Republican Party of India founded by the late Dr. Ambedkar and that some time after his death there was rift in the party as a result of which two groups were formed.
The leader of one of these groups in Haridas Awade and that of the other is Khobargade.
Respondent No. 1 belongs to the group headed by Khobargade while the appellant and the witnesses belong to the other group.
We agree with the High Court that we should not lose sight of this fact.
In our opinion, however, there are good grounds for accepting the evidence.
In the first place there is the fact, which is admitted by respondent No. 1 himself, that a mass conversion of a very large number of persons belonging to the Scheduled Castes to Buddhism took place at Nagpur on October 14, 1956 at a meeting which was presided over by Dr. Ambedkar.
What took place at that meeting is set out in exhibit 66 which gives 'an account of the proceedings.
It says that about 5 lakhs of persons attended the meeting.
At that meeting Dr. Ambedkar was present along with Rev. Mahesthavir Chandramani who is a Bhikku.
The Bhikku made Dr. Ambedkar and Mrs. Ambedkar recite the three refuges (Thrisathi) and five precepts in Pali, after which both of them garlanded the idol of Lord Buddha which had been installed in the pandal where Dr. and Mrs. Ambedkar, the Bhikku and other prominent people were sitting.
Dr. and Mrs. Ambed 165 11 852 kar then took 22 vows, which apparently he had himself prepared.
Thereafter the mass ordination took place at which those who, wished to be converted recited the three refuges three times.
This event had attracted attention throughout the country and was given wide ,publicity, by the press which was well represented at the meeting.
Respondent No. 1 has admitted that he was a member, ,of Dr. Ambedkar 's party at that time and though he could not attend the conversion ceremony he had not. dissociated himself, from it.
According to him the reason why he did not attend thee ceremony was that he was then, busy with,, making arrangements. at the, water works.
for the supply of water to the lakhs of people, most of whom had come from the neighbouring villages to attend the ceremony.
It is in the evidence of witnesses that at least lakhs of persons belonging to the Scheduled Castes were converted to Buddhism at that meeting and that the work of conversion went on even, after October 14, 1956 for quite some time.
Another factor to be borne in mind is that prominent persons belonging to there Scheduled Castes were converted to Buddhism and it would be highly improbable, that respondent No. 1 who was a prominent member, of the.
Scheduled Castes in Nagpur and a follower of Dr., Ambedkar would have remained aloof from the movement started by Dr. Ambedkar.
The main object of Dr. Ambedkar was to secure for the members of the Scheduled Castes an honorable place in society and he felt that the various disabilities placed upon members of these castes were due to the fact that in Hindu religion to which they belonged, they had been accorded the lowest rank in society with the result that they had come to be regarded as untouchables.
Undoubtedly, the caste system has virtually come to be regarded as an essential feature of Hindu society and, therefore, Dr. Ambedkar felt that the only way open to members belonging to the lowest group was to sever their connection completely from such a society.
He found that Buddhism, the way or path of peace, not only, offered solace to the spirit but also social equality to all its members.
Dr. Ambedkar was the unquestioned leader of the Scheduled Castes, at any rate in Maharashtra.
It would, therefore, not be unreasonable to infer that those who had accepted his leadership and those who in addition held prominent places amongst people belonging to the Scheduled Castes should follow Dr. Ambedkar and renouncing Hinduism embrace like him, Buddhism.
If this probability is borne in mind the evidence of the witnesses who have deposed to the fact of the actual conversion of respondent No. 1 to Buddhism would become more easily acceptable.
853 That, however, is not all.
Corroboration of this evidence was sought to be supplied by the appellant from the conduct of respondent No. 1 subsequent to his conversion.
For this purpose he has relied upon three matters: One is the signing of a declaration by respondent No. 1 along with some other persons to the effect that he had embraced Buddhism and that he, therefore, ceased to be any longer a member of the Scheduled Castes; the second is a wedding invitation subscribed to, amongst_others, by respondent No. 1 on which the picture of Lord Buddha is inscribed: and the third is the conversion of a Shiva temple situate near the appellant 's house to a Buddha temple.
The declaration is exhibit 42 and is dated July 5, 1957.
It is to the following effect: "To whomsoever it may concern: We, the following signatories, do hereby affirm that we embraced Buddha religion on 17 3 1957 and no longer since remain Harijans.
" Then follow the names of ten persons, including P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Dongre.
Each of them has signed therein against his name.
The reason why this declaration came into existence is, according to the appellant, the following: Elections had taken place to the Nagpur Corporation and a meeting was held on July 5, 1957 for selection of six additional members.
One of the Corporators, Mr. Udhoji, raised a point of order to the effect that no member of the Scheduled Castes having been elected to the Corporation a person belonging to the Scheduled Castes was required to be selected under the provisions of the Nagpur Municipal Corporation Act.
Respondent No. 1 was one of the persons who had already been elected to the Corporation and was present at the meeting.
He, however, did not contest the statement of Mr. Udhoji to the effect that no person belonging to the Scheduled Castes had been elected.
Apparently, the point of order was disallowed and selection of six members, none of whom belonged to the Scheduled Castes, took place.
Immediately thereafter the declaration referred to above was signed by ten persons, including respondent No. 1, who had all been elected as members of the Municipal Corporation at the Corporation election.
This was filed along with the writ petition presented before the High Court in which the selection made at the meeting of July 5, was sought to be quashed on the ground 854 that no person belonging to a Scheduled Caste had been selected.
Respondent No.1 admits that he did sign this declaration but in his written statement the reason given by him is that he did so under political pressure.
In his evidence, however, he has given a different explanation.
This is what he has said : "Akant Mate came there with some writing and told us that it was the directive of the Scheduled Castes Federation that members elected on its tickets should sign it.
I do not know how he got that directive from the Federation, and from whom he got it.
The writing was in English and I signed upon it.
Akant Mate told me that I should sign on the document, he would go and get signatures of other Corporators and give it in the Corporation office.
I could not myself read the English typewritten material.
Akant Mate told me that the President of the meeting gave the ruling in the information by the Commissioner that I and Mate ' were members of the Scheduled Caste and that if this were not so, we would be able to get one more member and, therefore, I should sign on the document.
My consent was not taken for filing the declaration in the High Court.
I was not a party to the proceedings in the High Court, in connection with which the declaration was taken.
" What he has said is, in substance, that he was duped by Akant Mate.
There is thus a variation between his pleading and the proof adduced and in the circumstances we will be justified in rejecting his explanation.
Once the explanation is rejected the declaration must be taken into account as a piece of corroboration of the fact that he had ceased to be a Hindu as he had been converted to Buddhism.
Respondent No. 1 does not deny that the wedding invitation placed on record by the appellant bears his name as one of the hosts.
The invitation pertains to the wedding of his daughters Lalita and Pushpa Lata and their respective bridegrooms were Sirish and Yashwant Rao.
At the top of the invitation are the usual words "Subh Langna" (auspicious wedding).
Then there is a picture of Lord Buddha followed by the inscription "May victory and prosperity by yours Obeisances to Buddha".
It is well known that in Hindu weddings the invitations issued in an Indian language the picture of the Kuladaivata is generally printed 855 and the blessings of the Kuladaivata are invoked.
Had respondent No. 1 considered himself to be a Hindu he would have followed the usual practice.
No doubt, sophisticated people, though still belonging to Hindu religion, have discarded the practice of printing the picture of the family deity on wedding invitations and of invoking the blessings of the deity.
Respondent No. 1 does not suggest that he belongs to that class.
Indeed, if that were so, there would have been no occasion to print the picture of Lord Buddha and seek his blessings.
In this invitation the picture of the Kuladaivata was substituted by that of Lord Buddha.
This is more consistent with Respondent No. 1 having become a Buddhist than with his remaining a Hindu.
According to respondent No. 1 he did not know till after the Sakshyagandh (engagement) was over that either of the bride grooms was a Buddhist.
He says that a week before the marriages someone from the side of the bridegrooms met him and told him that the weddings had to be performed according to the Buddhist ritual and if he was not agreeable the engagements would be broken off.
It was then that he first thought that the bridegrooms were Buddhists.
However, he did not think it proper to break off the engagements.
Now, if he were still a Hindu belonging to the Scheduled Castes it is unlikely that he would have reconciled himself with the idea of giving his daughters in marriage to non Hindus, more particularly when the bridegrooms ' side insisted on following the Buddhist ritual.
He has, no doubt, tried to give an explanation for this curious conduct by saying that he treated Lord Buddha as the "11th (sic) incarnation" and that is why he had Lord Buddha 's picture printed on the wedding invitation.
That explanation cannot be easily accepted.
As regards the third circumstance there is the evidence of Budhaji Godbole, P.W. 11, and Kisan Shende, P.W. 14, in addition to that of the appellant.
According to them respondent No. 1 converted the Shiva Temple in Gautamnagar into Buddha temple on June 6, 1959 and installed Lord Buddha 's image at a function over which he presided and at which Dr. Y. B. Ambedkar, President of Buddhist Society was present.
Respondent No. 1 had admitted most of the facts, as pointed out by the High Court itself.
The variation between the contentions of the parties is this.
According to respondent No. 1 there was a Shiva Temple on a plot of land in Gaddigudam at Nagpur.
While laying a new road in the year 1932 or so this plot was 856 taken over by the Nazul authorities and another plot was given for the Shiva Temple in exchange.
But according to him, no Shiva Temple was at all constructed or Shiva Ling installed therein.
This is obviously untrue.
He admits that this plot " was managed by a Panch Committee" of which he was a member.
For, without constructing a Shiva Temple on the plot there could have been nothing to manage by the Panch Committee.
No doubt, he says that while he was Chairman of that Committee in the year 1959 or 1960 it was decided to construct a Shiva Temple thereon.
But it is difficult to believe that the people of the locality would have waited for 28 years for taking the decision.
He admits that a temple dedicated to Lord Buddha was constructed thereon as alleged by the appellant and his witnesses.
It seems clear that the decision of the committee to which he refers related to the construction of this temple and not to a Shiva Temple which was already there.
The evidence led on behalf of the appellant was to the effect that at the cere mony held on June 6, 1959 the idol of Lord Buddha was in stalled above the Shiva Linga, presumably meaning thereby that the Shiva Linga was overlaid with earth or bricks and on the top of it the image of Lord Buddha was installed.
Referring to the evidence of Shende the High Court has observed: "The witness however does not say that he saw the removal of the old image of Lord Shiva or the Ling and the Pinda which were already there.
On the other hand it is the case of Meshram that the Corporation had already given another plot to which the Shiva Mandir had long before been shifted and since this plot was idle, he gave it for the installation of Buddha 's idol.
" The observation of the High Court underlined by us is apparently based on a misreading of the evidence of respondent No. 1 and also ignores his plea on the point in his written statement.
It is not his case that two plots were allotted for a Shiva Temple one of which was vacant.
His case, as already stated, was that the plot given in exchange for the old one was never utilised and not that two plots were given, one of which was utilised.
Again, the High Court has failed to appreciate properly the evidence of Budhaji Godbole.
What he has said is this "One house away from the house of respondent No. 1 is a plot of land on which then stood a Shiva Temple.
This plot stood in the name of the respondent 857 No. 1.
In that temple was Ling and Pind of Shiva.
From 6 6 1959 this temple has now become Buddha Vihar.
On that day, the Ling and Pind were put underground and at that place was installed idol of God Buddha The installation of the image of God Buddha was done by Bhaiyasaheb Ambedkar.
It was the respondent No. 1 who was the principal man in converting the Shiva temple into a Buddha Vihar.
" There is no suggestion in his cross examination that this witness had no personal knowledge of what he had deposed to.
Since he has clearly spoken about the burial of the Shiva Linga and the installation of the image of Lord Buddha on top of it, he must be understood to mean that this was what happened in his presence and also in that of respondent No.1.
Incidentally, it may be stated that this witness is also a convert to Buddhism.
A reference may also be made to the evidence of the other witness Kisan Shende.
The relevant portion of his deposition is as follows : "The respondent No. 1 was the President of the function.
The idol of Buddha was installed by Bhaiyasaheb Ambedkar on an ota which covered the old Ling and Pind representing God Shiv This part of evidence of this witness has not been challenged in cross examination.
There is no reason why this evidence ought not to be accepted, particularly when some of the essential facts deposed to by the witnesses have been admitted by respondent No. 1 himself.
If we accept this evidence then the only conclusion which can emerge is that respondent No. 1 had ceased to be a Hindu.
For, however great the admiration or regard a Hindu may have for Lord Buddha, he would shudder at the idea of desecrating a Shiva Linga in this manner or even of converting what was once a Shiva temple into a Buddhist temple.
In our opinion, this would be the strongest circumstance corroborating the evidence of eye witnesses regarding the conversion of respondent No. 1 to Buddhism.
It is contended on behalf of respondent No. 1 that there is a register of persons who had been converted to Buddhism and that the first respondent 's name does not appear there.
It is true that R.W. 5 Waman Godbole speaks of some register but his evidence clearly shows that the register is not regularly maintained nor are the signatures of persons who had been converted 858 taken according to the dates of conversion.
There is nothing to show that it was obligatory on every person who had been converted to sign in the register.
Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more.
Absence of a person 's signature in the register would not necessarily negative his being at all converted to Buddhism.
Then it is said that only Bhikku is entitled to convert non Buddhists to Buddhism.
There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 Dr. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism.
Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by a Bhikku.
Buddhism was in essence also a protest against orthodoxy and the power of the priesthood.
It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary.
It is in evidence that at every conversion three vows had been repeated thrice.
Five precepts had also to be repeated by those who offered them selves for conversion.
This was exactly what was done by Dr. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date.
It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function.
What cl.
(3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that Order he must be one who professes either Hindu or Sikh religion.
The High Court, following its earlier decision in Karwade vs Shambhakar(1) has said that the meaning of the phrase "professes a religion" in the aforementioned provision is "to enter publicly into a religious state" and that for this purpose a mere declaration by person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient.
The meanings of the word "profess" have been given thus in Webster 's New Word Dictionary : "to avow publicly; to make an open declaration of;. to declare one 's belief in : as, to profess (1) I.L.R. 859 Christ.
To accept into a religious order.
" The meanings given in the Shorter Oxford Dictionary are more or less the same.
It seems to us that the meaning "to declare one 's belief in : as to profess Christ" is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change,in religious belief.
It would thus follow that a declaration of one 's belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest.
Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion.
In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious.
The word "profess" in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion.
Where, therefore, a person says, on the contrary, that he, has ceased to be a Hindu he cannot derive any benefit from that Order.
Finally it is argued that the word Hindu is comprehensive enough to include a Buddhist and in this connection our attention is invited to Explanation 11 to cl.
(2) of article 25 of the Constitution.
Clause (1) of article 25 recognises, amongst other things, freedom to practise and propagate religion.
Sub clause (b) of cl.
(2) runs thus : "Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
" Explanation II ' reads thus : "In sub clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
" The definition of Hindu is expanded for the special purposes of sub cl.
(b) of cl.
(2) of article 25 and for no other.
Paragraph 3 of the Constitution (Scheduled Castes) Order reads thus 860 .lm15 "Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.
" If it was intended that the word "Hindu" used in this paragraph should have a wide meaning similar to that in Explanation 11 just quoted the re would have been no need to make a mention of the Sikh religion.
From the fact that a special mention is made of the Sikh religion it would follow that the word "Hindu" is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injunctions based on caste distinctions.
For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes.
In the circumstances the Tribunal was right in setting aside his election.
Accordingly we allow the appeal, set aside the judgment of the High Court and restore that of the Tribunal.
Costs throughout will be borne by respondent No. 1.
Appeal allowed.
[/INST]The appellant challenged the election of the 1st respondent to the, Legislative Assembly on the ground that the latter had embraced Buddhism and had ceased to be a member of a Scheduled caste within the meaning of the Constitution (Scheduled Castes) Order, 1950, and was thus disentitled from being a candidate for the particular seat.
The Election Tribunal upheld the contention and set aside the election.
On appeal, the High court held that the conversion of the 1st respondent to Buddhism had not been established by evidence and upheld his election.
On appeal to the Supreme Court, HELD : (i) The word "profess" in the Order means "to declare one 's belief in".
A declaration of one 's belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest.
Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion.
It is unnecessary to enquire further as to whether the conversion to another religion was efficacious.
[859 A D] (ii)No doubt the definition of "Hindu" contained in the Explanation to Article25 is expanded but that is only for the purposes of sub cl.
(2) of cl.
(2)of that Article and for no other.
The mention of Sikh religion in Para 3of the Order clearly shows that the word "Hindu" in the order is used in the narrower sense of orthodox Hindu religion which recognises castes and contains injunctions based on caste distinctions.
It is not comprehensive enough to include Buddhism.
[859 H; 860 B C] Karwade vs Shambhakar, I.L.R. over ruled.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 692 of 1983.
From the Judgment and order dated 29th November, 1983 of the Punjab & Haryana High Court at Chandigarh in Criminal Writ Petition No. 516 of 1983.
K. Parasaran, Attorney Genl.
of India, Bhagwant Singh, Advocate General (Punjab), Gurmukh Singh, Addl Adv.
of Punjab, D.S. Brar, Asstt Adv.
General, G.S. Mann.
Deputy Adv.
General, R.D. Aggarwal, Govt.
Advocate, Miss A. Subhashini and S.K. Bagga for the Appellants.
Hardev Singh, G.S. Grewal, N.S Das Behl, R.S. Sodhi and J.S. Sandhawalia, for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is an appeal by special leave against the judgment dated November, 29 1983 of a learned Single Judge of the High Court of Punjab and Haryana in Criminal Writ Petition No. 516 of 1983.
That Writ Petition was filed by the respondent.
Shri Jagdev Singh Talwandi, to challenge an order of detention passed by the District Magistrate, Ludhiana, on October 3, 53 1983 whereby the respondent was detained under section 3 (3) read with section 3 (2) of the .
The respondent was arrested in pursuance of the order of detention on the night between October 3 and 4, 1983.
He was first lodged in the Central Jail, Patiala and from there he was taken to Ambala, Baroda and Fathegarh (U.P.).
He filed a Writ Petition (No.463 of 1983) in the High Court to challenge his transfer and detention in a place far away from Ambala.
He withdrew that petition on an assurance by the Government that he will be sent back to Ambala, which the Government did on October 28.
The grounds of detention were served on the respondent on October 6, 1983.
Those grounds show that the petitioner was detained on the basis of two speeches allegedly made by him: one on July 8, 1983 at Nihang Chhowani, Baba Bakala, District Amritsar and the other on September 20, 1983 at Gurdwara Manji Sahib, Amertsar.
The grounds furnished to the petitioner read thus: "(1) That you in a Shaheedi Conference which was held from 11 a.m. to 4.45 p.m. on 8 7 1983 at a place known as 'Nihang Chhowani ' at Baba Bakala, District Amritsar, delivered a provocative speech to a Sikh gathering comprising about 2000/2200 Persons wherein you made a pointed reference to the incident dated 2 7 1983 of encounters between Nihangs and police at Baba Bakala and Taran Taran and stressed that in order to take revenge Sikhs would kill their (Police) four persons in lieu of the two Nihangs who had been killed in the said encounters.
(2) That while addressing a conference convened by the AISSF (All India Sikh Students Federation) on 20 9 1983 at Gurdwara Manji Sahib at Amritsar and attended by about 7000/8000 Sikh students, you made a provocative speech wherein you said that all efforts made for the success of the Akali Morcha having failed, it was still time to establish in Punjab a Government parallel to the Central Government and that you are in a position to form such a Government.
You further exhorted that the establishment of Khalsa Raaj was the only solution to the problems.
You also made a suggestion that the Government 54 will not accept any demand unless it was compelled by force to do so.
This statement was also published in the various newspapers.
A case F.I.R. No. 295 dated 27 9 1983 under section 124 A Indian Penal Code, and section 13 of the , was registered at Police Station 'E ' Division, Amritsar, which is under investigation.
" The detaining authority stated in the last paragraph of the detention order that the respondent was being supplied the grounds of detention in Punjabi (Gurmukhi script) together with an English translation thereof and the "supporting material forming the base of the grounds of detention".
The "supporting material", by which is meant particulars of the grounds of detention, was supplied to the respondent along with the grounds.
These particulars consist of what is alleged to be a report of the speeches made by the respondent, as recorded by the C.I.D. branch of the Punjab Police.
The particulars, of which an English translation was produced in the High Court at exhibit A1, read thus: "While speaking he said that on July 2 by bringing B.S.F., Punjab Police and other police the unarmed Nihangs were fired at.
There is no count as to how many of them were killed, because no rollcall is taken of the Sikhs; how many came and how many went.
Further said that in Punjab hundreds of innocent Sikhs have been made the target of bullets.
The Government has seen that the Sikhs go away after paying homage to the martyrs.
Now we will have to decide as to what steps should be taken.
The beloved army of Guru (Nihangs) have protected our dress and scriptures.
It is true that some of them do commit mistakes also.
They should be punished.
We should see that we should kill as many police man as they kill ours, otherwise they will slowly finish us.
The new Inspector General of Police Mr. Bhinder, has stated that there are no extremist in Darbar Sahib.
Further said that Congress wants to finish self respect among you.
The Morcha, which is launched by Akali Dal, is to save the Sikh appearance.
The awards have been given to police, have they won any war? Such a big attack upon the Nihangs was 55 on a pre planned programme.
I say if they have killed our two men, then you should kill four.
If they come to kill me like this, then I will die after killing them.
I will never go back.
Further said that if we get a judicial enquiry made, it becomes meaningless.
Nothing comes out of them.
Now the judicial power has been given to Executive Officers.
They may kill any body and they complete the enquiry and fill the file.
" One of the grounds on which the order of detention was challenged in the High Court was that the State Government had failed to discharge its obligation under Article 22 (5) of the Constitution by denying to the respondent an effective opportunity to make a representation to the Advisory Board against the order of detention.
On being asked by the learned Judge "to be more specific", counsel for the respondent stated in the High Court that the State Government had not supplied to the respondent the supporting material on which Ground No. 1 of the grounds of detention was based.
Shri Hardev Singh, who appears on behalf of the respondent, adopted that contention by clarifying that the case of the respondent is that the relevant facts stated in the 1st ground of detention are totally absent from the supporting material supplied to him and, therefore, no reasonable person could have possibly passed the detention order on the basis of that material.
The learned counsel urged that the order of detention was bad either because the detaining authority did not apply its mind to the material before it or, in the alternative, because there was some other material on the basis of which the detention order was passed and that material was not supplied to the respondent.
For the purpose of focussing attention on the true nature of the respondent 's contention and the prejudice said to have been caused to him, the learned Judge of the High Court resorted to an ingenious device.
He coined a conversation between the detaining authority and the detenu on the subject of their rival contentions in this case.
That imaginary conversation may be reproduced, at least for the merit of its novelty: "(The detaining authority and the detenu come face to face.) Detaining authority: (After reading out Ground No. 1 to the detenu) : You had made that objectionable speech.
56 Detenu: Sir, you seem to have been wrongly informed.
I did not deliver any speech, provocative or otherwise, in a Shaheedi Conference at any such time, date or place known as 'Nihang Chhowni ' at Baba Bakal, District Amritsar, before a Sikh gathering of 2000/2200, as read out by you from ground No. 1.
Detaining authority: (Being cock sure of its facts, takes out the C.I.D. report and puts it in the hands of the detenu.): Go through this C.I.D. report carefully, as ground No. 1 is based on that report.
Detenu: Sir, this report does not refer to any speech being made by me in a Shaheedi Conference at a given time, on a given date, at a given place, at Baba Bakala and before a Sikh gathering numbering 2000/2200.
Detaining authority: (Taking back the report from the detenu 's hand and subjecting it to a close scrutiny, says somewhat wryly): Yes, you are right.
The vital data which finds a mention in ground No. 1 is missing from the supporting materail.
(Regaining quickly his repose, the detaining authority continues): Never mind if the given vital facts are missing from the supporting material.
The supporting material at least reveals that you did utter the objectionable words somewhere, sometime, on some date and before some persons.
Detenu: Sir, but that was not the speech on which you were going to act.
You were going to take action against me on the basis of the speech mentioned in Ground No. 1.
Detaining authority: Very well.
(So saying, the detaining authority orders the detention of the detenu on two grounds by adding one more ground on the basis of another speech.
The detaining authority serves the order of detention upon the detenu, containing two grounds of detention.
Simultaneously, the detaining authority supplies the supporting material to the detenu.") 57 We must mention in order to put the record straight and in fairness to the learned Judge, that he has narrated this conversation in a manner which is slightly different in so far as the form, but not the substance; is concerned.
He has narrated the conversation in a running form.
We have reproduced it like a dialogue in a play, without adding anything of our own.
Indeed, we have taken care not to make any changes at all in the fictional conversation imagined by the learned Judge because, the questions and answers which suggested themselves to him are, in a sense, the heart of the matter and, in any case, constitute the essence of his judgment.
With respect to the learned Judge, the basic error of his judgment lies in an easy, unexamined assumption which he has made on a significant aspect of the matter.
The detenu reminded the detaining authority that the C.I.D. report did not refer to any speech made by him "in a Shaheedi Conference at a given time, on a given date, at a given place at Baba Bakala and before a Sikh gathering numbering 2000/2200".
The detaining authority could have not possibly replied to that question by saying merely that the detenu was right.
The detenu was right only formally or technically.
That is because, the C.I.D. report was supplied to him along with the grounds of detention with the express stipulation that it formed "the base of the grounds of detention".
The grounds mention every one of the details which need have been mentioned.
The C.I.D. report was furnished to the detenu as forming the source of information leading to the conclusion that he had made a speech which necessitated his detention in the interests of public order.
In the circumstances, the grounds and the material furnished to the detenu have to be read together as is the material in the form of the C.I.D. report was a continuation of the grounds of detention.
The unqualified reply given by the detaining authority to the detenu, as imagined by the learned Judge, betrays considerable unfamiliarity with the true legal position of the part on the detaining authority.
Not only that, but it shows that the detaining authority forgot that the particulars and the grounds were expressed to be interlinked, the former being the base of the latter.
The detaining authority should have explained to the detenu that though the particulars supplied to him did not mention those various details, the particulars were supplied to him along with the grounds, that it was expressly clarified contemporaneously that they related to the facts stated in the grounds, that the two had to be read together and that the grounds contained the necessary facts with full details.
The dialogue should 58 have ended there and the curtain rung down.
Indeed, the dialogue, though carefully improvised by the learned Judge, assumes what is to be decided, namely, whether the particulars furnished to the detenu suffer from the infirmity alleged.
Nevertheless, we will examine independently the argument of the respondent that he could not make an effective representation against the order of detention because the material supplied to him, that is to say, the C.I.D. report of the speech alleged to have been made by him at the Shaheedi Conference, did not contain the material particulars which formed an important constituent of the grounds served upon him.
His grievance is that the C.I.D. report of his speech does not mention that: (1) the Conference was held on July 8, 1983; (2) it was held at Nihang Chhowani; (3) it was held between the hours of 11.
A.M. and 4.45 P.M. (4) it was a "Shaheedi Conference"; (5) there was a gathering of 2000 to 2200 persons at the Conference; and that, (6) the speech made by him referred to an encounter at Baba Bakala and Tarn Taran.
Article 22 (5) of the Constitution, around which the argument or the respondent revolves, reads thus: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." This Article has come up for consideration before this Court in a large number of cases.
One of the earliest judgments of this Court on the interpretation of this Article is reported in Dr. Ram krishna Bhardwaj vs The State of Delhi,(1) in which Patanjali Sastri, C.J. observed that under Article 22 (5) of the Constitution, the detenu has the right to be furnished with particulars of the grounds of his detention, "sufficient to enable him to make a representation which, on being considered, may give relief to him".
Khudiram Das vs The State of West Bengal, 2 is a judgment of a four Judge Bench of this Court in a case which arose under the Main 59 tenance of Internal Security Act, 1971.
One of us, Bhagwati, J., who spoke for the Court, surveyed the decisions bearing on the question of the obligation of the detaining authority and explained the nature of that obligation thus: "The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds ' within the contemplation of article 22 (5) and section 8 and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest.
This has always been the view consistently taken by this Court in a series of decisions.
" In Mohammad Yousuf Rather vs The State of Jammu & Kashmir,(1) Chinnappa Raddy, J., in a concurring judgment, dealt with the implications of Article 22 (5) of the Constitution thus: "The extent and the content of Article 22 (5) have been the subject matter of repeated pronouncements by this Court (Vide State of Bombay vs Atmaram (2), Dr. Ramkrishna Bhardwaj vs State of Delhi (1) Shibbanlal Saxena vs State of Uttar Pradesh (3) Dwarkadas Bhatia vs State of Jammu & Kashmir (4).
The interpretation of Article 22, consistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights.
The law is now well settled that a detenu has two rights under Article 22 (5) of the Constitution .
(1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him." In Khudiram Das vs The State of West Bengal,(2) it was observed that these two safeguards "are the barest minimum which must be 60 observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security".
The question which we have to consider in the light of these decisions is whether sufficient particulars of the first ground of detention were furnished to the respondent so as to enable him to exercise effectively his constitutional right of making a representation against the order of detention.
The obligation which rests on the detaining authority in this behalf admits no exception and its rigour cannot be relaxed under any circumstances.
Having given our anxious consideration to this question, it seems to us impossible to accept the view of the High Court that sufficient particulars of the first ground of detention where not furnished to the detenu so as to enable him to make an effective representation to the detaining authority, that is to say, a representation which on being accepted may give relief to him.
This is not a case in which the ground of detention contains a bare or bald statement of the conclusion to which the detaining authority had come, namely, that it was necessary to pass the order of detention in order to prevent the detenu from acting in a manner prejudicial to the interests of public order.
The first ground of detention with which we are concerned in this appeal, mentions each and every one of the material particulars which the respondent was entitled to know in order to be able to make a full and effective representation against the order of detention.
That ground mentions the place, date and time of the alleged meeting.
describes the occasion on which the meeting was held, that is, the 'Shaheedi Conference '.
It mentions the approximate number of persons who were present at the meeting.
Finally, it mentions with particularity the various statements made by the respondent in his speech.
These particulars mentioned in the grounds of detention comprise the entire gamut of facts which it was necessary for the respondent to know in order to make a well informed representation.
The inadequacies from which the supplementary particulars furnished to the respondent along with ground No. 1 suffer, cannot affect that position because, they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground.
The argument of the respondent that he could not make an effective representation in behalf of ground No. 1 because of the inadequacy of data in the particulars supplied to him, has therefore to be rejected.
However, we are somewhat surprised that in a matter of this nature, 61 the detaining authority should have adopted a somewhat casual and unimaginative approach to his task.
We asked the learned Attorney General to produce before us the original version of the C.I.D. report of which an extract was supplied to the respondent by way of particulars.
The original version contains almost every one of the material details pertaining to the meeting which are mentioned in ground No. 1 The detaining authority needlessly applied his scissors excising the data which mentioned the date, the place, the time and the occasion of the meeting.
It is this lack of thoughtfulness on the part of the detaining authority which furnished to the respondent the semblance of an argument.
This Court has observed in numerous cases that, while passing orders of detention, great care must be brought to bear on their task by the detaining authorities.
Preventive detention is a necessary evil but essentially an evil.
Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution.
Nothing less.
We will utter the of given warning yet once more in the hope that the voice of reason will be heard.
Shri Hardev Singh contended, in the alternative, that the order of detention suffers from a total non application of mind because, that order could not have been passed on the basis of the C.I.D. report which does not refer to any of the facts which are mentioned in the order of detention.
It is undoubtedly true that the case of the appellants is that the order of detention is founded upon the report of the C.I.D., relating to the speech made by the respondent at the Shaheedi Conference.
But the argument of the learned counsel overlooks that what was furnished to the respondent was an extract from the C.I.D. report and not the whole of it.
However, that has not caused any prejudice to the respondent since the grounds and the particulars were served upon him simultaneously and ground No. 1 mentions every conceivable detail which it was necessary to mention in order to enable the respondent to make a proper representation against the order of detention.
Evidently, the detaining authority had before it the whole of the C.I.D. report on the basis of which it passed the order of detention.
What was omitted from the extract furnished to the respondent was incorporated in ground No. 1.
It is therefore not possible to accept the argument that the order of detention is bad because the detaining authority did not apply its mind to the question as to whether there was material on the basis of which the respondent could be detained.
It was further argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which 62 the order of detention was passed because, in the absence of knowledge of such evidence, the respondent could not have made an effective representation against the order of detention.
There is no substance in this contention.
It is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him.
In Beni Madhob Shaw vs The State of West Bengal,(1) it was argued on behalf of the detenu that the details of the activities attributed to him were not disclosed to him, as a result of which his right to make a representation to the Government was seriously prejudiced.
It was held by this Court that since the activities forming the grounds of detention were disclosed to the detenu in clear terms and since such disclosure furnished adequate information to the detenu to enable him to make an effective representation against his detention, the non disclosure of sources of information or the exact words of the information which formed the foundation of the order of detention could not be complained of.
In Her Jas Dev Singh vs State of Punjab,(2) it was held that the conclusions drawn from the available facts constitute 'the grounds ' and that the ground must be supplied to the detenu.
The Court observed that the detenu is not entitled to know the evidence nor the source of the information: What must be furnished to him are the grounds of detention and the particulars which would enable him to make out a case, if he can, for the consideration of the detaining authority.
In Vakil Singh vs State of Jammu and Kashmir, (3) it was held that since the basic facts, as distinguished from factual details were incorporated in the material which was supplied to the detenu, nothing more was required to be intimated to him in order to enable him to make an effective representation.
These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as, for example, the evidence corroborating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without which a full and 63 effective representation cannot be made.
If the order of detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu as held by this Court in Ichhu Devi Choraria vs Union of India.(1) That question does not arise here since no such thing is referred to or relied upon in the first ground of detention.
Indeed the furnishing of the C.I.D. report, of which a truncated extract was furnished to the respondent, was a superfluous exercise in the light of the facts of the instant case.
Shri Hardev Singh relied upon the following passage in the judgment in Khudiram in support of his contention that the entire material which was before the detaining authority, including the evidence gathered by him, must be furnished to the detenu: "But if the grounds of detention are not communicated to him how can he make an effective representation ? The opportunity of making a representation would be rendered illusory.
The communication of the grounds of detention is, therefore, also intended to sub serve the purpose of enabling the detenu to make an effective representation.
If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that the 'grounds ' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based.
" These observations cannot be construed as meaning that the evidence which was collected by the detaining authority must also be furnished to the detenu.
As the very same paragraph of the judgment at page 839 of the report shows, what was meant was that the basic facts and the material particulars which form the foundation of the order of detention must be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without being apprised of the same, the detenu cannot possibly make an effective representation.
Shri Hardev Singh found serious fault with the fact that in answer to the writ petition filed by the respondent in the High Court, the counter affidavit was sworn by Shri K.C. Mahajan, Deputy Secretary in the Home Department of the Government of Punjab, and 64 not by the District Magistrate, Ludhiana, who had passed the order of detention.
We are not prepared to dismiss this submission as of no relevance or importance.
In matters of a routine nature, if indeed there are any matters of a routine nature in the field of detention, a counter affidavit may be sworn by a person who derives his knowledge from the record of the case.
However, in sensitive matters of the present nature, the detaining authority ought to file his own affidavit in answer to the writ petition and place the relevant fats before the Court which the Court is legitimately entitled to know.
In Shaik Hanif vs State of West Bengal, the counter affidavit on behalf of the State of West Bengal was filed by the Deputy Secretary (Home), who verified the correctness of the averments in his affidavit on the basis of the facts contained in the official records.
The District Magistrate; who passed the order of detention, did not file his affidavit and the explanation which he gave for not doing so was found to be unsatisfactory.
Following an earlier judgment in Naranjan Singh vs State of Madhya Pradesh, it was held by this Court that, in answer to a Rule issued in a habeas corpus petition, it is incumbent upon the State to satisfy the Court that the detention of the petitioner is legal and is in conformity not only with the mandatory provisions of the Act under which the order of detention is passed but is also in accord with the requirements implicit in Article 22(5) of the Constitution.
Sarkaria, Jobserved on behalf of the Court: "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is all the more desirable that in response to the Rule Nisi, the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under s.3 was passed.
If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under section 3 cannot be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.
" 65 After reviewing certain other decisions, the Court held that the failure to furnish the counter affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority.
In the result, the absence of the affidavit of the District Magistrate was held not to vitiate the order of detention.
In this case too, there are no allegations of mala fides against the District Magistrate and so, his failure to file a counter affidavit will not vitiate the order of detention.
We cannot, however, leave this subject without emphasising once again the importance of the detaining authority filing his own affidavit in cases of the present nature.
There are degrees of impropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so to judge.
Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority in filing his own affidavit may vitiate the order of detention.
Finally, Shri Hardev Singh has contended that the respondent was unable to give proper instructions to his counsel when the matter was heard by the Advisory Board.
Counsel says that the respondent was transferred from place to place and ultimately.
he was produced before the Advisory Board an hour or so before the commencement of proceedings before the Board.
That left no time for him to instruct his counsel.
We do not see any substance in this grievance.
The respondent was represented by an advocate before the Advisory Board.
The learned advocate argued the case of the respondent along with the cases of two other detenus.
It does not appear that any grievance was made by him that he was not able to obtain instructions from the respondent so as to be able to represent his case effectively before the Advisory Board.
For these reasons, we allow the appeal and set aside the judgment of the High Court.
As desired by counsel for the respondent, we remand the matter to the High Court for disposal of the remaining contentions raised by the respondent in his Writ Petition.
We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment.
It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment 65 is ready for pronouncement.
Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention.
If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court.
That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented.
The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It may be thought that such orders are passed by this Court and therefore there is no reason why the High Courts should not do the same.
We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them.
The Supreme Court is the final Court in the hierarchy of our courts.
Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances.
Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes.
We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy.
[/INST]The respondent challenged the order of his detention passed by the District Magistrate, Ludhiana on October 3,1983 under section 3 (3) read with section 3 (2) of the , through Criminal Writ Petition No. 516 of 1983.
According to the petitioner respondent, the grounds of detention served on him on Oct. 6, 1983 showing that he was detained on the basis of two speeches made by him on 8.7.1983 and 20.9.1983 as recorded by the Crime Investigation Department of the Punjab Police contained certain particulars, which were totally absent from the supporting material and therefore no reasonable person could have possible passed the detention order on the basis of such material.
The High Court accepted the contention and made the rule absolute.
Hence the appeal by the State after obtaining special leave.
Allowing the appeal and remanding the matter to the High Court of Punjab, the Court ^ HELD: 1:1.
While passing orders of detaining great care must be brought to bear on their task by the detaining authorities.
Preventive detention is a 51 necessary evil but essentially an evil.
Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution.
Nothing less.
[61 B C] 1:2.
In the instant case, the detaining authority should not have adopted a somewhat casual and unimaginative approach to his task.
The original version contains almost every one of the material details pertaining to the meeting, which are mentioned in ground No.1.
The detaining authority needlessly applied his scissors excising the data which mentioned the date, place, the time and the occasion of the meeting.
It is this lack of thoughtfulness on the part of the detaining authority which furnished to the respondent the semblance of an arguments.
[61 A B] 2.
The contention of the respondent that he could not make an effective representation in behalf of ground No.1 because of the inadequacy of data in the supporting particulars supplied to him is incorrect.
The inadequacies from which the supplementary particulars furnished to the respondent along with ground No.1 suffer, cannot affect that position because, they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground.
The first ground of detention mentions that the detenu was right only formally or technically.
That is because, the C.I.D. Report was supplied to him along with the grounds of detention with the express stipulation that it formed "the base of the grounds of detention.
" The grounds mention every one of the details which need have been mentioned.
The C.I.D. report was furnished to the detenu as forming the source of information leading to the conclusion that he had made a speech which necessitated his detention in the interests of public order.
In the circumstances, the grounds and the material furnished to the detenu have to be read together as if the material in the form of the C.I.D. report was a continuation of the grounds of detention.
[57 C E, 60 F H] Dr. Ramakrishna Bhardwaj vs The State of Delhi, ; , Khudiram Das vs The State of West Bengal, ; , @ 838 & 840; Mohammed Yusuf Rowther vs The State of J & K, ; @ 268, 269; State of Bombay vs Atmaram, ; Shibbanlal Saxena vs State of Uttar Pradesh, ; ; Dwarkadas Bhatia vs State of Jammu & Kashmir, ; ; referred to.
The detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as for example, the evidence corroborating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without which a full and effective representation cannot be made.
If the order of the detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu.
It is not the law that evidence gathered by the detaining authority against the detenu must also be furnished to him.
[62 G H; 63 A B] Beni Madhob Shaw vs The State of West Bengal, A.I.R. Har Jas Dev Singh vs State of Punjab, ; @ 288; Vakil Vakil Singh vs State of Jammu & Kashmir, A.I.R. 1974 2337 @, 2341; Icchu Devi Choraria vs Union of India; , @ 650; referred to.
The failure to furnish the counter affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases 52 it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority.
There are no allegations of mala fides against the District Magistrate and so, his failure to file a counter affidavit will not vitiate the order of detention.
[65 A B] Shaik Hanif vs State of West Bengal, [1974]3 SCR 258; Naranjan Singh vs State of Madhya Pradesh, A.I.R. 1972 S.C. 2215, referred to.
[The Court emphasised the importance of the detaining authority filing his own affidavit in cases of the present nature and observed that "There are degrees of impropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so to judge.
Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority in filing his own affidavit may vitiate the order of detention.] [65 C D] 5.
It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement.
If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court.
That places this Court in a predicament because, without the benefit of the reasoning of the High Court it is difficult for this Court to allow the bare order to be implemented.
The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
[65 H; 66 A C]
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<s>[INST] Summarize the judgementCivil Appeal No. 2147 of 1980.
Appeal by Special leave from the Judgment and order dated the 19th August, 198(), of the Allahabad High Court in C.M.W.P. No. 7578 of 1979.
Pramod Swarup for the Appellant.
M.K. Garg and V.K. Jain for the Respondent.
The Judgment of the Court was delivered by RAANGANATH MISRA, J.
The tenant of one room which is a part of a premises located within the township of Aligrah in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Article 136 of the Constitution.
The respondent 218 landlord asked for his eviction on the ground of the tenant having created a sub tenancy of the premises sometime in October, 1976, in favour of M/s. Pavan Trading Company, a soap manufacturing concern.
The tenant denied the allegation of sub letting.
The main issue raised in the proceeding was whether the tenant had sub let the accommodation as alleged by the landlord.
The SCC Judge started dealing with this issue by saying: "Under Sections 12, I S and 20 of the Act if tenant has allotted a non family member to occupy the accommodation, he should be deemed to have sub let the accommodation.
If it is found that Pavan Trading Co. Or if any of his partner is carrying on business in the accommodation, the tenant in fact shall be deemed to leave sub let.
the accommodation.
In Delhi Rent Control Journal 1971 page 492 (Abdul Aziz vs Yakub Khan) it was held by the Court t hat if any person other than a tenant is found sitting in the shop, the tenant has to lead evidence to show that a sitting person is not the sub tenant.
Thus the burden is on the defendant to explain the circumstances under which partner of the Pavan Trading Co. is sitting in the accommodation.
21/C I a photograph has been proved.
Even the defendant has admitted this photograph during his cross examination; the person standing in the shop has been identified by the parties to be the son of the proprietor of Pavan Trading Co. " .
He looked for evidence from the tenant against sub letting by assuming from the presence of the son of the proprietor of Pavan Trading Company that there was a sub tenancy; held against the tenant and directed his eviction from the premises.
The Additional District Judge before whom the tenant 's revision petition came for disposal took note of the erroneous approach of the trial court and came to hold: "In the present case, it has not at all been admitted by the defendant that Pavan Trading Company or any member of the said company has been carrying on business in the shop alongwith him or by himself.
The mere presence of a member of Pavan Trading Company in the shop at a certain time will not be sufficient to say all that the business is being carried on by Pavan Trading Company in the shop.
In these circumstances, it was for the plaintiff to lead good and positive evidence to prove that the business in fact at that shop 219 was being carried on by the Pavan Trading Company and not A by the defendant himself." He looked into the evidence and came to hold: "The evidence of the plaintiff was not at all sufficient to shift the burden of proof to the defendant and on consideration of the evidence of the plaintiff it is not at all possible to say that the plaintiff has been able to prove the fact of Pavan Trading Company carrying on the business at the shop which may amount to sub letting of the shop by the defendant." .
The appellate authority, therefore, allowed the revision and reversed the order of eviction and directed dismissal of the petition of the landlord.
The landlord filed an application under Article 227 of the Constitution.
Referring to the contention of the landlord, the High Court observed: "Learned counsel for the petitioner submitted that the learned Additional District Judge clearly misconceived his jurisdiction under Section 25 of the Provincial Small Cause Court Act.
It is urged that it was not permissible for the learned Judge to, re appraise the evidence on record on the issue purely on fact.
The learned counsel contended that whether it was defendant 'who was doing business in the shop in dispute of M/s. Pavan Trading Company is undoubtedly a pure issue of fact, the findings on which could not be disturb ed in revision under Section 25 of the Provincial Small Cause Court Act", and held: "The Simple question for determination before both the courts below was whether defendant had sub let the shop in dispute to M/s. Pavan Trading Company.
This question depended on the facts of the present case wholly on the answer to the question whether it was the defendant or the proprietor of the said company who was doing business in the disputed shop.
This question was determined by the trial court on the basis of direct oral and documentary evidence adduced by the plaintiff to the effect that in point of fact it was the proprietor of M/s. Pavan Trading Company who was doing business in the shop in question instead of the defen 220 dant.
This finding is not based on any notion of burden of proof.
It was a pure and simple finding arrived at on the analysis of the evidence on record without reference to the question of burden of proof.
On the answer to this question depends entirely the fate of the case in as much as under Section 25 of the U.P. Act No. XIII of 1972 read with Section 12(1)(b) and Section 12(2) of the aforesaid Act, a tenant would be deemed to have sub let the accommodation, if he has allowed it to be occupied by any person who is not a member of his family.
Whether the tenant has allowed the shop to be occupied by someone not a member of his family is indisputably a pure question of fact.
That being so, the learned District Judge exceeded his jurisdiction under Section 25 of the Provincial Small Cause Court Act in setting aside the finding of the trial court on a mere re appraisal of the evidence or record.
The finding of the trial court was not vitiated by any error of law.
The impugned order is thus ex facie illegal." Having heard counsel for the parties we are of the view that the High Court was clearly wrong in reversing the decision of the Additional District Judge.
The application for eviction was based on the allegation of sub tenancy.
The allegation that the premisses had been sub let to Pavan Trading Company had to be proved as a fact by the landlord and merely on the basis of photograph showing the presence of the son.
Of the proprietor of Pavan Trading Company within the room, sub letting could not be presumed.
We must indicate that the approach of the trial Judge was to tally vitiated.
Merely from the presence of a person other than the tenant in the shop sub letting cannot be presumed.
There may.
be several situations in which a person other than the tenant may be found sitting in the shop for instance, he may be a customer waiting to be attendant a distributor who may have come to deliver his goods at the shop for sale; a creditor coming for collection of the dues; a friend visiting for some social purpose or the like.
As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub letting flowing from the presence of a person other than the tenant in the shop cannot be assumed.
The Act does not require the Court to assume a sub tenancy merely from the fact of presence of an outsider.
Obviously the law has intended and we must assume that the rule in the Abdul 221 Aziz 's case (referred to by the trial court) proceed on the footing A that the person was sitting in the shop in exercise or his own right and not in a situation as indicated by us.
The trial court unwarrantedly drew the presumption and looked at the evidence of the tenant to find out whether the presumption had been rebutted.
There is no warrant in law for such a situation.
The Additional District Judge rightly took exception to this approach to the matter by the trial court and since the evidence of the plaintiff had not been scrutinised under the erroneous impression of the legal position, the same was looked into to find out whether the claim of the sub tenancy had been established.
This was nat an attempt to re assess.
evidence but to take into consideration the evidence which had not been looked into by the trial court.
The revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act is not as wide as the appellate jurisdiction under Section 96 of the Code of Civil Procedure; yet in a case of this type we do not think fault could be found with the revisional court for pointing out the legal error committed by the trial court in its approach to this material aspect.
The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority entitled to Point out the legal error and rectify the defect.
This is all that had been done by the Additional District Judge.
In the case of Syed Yakoob vs K.S. Radhakrishna & Ors., a Constitution Bench of this Court indicated the scope of interference in a certiorari proceeding by saying that a writ of certiorari is issued for correcting the errors of jurisdiction committed by the courts or tribunals in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly.
i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice.
A caution was indicated by saying that the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal.
That necessarily means that the findings of fact arrived at by the inferior court or tribunal are binding.
An error of law apparent on the face of the record could be corrected by a writ of certiorari, but not an error of fact, however, grave it may appear to be.
The rule in Yakoob 's case when applied to the present facts would lead to the conclusion 222 that the High Court exceeded its jurisdiction in interfering with the order of the Additional District Judge.
We are, therefore, inclined to agree with the appellant 's contention that the High Court . wrongly interfered with the decision of the Additional District Judge that the landlord failed to establish sub tenancy.
The circumstances in which the son of the proprietor of Pavan Trading Company was in the shop have been clearly explained and we are inclined to agree that there is no material on the record to doubt the explanation placed by way of evidence in the proceeding.
The appeal is accordingly allowed and the order of the High Court is vacated and that of the Additional District judge is restored.
The net effect is the application for eviction of the appellant tenant is dismissed with costs throughout.
Hearing fee in this Court is assessed at Rs. 1,000.
H.S.K. Appeal allowed.
[/INST]The appellant and the respondents entered into a contract for the construction of Building Dock.
Clause 40 of the General Conditions of Contract entered into between the parties, provided that "all questions and disputes relating to the meaning of the Specifications Estimates Instructions, Designs, Drawing and the quality of the workmanship or materials used in the work or as to another questions, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract or otherwise concerning the execution whether arising during the progress of the work or after completion shall be referred to the Sole Arbitrator etc," During the implementation of the works contract.
disputes arose between the parties in respect of a claim for compensation on account of the increase in the cost of imported pile driving equipment and technical know how fees.
Correspondence was exchanged between the Appellant and Respondent No. 1 and the dispute was referred to the Sole Arbitrator.
The point referred were: (1) Whether the claim of compensation for increase in the cost of imported pile driving equipment and technical know how fees would fall within the purview of the first para of clause 40 of the General Conditions of Contract; and (2) if it does, the quantum of compensation, if any, to which the appellant would be entitled to.
The arbitrator entered upon the reference and after hearing the parties gave his award.
The 119 arbitrator held that the appellant was entitled to compensation for the increase in the cost of imported pile drawing equipment and technical know how fees by a sum of Rs. 99 lakhs which amount shall be payable with interest @ 9.1/2% The award was typed on stamp paper of the value of Rs.150/ The arbitrator forwarded the award to both the parties.
The appellant moved a petition under sections 14 and 17 of the , in the Court of the Subordinate Judge for filing the award and for making it a rule of the Court, while the respondent moved a petition under sections 30 and 33 for setting aside the award contending that: (1) the award was insufficiently stamped, and (2) the arbitrator had exceeded his jurisdiction by misconstruing clause 40.
The Subordinate Judge negatived both the contentions.
It was held that the respondent having submitted the question whether the dispute raised by the appellant was covered by the arbitration clause; could not controvert the jurisdiction of the Arbitrator to decide the dispute; and the award of the arbitrator was modified in the matter of interest from 9.1/2 per cent as awarded by the arbitrator to 6 per cent, and the award was made a rule of the Court.
The respondent preferred an appeal to the High Court, and a Division Bench, agreed with the Subordinate Judge on the question of insufficiency of stamp.
It however held that the question whether the dispute was arbitrable or not could not be finally decided by the arbitrator because it was a matter relating to his jurisdiction, and that the arbitrator cannot by an erroneous interpretation or construction of the clause confer jurisdiction on himself and that the court can go into the question whether the matter in dispute between the parties was covered by the arbitration clause.
It finally held that even though the arbitration clause was very wide, the dispute as to compensation for increase in the cost of imported pile driving equipment and technical know how fees could not be covered by the arbitration clause because under clause 26 every plant, machinery and equipment had to be provided by the contractor and any rise or escalation in the price of such equipment or machinery, cannot be the subject matter of compensation by the respondent.
The appeal was therefore allowed, and the trial court 's order, making the award a rule of the court was set aside and directed that the award be returned to the parties.
In the appeal to this Court it was contended on behalf of the appellant, that though Sec. 16(1)(e) of the may permit the court to remit or set aside the award on the ground that there is an error of law apparent on the face of it, yet where a specific question of law has been referred to the arbitrator for decision, the fact that the decision is erroneous does not make the award bad on its face so as to permit its being set aside.
As a specific question of law touching upon the jurisdiction of the arbitrator was speficially referred to the arbitrator for his decision, the decision of the arbitrator is binding on the parties and the court cannot proceed to inquire whether upon a true construction of the arbitration clause, the dispute referred to the arbitrator for arbitration would be covered by the arbitration clause so as to clothe the arbitrator with the jurisdiction to arbitrate upon the dispute.
On behalf of the respondent, it was contended that the jurisdiction of the arbitrator cannot be left to the decision of the arbitrator so as to be binding on 120 the parties and it is always for the court to decide whether the arbitrator had jurisdiction to decide the dispute, and that the arbitrator cannot by a misconstruction of the arbitration agreement clothe himself with or confer upon himself the jurisdiction to decide the dispute.
Allowing the Appeal; ^ HELD: 1.
A specific question of law touching the jurisdiction of the arbitrator was specifically referred to the arbitrator and therefore the arbitrator 's decision is binding on the parties and the award cannot be set aside on the sole ground that there was an error of law apparent on the face of the award.
It is also established that the claim for compensation made by the contractor which led to the dispute was covered by the arbitration clause.
The quantum of compensation awarded by the arbitrator was never disputed nor questioned.
[170E F] 2.
A question of law may figure before an arbitrator in two ways.
It may arise as an incidental point while deciding the main dispute referred to the arbitrator or in a given case parties may refer a specific question of law to the arbitrator for his decision.
[137G H] Russel: Law of Arbitration Twentieth Edition p.22; Halsbury 's Laws of England Vol.
2 Para 623 4th Edition referred to.
Arbitration has been considered a civilised way of resolving disputes avoiding court proceedings.
There is no reason why the parties should be precluded from referring a specific question of law to an arbitrator for his decision and agree to be bound by the same.
This approach manifests faith of parties in the capacity of the tribunal of their choice to decide even a pure question of law.
If they do so, with eyes wide open, and there is nothing to preclude the parties from doing so, then there is no reason why the court should try to impose its view of law superseding the view of the Tribunal whose decision the parties agreed to abide by.
On Principle it appears distinctly clear that when a specific question of law is referred to an arbitrator for his decision including the one touching upon the jurisdiction of the arbitrator, the decision of the arbitrator would be binding on both the parties and it would not be open to any of the two parties to wriggle out of it by contending that the arbitrator cannot clutch at or confer jurisdiction upon himself by mis construing the arbitration agreement.[138 E G] 4.
If a question of law is specifically referred and it becomes evident that the parties desired to have a decision on the specific question from the arbitrator rather than one from the court, then the court will not interfere with the award of the arbitrator on the ground that there is an error or law apparent on the face of the award even if the view of law taken by the arbitrator does not accord with the view of the court.
[147F] Kelantan Government vs Duff Development Co. Ltd. Re King and Duveen, F.R. Absalom Ltd. vs Great Western (London) Garden Village Society Ltd., ; Durga Prasad Chamria 121 and Anr.
vs Sewkishen das Bhattar and Ors: AIR 1949 Privy Council 334; Seth Thawardas Pherumal vs The Union of India; ; M/s. Alopi Parshad & Sons Ltd. vs The Union of India, ; Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd .
: Law Report ; Union of India vs A.L. Rallia Ram.
, ; ; M/s.
Kapoor Nilokheri.
, Co op.
Dairy Farm Society Ltd. vs Union of India and Others.
, ; N. Chellappan vs Secretary, Kerala State Electricity Board & Anr., ; ; Produce Brokers Co. Ltd. vs Olympia Oil and Cake Co. Ltd., ; Attorney General For Manitoba vs Kelly and Others.
, (1922) H.E.R. 68; Hirji Muulji vs Cheong Yue Steamship Co. Ltd., ; Heyman & Anr.
vs Darwins Ltd., ; Jivarajbhai Ujamshi Sheth & Ors.
vs Chiniamanrao Balaji & Anr., [1954] 5 S.C.R. 480; Dr. S.B. Dutt vs University of Delhi.
, [1958] S.C.R. 1236; referred to.
The expression 'without prejudice ' carries a technical meaning depending upon the context in which it is used.
An action taken without prejudice to one 's right cannot necessarily mean that the entire action can be ignored by the party taking the same.
[148F G] In the instant case, in the context in which the expression 'without prejudice ' is used, it would only mean that the respondent reserved the right to contend before the arbitrator that the dispute is not covered by the arbitration clause.
It does not appear that what was a contention that no specific question was specifically referred to the arbitrator, On a proper reading of the correspondence, and in the setting in which the term 'without prejudice ' is used, it only means that the respondent reserved to itself the right to contend before the arbitrator that a dispute raised or the claim made by the contractor was not covered by the arbitration clause.
No other meaning can be assigned to it.
[148D E] 6.
In works contract of such magnitude, and which have been undertaken by an Indian contractor for the first time negotiations prior to the finalisation of the contact and the correspondence leading to the formation of contract supply the basis on which the contract was finally entered into.
Undoubtedly, if in the final written contract, there is something contrary to the basic understanding during the formative stage of the contract, the written contract would prevail.
But if the contract does not indicate to the contary and the assumptions appeared to be the foundation of the contract, that aspect cannot be overlooked while determining what were the obligations undertaken the formal contract.
[151H 152B] 7.
Over simplification of the clauses of the contract involving works of large magnitude is impermissible.
The whole gamut of discussions, negotiations and correspondence must be taken into consideration to arrive at a true meaning of what was agreed to between the parties.
[156F] In the instant case, there is no room for doubt that the parties agreed that the investment of the contractor under this head would be Rs. 2 crores and the tendered rates were predicated upon and co related to this understanding.[156G] 122 8.
When an agreement is predicated upon an agreed fact situation, if the latter ceases to exist the agreement to that extent becomes irrelevant of otiose.
[156G] 9.
Phrases such as 'claim arising out of contract ' or 'relating to the contract ' or 'concerning the contract ' on proper construction would mean that if while entertaining or rejecting the claim or the dispute in relation to claim may be entertained or rejected after reference to the contract, it is a claim arising out of contract.
The language of clause 40 shows that any claim arising out of the contract in relation to estimates made in the contract would be covered by the arbitration clause.
If it becomes necessary to have recourse to the contract to settle the dispute one way or the other then certainly it can be said that it is a dispute arising out of the contract.
[157F G] In the instant case, the arbitration clause is so widely worded as disputes arising out of the contract or in relation to the contract or execution of the works that it would comprehend, within its compass a claim for compensation related to estimates and arising out of the contract.
[157H] 10.
(i) A dispute, the determination of which turns on the true construction of the contract, would also seem to be a dispute under arising out of or concerning the contract.
The test is that if in settling a dispute, a reference to the contract is necessary, such a dispute would be covered by the arbitration clause.[158D E] A.M. Mair & Co. vs Gordhandas Sagarmull., [1950] S.C.R. 792; Ruby General Insurance Co. Ltd. vs Pearey Lal Kumar And Another; ; ; referred to.
Where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen 'in respect of ' or 'with regard to ' of 'under ' the contract, and an arbitration clause which uses these, or similar expressions should be contoured accordingly.
[159B C] Union of India vs Salween Timber Construction (India) & Ors.
, ; ; Heyman & Anr.
vs Darwins Ltd., at 366; Astro Vencedor Compania Naviora S.A. of Panama vs Mabanaft G.M.B.H.
The Diamianos.
, [1971] 2 Q.B. 588; Gunter Henck vs Andre & CIE. S.A., [1970] 1 Lloyd 's Law Reports 235; referred to In the instant case, from the pleadings, it clearly transpires that both the parties had recourse to the contract.
It is satisfactorily established that the claim made by the contractor would be covered by the arbitration clause.
[160B] 123
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<s>[INST] Summarize the judgementAppeal No. 427 of 1957.
Appeal from the judgment and order dated September 9, 1955, of the Bombay High Court in Income tax Reference No. 31/X of 1954.
K.N. Rajagopal Sastri and D. Gupta, for the appellant.
N. A. ~Palkhivala, section N. ~Andley and J. B. Dadachanji, for the respondents and intervener.
955 1960.
May 4.
The Judgment of the Court was delivered by HIDAYATULLAH J.
The High Court of Bombay in a reference under section 66(1) of the Indian Income tax Act by the Income tax Appellate Tribunal, Bombay, was referred the following two questions for decision: (1) Whether the assessee Company was liable to pay additional income tax ? and (2) If the answer to question No. 1 is in the affirmative, whether the levy of the additional income tax is ultra vires The High Court answered the first question in the negative and in the circumstances, left the second question unanswered.
This appeal is against the judgment and order of the High Court on a certificate granted by it.
The Commissioner of Income tax is the appellant, and the Elphinstone Spinning and Weaving Mills Co. Ltd., Bombay (the assessee Company) is the respondent.
The facts may now be stated briefly.
For the assessment year 1951 52 (the previous year being the calendar year 1950), the assessee Company was found to have incurred a loss of Rs. 2,19,848 and was thus adjudged to be not liable to income tax.
In that year, the assessee Company had made profits, but the depreciation allowance under the Income tax Act came to Rs. 7,84,063, thus converting the profit into loss for income tax purposes.
In the same year, the assessee Company declared dividends &mounting to Rs. 3,29,062.
The Income tax Officer treated this amount as 'excess dividend ' and levied additional income tax as provided in Paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951.
This additional income tax was computed to be Rs. 41,132 12 0.
The contention of the assessee Company that it was not liable to pay additional incometax was not accepted by the Tribunal, but the High Court, on an examination of the relevant provisions and the scheme of the Indian Income tax Act and the Finance Act, 1951, held that it was sound.
Hence this appeal by the Commissioner of Income tax.
We are concerned with the Finance Act, 1951, and Paragraph B of the First Schedule reads: 956 B.
In the case of every company Rate Surcharge On the whole of Four annas one twentieth total income in the of the rate rupee specified in the preceding column: Provided that in the case of a company which, in respect of its profits liable to tax under the Income tax Act for the year ending on the 31st day of March, 1952, has made the prescribed arrangements for the declaration and payment within the territory of India excluding the State of Jammu and Kashmir, of the dividends payable out of such profits, and has deducted super tax from the dividends in accordance with the provisions of subsection (3D) or (3E) of section 18 of the Act (i) Where the total income, as reduced by seven annas in the rupee and by the amount, if any, exempt from income tax, exceeds the amount of any dividends (including dividends payable at a fixed rate) declared in respect of the whole or part of the previous year for the assessment for the year ending on the 31st day of March, 1952, and no order has been made under sub section (1) of section 23A of the Income tax Act, a rebate shall be allowed at the rate of one anna per rupee on the amount of such excess; (ii) Where the amount of dividends referred to in clause (1) above exceeds the total income as reduced by seven annas in the rupee and by the amount, if any, exempt from income tax, there shall be charged on the total income an additional income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess (hereinafter referred to as 'the excess dividend ') falls short of the amount calculated at the rate of five annas per rupee on the excess dividend.
For the purposes of the above proviso, the expression ' dividend ' shall have the meaning assign ed to it in clause (6A) of section 2 of the Income tax Act, but any distribution included in that expression, 957 made during the year ending on the 31st day of March, 1952, shall be deemed to be a dividend declared in respect of the whole or part of the previous year.
For the purposes of clause (ii) of the above proviso, the aggregate amount of income tax actually borne by the excess dividend shall be determined as We, follows: (i) the excess dividend shall be deemed to be out of the whole or such portion of the undistributed profits of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year; (ii) such portion of the excess dividend as is deemed to be out of the undistributed profits of each of the said years shall be deemed to have borne tax, (a) if an order has been made under sub section (1) of section 23A of the Income tax Act, in respect of the undistributed profits of that year, at the rate of five annas in the rupee, and (b) in respect of any other year, at the rate applicable to the total income of the company for that year reduced by the rate at which rebate, if any, was allowed on the undistributed profits.
" The contention of the assessee Company was that inasmuch as there was no income at all which was taxable, the words "OD the total income" (lid not apply to it and no additional income tax could be charged.
The Tribunal interpreted the Paragraph to cover even a case where there was a loss holding that even a loss may be a total income ', because if total income had to be computed in the manner laid down in the Indian Income tax Act, the total income might, be a negative figure.
The Tribunal also held that inasmuch as excess dividend,,; were to be deemed to have come out of the undistributed profits of the preceding year or years and such undistributed profits ",ere available,, the assessee Company was liable.
The High Court did not accept those reasons, and reluctantly held, for reasons which may not be detailed at the present 124 958 moment, that the assessee Company did not come (If within the letter of the law, however much the intention might have been to impose an additional income tax under such circumstances.
The Commissioner now contends that, the High Court ought to have read the Paragraph B as modified by the intention or to have treated it as an independent charging Section.
The liability to tax is imposed not by the Finance Act but by the Indian Income tax Act.
Section 3 of the latter Act is the charging section, and it provides that the tax should be collected at such rate or rates on the total income as laid down in any Central Act.
The Finance Act is an annual Act prescribing the rate or rates.
We are concerned with the Finance Act, 1951.
Section 2 of the Finance Act prescribes the rates of income tax by its First, Schedule, and by the seventh subsection of that section provides: "For the purposes of this section and of the rates of tax imposed thereby, the expression 'total income ' means total income as determined for the purposes of income tax or super tax, as the case may be, in accordance with the provisions of the Income tax Act. " It is thus clear from this that if there is no income, there is no question of applying a rate to the ' total income ' and no income tax or super tax can possibly result.
The Commissioner, however, relies upon the proviso to Paragraph B of the First Schedule, and says that the tax is imposed on excess dividend and if excess dividend is paid out, the liability to tax must arise.
The proviso was framed to discourage the paying of large dividends quite disproportionate to the income.
For this purpose, A ceiling was laid down.
That ceiling was nine annas in the rupee of the total income reduced by any portion of that income which was exempt from income tax.
If only nine annas in the rupee from the income were paid as dividend, there were no consequences in law.
If, however, the dividends paid amounted to less, a rebate of one anna in the rupee in the tax was given.
This was provided by the first part of the proviso.
There was, 959 however, a provision for enhanced tax.
in the second part, which worked the other way round.
Where the dividend distributed exceeded the total income as reduced by seven annas in the rupee, there was charged on the total income an additional, income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess We.
(hereinafter referred to as the " excess dividend ") falls short of the amount calculated at the rate of five annas per rupee on the excess dividend.
In simpler language, there was a rebate of one anna on anything saved from 9/16th of the total income, and there was an extra payment of one anna on the amount paid in excess of it.
The income tax, in either event, was payable on the total income and the additional incometax on the excess dividends.
Now, the difficulty arises in applying this proviso.
Where there is a total income and there is a payment of dividend either more or less than the limit fixed, one can easily find the figures by which the total income as reduced exceeds or falls short of the dividends and the additional tax that has to be paid.
But when the total income is a negative figure and no tax on the total income is levied, the words of the second part of the Paragraph 'total income ', 'profits liable to tax ', 'dividends payable out of such profits ' and ' an additional income tax ', cease to have the meaning they were intended to convey.
The Commissioner contends that some of these words may be ignored as being surplusage or a drafting error, and refers to rulings in which such a course was adopted.
The first case he relies on is Curtis vs Stovin (1).
In that case, the words of the statute were: " It shall be lawful for either party to the action. to apply to a judge of the High Court . to order such action to be tried in any court in which the action might have been commenced, or in any court convenient thereto. " The word " court " was defined as " county court " in that statute.
Lord Esher, M.R., held that the words should be extended to mean " in any county court in which, if it had been a county court action, the action (1) 960 might have commenced".
The ambiguity which would have otherwise arisen was removed by taking aid from the alternative clause " or in any court convenient there to" which referred to locality, and it was said that the first clause meant a county court in the district of which the parties resided, or in which one of them resided.
In that case, however, there were determinative words helping construction.
It is to be noticed that Lord Esher, M. R., also warned against doing by construction what only a legislature could do by enactment, in the following words: " It is, no doubt, very easy for a judge to say that be is introducing words into an Act only by way of construing it, while he is really making a new Act.
" The words " if it had been a county court action " which were read as implicit in the section were necessary to give a sensible meaning consistent with the intention expressed by other clear words.
The above case was applied and followed in Commissioner of Income tax vs Teja Singh(1), which is next relied upon.
In that case, the construction, if literally made, was apt to make one section nugatory.
This Court laid down that "a construction which leads to such a result must, if that is possible, be avoided ".
It, however, quoted also the observations of Lord Dunedin in Whitney vs Commissioners of Inland Revenue (2) that: " A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.
" The next case relied upon is Special Commissioners of Income tax vs Linsleys Ltd. (3).
It dealt with an obvious drafting error.
Section 68(2) of the English Finance Act,1952, contained a reference to Paragraph(a) of the proviso to sub section
(2) of section 262 of the Incometax Act, 1952, and the section went on to say of that Paragraph parenthetically " which relates to the deductions allowable in computing the actual income from all sources of an investment company in relation to which a direction is in force under sub section I of (1) S.C. (2) , 11o.
(3) 961 that section".
As a summary of Paragraph (a), it was entirely wrong and misleading.
Since the Paragraph was there for every one to read, the draftsman 's summary of it in the brackets was not accepted.
Lord Reid observed: " The difficulty does not arise from the enacting words but from the words in brackets which purport to describe the proviso to Section 262(2) of the Income Tax Act, 1952.
Those words could well be held to support the view of the Court of Appeal, but they seem to me to be a misdescription of the proviso to Section 262(2).
This is one of the places where 1 think that obscurity has resulted from a; failure of the draftsman to anticipate a case like the present as I have said, a very natural failure.
In fact the proviso merely deals with the deductions to be allowed in computing actual income.
But the words in brackets in Section 88(2) refer to deductions in computing actual income of a company in relation to which a direction is in force ' under Section 262(1).
It would seem that these words have crept in because the draftsman assumed that a direction would always be given automatically in the case of an investment company and did not realise that a computation must first be made to determine whether the company has in fact any actual income.
Whether that be the true explanation or not, I cannot regard the presence of these words in brackets, which are mere description, as of much weight in comparison with the other considerations to which I have referred.
" If the section was there, its meaning could be taken from the words used there and not from a description of what it enacted, put parenthetically in another statute.
The case cited is hardly in point.
The last case cited is Commissioners of Inland Revenue vs South Georgia Co. Ltd. (1).
The words of a: proviso there construed, ran as follows: " Provided that where the said gross relevant distributions exceed the profits computed without abatement and including franked investment income, (1) 962 the net relevant distributions shall be. " (section 34(2) of the English Finance Act, 1947).
The word " including "gave some difficulty.
In the Court of Session, the word was equated to " adding " correcting, as it was felt, a drafting inaccuracy.
In the House of Lords, however, this change was not accepted and a meaning was found.
The learned counsel for the respondent, on the other hand, relies upon the observations of Rowlatt, J., in The Cape Brandy Syndicate vs The Commissioners of Inland Revenue (1) to the effect that in a taxing measure one can only look at the language since there is no room for an intendment.
He also refers to the speech of Lord Simonds in Wolfson vs Commissioners of Inland Revenue (2), where the following passage occurs at p. 169: " It was urged that the construction that I favour leaves an easy loophole through which the evasive taxpayer may find escape.
That may be so; but I will repeat what has been said before.
It is not the function of a court of law to give to words a strained and unnatural meaning because only thus will a taxing section apply to a transaction which, had the Legislature thought of it, would have been covered by appropriate words.
It is the duty of the Court to give to the words of this Sub section their reasonable meaning and I must decline on any ground of policy to give to them a meaning which, with all respect to the dissentient Lord Justice, I regard as little short of extravagant.
It cannot even be urged that unless this meaning is given to the Section it can have no operation.
On the contrary, given its natural meaning it will bring within the area of taxation a number of cases in which by a familiar device tax had formerly been avoided." The learned counsel contends that the artificial construction should not be resorted to in this case.
There is no doubt that if the words of a taxing statute fail, then so must the tax.
The Courts cannot, except rarely and in clear cases, help the draftsman by a favourable construction.
Here, the difficulty is not one of inaccurate language only.
It is really this (1) , 366, (2) , 169.
963 that a very large number of taxpayers are within the words but some of them are not.
Whether the enactment might fail in the former case on some other ground (as has happened in another case decided to day) is not a matter we are dealing with at the moment.
It is sufficient to say here that the words do not take in the modifications which the learned counsel for the appellant suggests.
The word ' additional ' in the expression 'additional income tax ' must refer to a state of affairs in which there has been a tax before.
The words 'charge on the total income ' are not appropriate to describe a case in which there is no income or there is loss.
The same is the case with the expression 'profits liable to tax '.
The last expression ' dividends payable out of such profits ' can only apply when there are profits and not when there are no profits.
It is clear that the legislature had in mind the case of persons paying dividends beyond a reasonable portion of their income.
A rebate was intended to be given to those who kept within the limit and an enhanced rate was to be imposed on those who exceeded it.
The law was calculated to reach those persons who did the latter even if they resorted to the device of keeping profits back in one year to earn rebate to pay out the same profits in the next.
For this purpose, the profits of the earlier years were deemed to be profits of the succeeding years.
So far so good.
But the legislature failed to fit in the law in the scheme of the Indian Income tax Act under which and to effectuate which the Finance Act is passed.
The legislature used language appropriate to income, and applied the rate to the ' total income '.
Obviously, therefore, the law must fail in those cases where there is no total income at all, and the Courts cannot be invited to supply the omission made by the legislature.
It is quite possible that the legislature did not con template the imposition of tax in circumstances such as these, and we are not prepared to read the proviso without the words on the total income ' or after modifying this and other expressions.
The High Court has given adequate reasons to show that these words are quite inappropriate, where the total income, if it 964 can be described as income at all, is a loss.
The imposition of the additional.
income tax is conditioned by the existence of income and profits, to the total of which income the rate is made applicable.
Unless some other amount, not strictly income, is by law deemed to be income (see for example, McGregor & Balfour Ltd. vs Commissioner of Income tax (1)), we cannot improve the existing law by deeming it to be so by our interpretation.
The Commissioner next contends that the proviso speaks of excess dividends, which means that dividends in excess of the permissible limits have been paid.
He sayS that where the income is nit or a negative figure, whatever is paid is excess dividend, and indeed, the Tribunal also felt that the excess dividends in this case were more because of the loss sustained.
This argument has a familiar ring, It is really that " you can have more than nothing ".
Reference was made in this connection to Commissioners of Inland Revenue vs South Georgia Co. Ltd. (2) where Lord Simonds observed at p. 736: " Upon this proviso, interpreted in the light of Paragraph "of the Schedule as amended, the Crown makes a very simple case: upon the undisputed figures the gross relevant distributions were pound 181,000, and the profits including franked investment income were nil (I may interpolate that the reference to abatement may throughout be disregarded) : therefore the net relevant distribution must be the excess of pound 181,000 over nil, i.e., pound 181,000: nothing has to be brought in under (a ' of the proviso, for there were no profits.
" Reliance was also placed upon the observations at p. 737 (ibid) where it was observed : ,,The learned Dean of Faculty on behalf of the Respondents urged, in support of the construction that he invited your Lordships to adopt, that it was really meaningless to speak of a nil profit or of adding something to it, and this plea found favour with the Lord President.
As I understood it, this was only relevant if the view was accepted that there were two separate operations and not a single (1) (1950] S.C. (2) [[1958] 965 computation.
In the view which I take, therefore, it does not arise, but I think it right to say that I see no impropriety of language in ,;peaking of a nil profit where the question is whether any or what profit has been made.
And the answer would be equally valid in the case of an exact balance or of a loss.
" These passages were used in the other case decided today, in which there were no profits of the previous years.
There is, however, this difficulty that there the tax was laid on the net relevant distribution, and it was conceded that no charge could be imposed if the proviso was inapplicable (see p. 736).
The provisions of Paragraph 7 of the Schedule as amended by section 32 of the English Finance Act, 1947, were entirely different, and the proviso to section 34(2) of the English Act was held applicable.
The scheme of the provisions we are interpreting is entirely different.
Reliance was also placed upon Rajputana Agencies Ltd. vs Commissioner of Income tax (1), but we find nothing there to support the appellant 's case.
Similarly, in McGregor and Balfour Ltd. vs Commissioner of Income tax(1), the words were held to be apt ' to impose a charge '.
It is obvious enough that unless they were so or unless the Act covered the instant cases, the tax must fail.
The gist of the matter is not the possibility of an arithmetical calculation as in the English case.
The rate in the proviso is applicable to the 'total income ' though after the application of a simple arithmetical calculation.
The 'total income ', however, is still the total income as determined for the purpose of incometax, and in the case of businesses, the rules require that the total income shall not include the depreciation allowance.
By the application of those rules if the total income ceases to exist, the second paragraph of the proviso, as it is worded, ceases to be workable.
All the four expressions to which we have referred earlier cease to have natural meaning, and the Com missioner is again driven to contend that we must delete the offending words or suitably modify them.
This we are not prepared to do, because the intention might well have been not to comprehend such cases.
(1) 125 (2) S.C. 966 The Commissioner next contends that we may treat this as an independent charging section and give effect to it.
The proviso is to Paragraph B in the First Schedule of the Finance Act, and the Schedule only imposes a rate of tax and this rate, either by itself or with rebate or with additional tax at a higher rate, has to be applied to the total income.
The extra tax under the second part of the proviso, though called an additional tax, is only the difference between the tax charged at one rate and the tax subsequently chargeable at another rate.
The function of the proviso is thus to prescribe varying rates for varying circumstances, and it deals with rate or rates, first and last, and not with chargeability to tax, which is the subjectmatter of section 3 of the Income tax Act.
There are no words here making the excess dividend into income or subjecting it to tax independently of the charge to tax on the total income.
We are thus unable to treat the proviso as an independent charging section.
In this view of the matter, no useful purpose will be served by referring to those cases noted by this Court in Commissioner of Income tax vs Calcutta National Bank Ltd. (1), where a schedule which went beyond the purpose for which it was enacted was given effect to.
The proviso here was framed to lay down the rates, and has done no more.
It remains to consider two other arguments, which were addressed to us on behalf of the Commissioner.
The first pointed out an anomaly that if there was a total income of even one rupee, the proviso could be made applicable according to its terms but not if the income was nil or negative.
The Commissioner contended that such an anomaly should be avoided, and that the proviso should be interpreted in such a way as to take in all the kinds of cases.
Our answer to this is much the same as was given by the learned Chief Justice of the Bombay High Court.
The learned Chief Justice observes: " There seems to be no logic, there seems to be no reason nor principle why a distinction should be made between the cases of two such companies.
But if life is not logic, income tax is much less so, (1) 967 and it is clear that we cannot impose tax upon a subject by implication or because we think that the object of the legislature was a particular object.
" We respectfully agree with the learned Chief Justice that though the interpretation we have placed upon the proviso might lead to some anomalies, it is for the legislature to avoid the anomalies which, according to us, spring not from our interpretation but from the language employed.
The second argumeint is that the proviso itself states that the excess dividend shall be deemed to be out of the undistributed profits of one or more years immediately preceding the previous year, and that the fiction makes the profits take the place of total income for purposes of tax.
In our opinion, the fiction cannot be carried further than the purpose for which it has been put in the statute.
The Income tax Act creates an assessment year and a corresponding previous year.
Assessment to tax in any assessment year can only be in respect of the profits of the immediately preceding previous year.
All that the fiction does is to bring profits of back years into the immediately preceding previous years, so that the requirements of the Income tax law may be complied with.
As we have already stated, this fiction cannot be carried further than what it is intended for; it cannot be used to make these profits take the place of total income, which did not exist in the previous year and to which the rate is to be applied under the terms of the proviso.
We do not accept both the arguments, and agree with the High Court in the answer given to the first question.
As pointed out by the High Court, the second question does not survive, after the first question is answered against the Department.
In the result, the appeal fails, and will be dismissed width costs.
Appeal dismissed.
[/INST]The assesses held the managing agency of a limited company in what was then called " British India and had also a pharma 728 ceutical business in the Baroda State which was at the relevant time an Indian State.
The business in British India showed profits assessable under the provisions of the Business Profits Tax Act, 1947, but the business carried on in Baroda resulted in a loss, in the relevant chargeable accounting periods between 1946 and 1949.
Before the Income tax authorities the assessee claimed that the loss suffered by it in its business in Baroda should be deducted in computing its business income liable to business profits tax, but this claim was rejected on the ground that though under section 5 Of the Act, if it stood by itself without any of the provisos, the Act would be applicable to the Baroda business, the third proviso had the effect of excluding that business from the purview of the Act, except in so far as the income, profits or gains of the business were received or deemed to be received in or brought into British India: Held, that the effect of the third proviso to section 5 of the Business Profits Tax Act 1947, was merely to exempt the income, profits and gains of the Baroda business except when they were received or brought into British India, but the business itself was one to which the Act was applicable under the substantive part Of section 5.
Consequently, the losses of the business could be set off against the profits of the business in British India.
The relevant provisions of the Act are set out in the judg ment.
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<s>[INST] Summarize the judgementCivil Appeal Nos.4353 54 of 1983 etc.
From the Judgment and Order dated 7.3.1983 of the Orissa High Court in O.J.C. No. 1517 of 1978.
A.K. Ganguli, G. Ramaswamy, T.S. Krishnamurthy Iyer, Dr. 114 L.M. Singhvi, Shanti Bhushan, P. Chidambram, R.B. Datar, T.V. S.K. Iyer, V.A. Bobde B.Sen, M.S. Gujral, R.F. Narinan, P.H. Parekh Ms. Shalini, Soni, K.K. Lahiri, J.B.Dadachanji, S.Sukumaran, P.N.Gupta, R.K. Mehta, A.K.Panda, Sakes Kumar, Ashok Singh, Satish Agnihotri, D. Goburdhan, D.N. Mishra, Shri Narain, Abhey Sapra, Sandep Narain, Mrs. Kirti Misra, Harish N.Salve, S.R. Grover, K.J.John, M.P. Sharma, Ms. Deepa Dixit, Sanjay Parekh, Praveen Kumar, Darshan Singh, K.V. Srekumar, T.G.N.Nair, B.R.Agrawal, S.K. Bagga, Mrs. S.K.Bagga, Rameshwar Nath and A.M. Dittia for the appearing parties.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are connected batches of Civil Appeals and Special Leave Petitions.
We grant special leave to appeal in all the petitions (condoning the delay in the filing of the unnumbered one referred to below) and proceed to dispose of all the appeals by this common judgment.
The details of the appeals and petition are, for sake of convenient reference, tabulated below: High Court Date of Civil Appeal/ Name of Judgment SLP Nos.
Appellant 1.
Orissa 17.4.1980 C.A.2053 2080/80 Tata Iron & Steel Co. Ltd. 7.3.1983 C.A.4353 4354/83 Orissa Cement Ltd. 22.12.1989 S.L.P. 1479/90 State of Orissa 22.12.1989 S.L.P. /90 Orient Paper & Industries Ltd. & Anr.
13.7.1990 S.L.P.11939/90 do 2.
Bihar 10.2.1986 C.A. 592/86 Tata Iron & Steel Co. Ltd. 3.
Madhya 28.3.1986 C.A. 1641 1662/86 State of M.P. Pradesh We shall discuss later the manner in which these appeals and petitions have arisen.
115 THE ISSUE The validity of the levy of a "cess", based on the royalty derived from mining lands, by the States of Bihar, Orissa and Madhya Pradesh is challenged in these petitions and appeals.
A seven Judge Bench of this Court in India Cement, struck down a similar levy under a Tamil Nadu Act as beyond the legislative competence of the State Legislature.
The assessees, in the matters now before us, claim that the issue here is directly and squarely governed by the above decision.
The State, on the other hand, claim that the nature and character of the levies imposed by them is totally different from that of the Tamil Nadu levy and that they are entirely within the scope of the States ' Legislative powers under the Constitution.
This is the issue to be decided in these matters.
As the impugned enactments of Bihar, Orissa and Madhya Pradesh mutually differ from one another in some respects, they will need separate consideration.
However, the basic issue being the same, all these matters have been heard together and it is found convenient to dispose of them all by this common judgment.
We may mention in passing that, initially, these matters were listed before a Bench of two Judges of this court.
It referred the matters on 17.8.1990 to the learned Chief Justice for the constitution of a larger Bench.
The matters have come up before us in pursuance of the directions of the Hon 'ble Chief Justice.
THE LEGISLATIVE ENTRIES It will be convenient, at the outset, to refer to the various entries of the Union and the State Lists in the Seventh Schedule to the constitution which have a bearing on the issues to be discussed.
These are: List I (Union List) Entry 52: Industries, the control of which by the Union declared by Parliament by law to be expedient in the public interest.
Entry 54: Regulation of mines and mineral development to the extent to which such regulation and development under the control of Union is declared by Parliament by law to be expedient in the public interest.
116 List II (State List) Entry 18: Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; improvement and agricultural land; colonization.
Entry 23: Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.
Entry 45: Land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues.
Entry 49: Taxes on lands and buildings.
Entry 50: Taxes on mineral rights subject to nay limitations imposed by Parliament by law relating to mineral development.
Entry 66: Fees in respect of any of the matters in this List, but not including fees taken in any court.
EARLIER HISTORY Before proceeding to consider the provisions of the enactments impugned, and the issues debated, before us, it is necessary to set out certain earlier controversies that led to India Cement.
Hingir Rampur Case As early as in 1960, this Court had to consider the constitutional validity of the Orissa Mining Areas Development Fund Act, 1952 (Orissa Act XXVII of 1952).
section 3 of the Act empowered the State Government to constitute mining areas whenever it appeared to the Government that it was necessary and expedient to provide amenities 117 life communications, water supply and electricity for the better development of such areas or to provide for the welfare of the residents or workers in areas within which persons employed in a mine or a group of mines reside or work.
S.4 empowered the State Government to impose and collect a cess or fee on the minerals extracted the rate of which was not to exceed 5% of the valuation of the minerals at the pit 'smouth.
S.5 provided for the constitution of the Orissa Mining Areas Development Fund.
The proceeds of the cess recovered in pursuance of S.4 along with other subsidies from Government, local authorities and other public subscriptions were credited to the fund and the expenses for such collection debited thereto.
The fund has to be utilised to meet expenditure incurred in connection with such development measures as the State Government might draw up for the purposes above mentioned as well as for the purposes specified in clauses (a) to (e) of S.5(5).
The validity of this levy of cess was challenged by the petitioner coal company in the Hingir Rampur case as ultra vires the powers of the State Legislature because (a) the cess was not a fee but a duty of excise on coal which was a field covered by Entry 84 of List I in the Seventh Schedule and repugnant to the Local Mines Labour Welfare Fund Act, 1947 (Central Act XXXII of 1947); and (b) even if it was treated as a fee relatable to Entries 23 and 66 of List II in the Seventh Schedule, it was hit by Entry 54 of List I read with the Mines and Minerals (Development & Regulation) Act, (Central Act LIII of 1948) (`the MMRD Act ' for short) or by Entry 52 of List I read with the Industries (Development and Regulation) Act (`the IDR Act ' for short), 1951 (Central ACt LXV of 1951).
The first of the above arguments was based on the fact that the cess was fixed at a percentage of the valuation of the mineral concerned at pit 's mouth.
This argument was based on two considerations.
The first related to the form and the second to the extent of the levy.
Repelling the argument, it was held that the extent of levy of a fee would always depend upon the nature of the services intended to be rendered and the financial obligations incurred thereby and cannot by itself alter the character of the levy from a fee into the of a duty of excise except where the correlation between the levy and services is not genuine or real or where the levy is disproportionately higher than the requirements of the services intended to be rendered.
So far as the first consideration was concerned, it was observed that the method in which the fee is recovered is a matter of convenience and by itself it cannot fix upon the levy the character of a duty of excise.
Though the method in which an impost is levied may be relevant in determining its character its significance and effect cannot be exaggerated.
The court, therefore, came to the conclusion that the cess levied by the impugned act was 118 neither a tax nor a duty of excise but a fee.
The second argument turned on the impact of the MMRD Act on the State 's power to levy a fee under Entry 66 read with Entry 23 of List II as a consequence of the declaration contained in S.2 of the Central Act.
The Court agreed that a declaration by Parliament in terms of Entry 54 of List I operated as a limitation on the legislative competence of the State Legislature itself and observed: "if Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded.
In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the field occupied by the impugned Act, the impugned Act would be ultra vires not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law." (underlining ours) However, the answer to the argument was easily found by the Court inasmuch as the declaration on the terms of Entry 54 of List I relied on for the coal company was founded on Act LIII of 1948 which was an Act of the Dominion Legislature and not an Act of Parliament.
However, the Court did not stop here.
It proceeded to review the provisions of Central ACt LIII of 1948 and concluded that, if this Act were held to contain the declaration referred to in Entry 23, there would be no difficulty in holding that the declaration covered the field of conservation and development of minerals, and that the said field was indistinguishable from the field covered by the impugned Act.
In coming to this conclusion the Court pointed out that the rule making powers conferred on the Central Government under Section 6(2) of the Act included the levy and collection of royalties, fees and taxes in respect of minerals, mines, quarried excavated or collected.
The circumstance that no rules had in fact been framed by the Central Government in regard to the levy and collection of any fees, it was held, would not make any difference, The Court observed: "What Entry 23 provides is that the legislative competence of the State Legislature is subject to the provisions of List I with respect to regulation and development under the con 119 trol of the Union, and Entry 54 in List I requires a declaration by Parliament by law that regulation and development of mines should be under the control of the Union in public interest.
Therefore, if a Central Act has been passed for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be competent to the State Legislature to pass an Act in respect of the subject matter covered by the said declaration.
In order that the declaration should be effective it is not necessary that rules should be made or enforced; all that this required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the control of the Union.
In such a case the test must be whether the legislative declaration covers the field or not.
Judged by this test there can be no doubt that the field covered by the impugned Act is covered by the Central Act LIII of 1948.
" The Court then considered the argument based on Entry 52 of List I and the provisions of the IDR Act but came to the conclusion that the vires of the impugned Act could not be successfully challenged on this ground.
Wanchoo J., delivered a separate dissenting judgment.
He held that the levy was not a fee or a land cess but a duty of excise.
He pointed out (at p 579 80) how taxes could be turned into fees on the so called basis of quantification with the help of the device of creating a fund and attaching certain services to be rendered out of monies in the fund.
In this view, he did not consider the question how far the Central Acts of 1948 and 1951 impaired the State 's competence to levy the fees in question.
He negatived the State 's attempt to bring the levy in question (treating it as a tax) within the scope of Entry 50 of List II.
He was of opinion that the expressions "taxes on mineral rights" referred to taxes on the right to extract minerals and not taxes on the minerals actually extracted.
He held that the cess in the present case was not a tax on mineral rights but a tax on the minerals actually produced.
It was no different in pith and substance from a a tax on goods produced which comes under Item 84 of List I as duty of excise.
Tulloch case ; The same issue regarding the competence of the Orissa State Legislature to levy the very same cess came up for consideration again 120 in the Tulloch case.
The scenario had changed because the levy now challenged was in respect of the period July 1957 to March, 1958 by which time the MMRD Act, 1957 (Central Act (Central Act LIII of 1948).
The 1948 Act, which had earlier provided for the regulation of mines and oil fields and for the development of minerals, was now limited only to oil fields and the 1957 Act provided for the regulation of mines and mineral development.
S.2 of the 1957 Act, like the predecessor 1948 Act, contained the following declaration in terms of Entry 54 of List I.
It read: "It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided".
but unlike the earlier one this was a declaration contained in an Act of Parliament which had the effect of impairing the legislative competence of the State under Entry 23 read with Entry 66 of the State List.
The hurdle which prevented the Supreme Court from considering the provisions of the 1948 Act as a bar to the levy of the cess was therefore out of the way.
The Court analysed in detail the provisions of the impugned State Act as well as the two Central Acts.
It referred to its conclusion in the Hingir Rampur case that the field covered by the impugned State Act was covered by the 1948 Act and observed that this fully applied to the State Act vis a vis the 1957 Act also, particularly as Ss.
18(1) and (2) of the 1957 Act were wider in scope and amplitude and conferred larger powers on the Central Government than the corresponding provisions of the 1948 Act.
Counsel for the State attempted to distinguish the ambit of the 1957 Act from that of the 1948 Act.
But the Court pointed out that the argument could not prevail.
section 13 of the 1957 Act contained an express provision for the levy of a fee.
section 25 though not as categorically as section 6 of the 1948 Act clearly implied a power to levy "rent, royalty, tax, fee and other sums" a nd, besides, section 18 of the Central Act of 1957 were wider in scope and amplitude and conferred larger powers on the Central Government than the corresponding provisions of the Act of 1948.
It was reiterated, referring to Hingir Rampur and distinguishing Ch.
Tika Ramji & Ors.
vs The State of Uttar Pradesh & Ors., ; that it was incorrect to think that, until rules were made under section 13 or steps taken under S.25 to collect fees etc., the Central Act would not cover the field.
The Court observed, further: 121 "But even if the matter was res integra the argument cannot be accepted.
Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other.
But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other.
The test of two legislations containing contradictory, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance.
Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation.
In the present case, having regard to the terms of section 18(1) it appears clear to us that the intention of Parliament was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no supersession of the State Act".
Meeting the argument that the power to levy a fee was an independent head of legislative power under each of the three legislative lists and that the levy of tax undue the State Act could be traced to this entry, the Court pointed out the fallacy underlying the argument in the following words: "The materials words of the Entries are: "Fees in respect of any of the matters in this List".
It is, therefore, a prerequisite for the valid imposition of a fee that it is in respect of a "matter in the list".
If by reason of the declaration by Parliament the entire subject matter of "conservation and development of minerals" has been taken over, for being dealt with by Parliament, thus depriving the State of the power which it theretofore possessed, it would follow that the "matter" in the State List is, to the extent of the declaration, subtracted from the scope and ambit of Entry 23 of the State List.
There would, therefore, after the Central Act of 1957, be "no matter in the List" to which the fee 122 could be related in order to render it valid.
" The result was that Tulloch declared the levy of the cess to be invalid and it was held that, as and from 1.6.1958, the date on which the 1957 Act came into force, the Orissa Act should be deemed to be non existent for every purpose.
Murthy case We now come to the third important case on the topic, Murthy vs Collector of Chittoor, which seems to strike a somewhat different note although in both Tulloch and Murthy the judgments were delivered within a few month of each other by Rajagopala Ayyangar J. on behalf of 5 Judge Benches which were constituted differently.
The erstwhile Province of Madras (later State of Tamil Nadu) had been levying, since long, a cess on land revenue under the Madras District Boards Act (Madras Act XIV) of 1920.
Under S.78 of the Act, a cess was levied on the annual rent value of all occupied lands on whatever tenure held.
It was a tax at two annas in the rupee of the annual rent value of all lands ins the district.
The annual rent value of the land was to be calculated in the manner prescribed in S.79 of the Act.
The appellant held certain lands under a mining lease (for extraction of iron ore) from the Government which stipulated for the payment of a stipulated amount of dead rent, a royalty on the basis of every ton of ore mined as well as a surface rent per acre of the surface area occupied or used.
In the case of such lands, S.79(i) provided that "the lease amount, royalty or other sum payable to the Government for the lands" shall be taken to be the such lands, annual rent value.
The appellant was, therefore, called upon to pay a cess based on the royalty paid by him to the State Government (of Andhra Pradesh, which had succeeded to the State of Madras in respect of the territories in question) and it was the validity of this levy which was upheld by the High Court that came up for the consideration of this Court.
It was contended, on behalf of the appellant, relying on Hingir Rampur and Tulloch, that the provision imposing land cess quoad royalty must be held to be repealed by MMRD Act of 1948 or, in any event, by the MMRD Act, 1957 (Central Act LXVII of 1957) and that, after the date when these enactments came into force, the land cess that could be levied must be exclusive of royalty under a mining lease.
Distinguishing the decisions cited, this Court rejected the contention.
It observed: 123 "It will be seen that there is no resemblance, whatever, between the provision of the Orissa Act considered in the two decisions and the provision for the levy of the land cess under sections 78 and 79 of the Act with which we are concerned.
Sections 78 and 79 have nothing to do and are not concerned with the development of mines and minerals or their regulation.
The proceeds of the land cess are, under s.92 of the Act, to be credited to the District fund, into which, under the terms of the Finance Rules in section V to the Act, the land cess as well as several other taxes, fees and receipts are directed to be credited.
This fund is to be used under Ch.
VII of the Act with which s.112 starts "for everything necessary for or conducive to the safety, health, convenience or education of the inhabitants or the amenities of the local area concerned and everything incidental to the administration" and include in particular the several matters which are mentioned in those sections.
It will thus be seen that there is no connection between the regulation and development of mines and collection of land cess for which provision is made by ss.78 and 79 of the Act.
There is therefore no scope at all for the argument that there is anything in common between the Act and the Central Acts of 1948 and 1957 so as to require any detailed examination of these enactments for discovering whether there is any over lapping" A second contention raised before the Court was that, as the impugned land cess was payable only in the event of the lessee winning the mineral and not when no minerals were extracted, it was in effect a tax on the minerals won and, therefore, on mineral rights.
Rejecting this contention, the Court observed: "We are unable to accept this argument.
When a question arises as to the precise head of legislative power under which a taxing statue has been passed, the subject for enquiry is what in truth and substance is the nature of the tax.
No doubt, in a sense, but in a very remote sense, it has relationship to mining as also to the mineral won from the mine under a contract by which royally is payable on the quantity of mineral extracted.
But that does not stamp it as a tax on either the extraction of the mineral or on the mineral right.
It is unnecessary for the purpose of this case 124 to examine the question as to what exactly is a tax on mineral rights seeing that such a tax is not leviable by Parliament but only by the State and the sole limitation on the State 's power to levy the tax is that it must not interfere with a law made by Parliament as regards mineral development.
Our attention was not invited to the provision of any such law enacted by Parliament.
In the context of ss.78 and 79 and the scheme of those provisions it is clear that the land cess is in truth a "tax on land" within Entry 49 of the State List".
(emphasis added) The Court proceeded to explain why the land cess before it was nothing else except a land tax falling within Entry 49.
"Under section 78 of the Act the cess is levied on occupied land on whatever tenure held.
The basis of the levy is the "annual rent value" i.e., the value of the beneficial enjoyment of the property.
This being the basis of the Tax and disclosing its true nature, s.79 provides for the manner in which the "annual rent value" is determined i.e., what is the amount for which the land could reasonably be let, the benefit to the lessor representing the rateable value "or the annual rent value".
In the case of ryotwari lands it is the assessment which is payable to the Government that is taken as the rental value being the benefit that accrues to the Government.
Where the land is held under lease it is the lease amount that forms the basis.
Where land is held under a mining lease, that which the occupier is willing to pay is accordingly treated as the "annual rent value" of the property.
Such a rent value would, therefore, necessarily include not merely the surface rent, but the dead rent, as well as the royalty payable by the licensee, lessee or occupier for the user of the property.
The position then is that the rent which a tenant might be expected to pay for the property is, in the case of lease hold interests, treated as the statutory "annual rent value".
It is therefore not possible to accept the contention, that the fact that the lessee or licensee pays a royalty on the mineral won, which extended only to the mere use of the surface land, places it in a category different from other types where the lessee uses the surface of the land alone.
In each case the rent 125 which a lessee or licensee actually pays for the land being the test, it is manifest that the land cess is nothing else except a land tax.
" The judgment of the Supreme Court in the Murthy case (supra) held the field from 1964 to 1990.
Murthy followed: The above type of levy was not peculiar to the State of Tamil Nadu.
In fact, a cess on royalty was bound to be very remunerative to States having a wealth of mineral resources.
We are informed that similar cess is being levied in several States.
We have already referred to the cess levied in Orissa which came to be considered by this Court as early as 1961 and 1964 in the Hingir Rampur and Tulloch cases.
Further cases came up for consideration, on the same lines; in Bihar, Associated Cement Co. Ltd. vState of Bihar, and Tata Iron & Steel Co. vs State, (C.W.J.C. 30/1978 decided on 15.5.84 , the subject matter of C.A. 592/86 before us); in Orissa, Laxmi Narayan Agarwala vs State, A.I.R. 1983 Ori.
210; in Rajasthan, Bherulal vs State, A.I.R. 1965 Raj. 161; in Punjab, Sharma vs State, A.I.R, ; in Gujarat, Saurashtra Cement & Chemical Industries Ltd. vs Union, ; and Madhya Pradesh, Hiralal Rameshwar Prasad vs State, (m.P. 410/83 decided on 28.3.1986) and M.P. Lime Manufactures ' Association vs State of M.P., A.I.R. 1989 M.P. 264 F.B. and, except for the last two cases from Madhya Pradesh, the others upheld the levy of a cess which depended on royalties, following Murthy.
India Cement case The correctness of the above line of decisions came to be tested in India Cement Ltd. vs State.
The Government of Tamil Nadu and granted a mining lease on 19.7.1963 to the appellant for extraction of limestone and kankar for a period of twenty years.
The lease deed, which was in accordance with the Mineral Concession Rules, stipulated for the payment of royalty, dead rent and surface rent and also provided that the lessee was bound to pay all Central and State Government dues except land revenue.
At the time the lease was obtained, S.115(1) of the Madras Panchayats Act.
1958 provided for the levy, in each panchayat development block, of a local cess at the rate of 45 paise on every ruupee of land revenue payable to the Government in respect of any land for every fasli.
section 115(2) provided that the 126 local cess will be deemed to be public revenue and all the lands and buildings thereon shall be regarded as security therefore.
S 115(3) and (4) set out the various purposes for which the cess levied and collected under section 115 could be utilised.
S116 provided for the levy of a local cess surcharge.
The maximum amount of such surcharge was originally left to be prescribed by the Government and was in 1970 limited to Rs.1.50 on every rupee of land revenue and in 1972 to Rs.2.50 on every rupee of land revenue.
Apparently inspired by the decision in Murthy, the Tamil Nadu Panchayats (Amendment and Miscellaneous Provisions) Act (Tamil Nadu Act 18 of 1964) added, with full retrospective effect, the following Explanation to S.115(1): "Explanation: In this section and in Section 116, `land revenue ' means public revenue due on land and includes water cess payable to the government for water supplied or used for the irrigation of land, royalty, lease amount or other sums payable to the government in respect of land held direct from the government on lease or licence, but does not include any other cess or the surcharge payable under Section 116, provided that lands revenue remitted shall not be deemed to be land revenue payable for the purpose of this section".
The appellants ' challenge in the High Court to this levy which was consequent on the 1964 amendment was unsuccessful.
The High Court upheld it as a "tax on land" measured with reference to land revenue, royalty or lease or other amount as mentioned in the Explanation.
The challenge based on Entry 54 of List I read with Entry 23 of List II and the provisions of the MMRD Act, 1957 was also repelled, applying the decision in Murthy.
The appeal to this Court was referred to a Bench of seven Judges who came to the conclusion that Murthy dity of the levy of the cess.
It may be necessary to refer, in greater detail, to some passages in the judgment later but it will be convenient,.
for the present, to summarise the salient conclusions of the Court.
These were: 1.
The levy could not be supported under: (a) Entry 45 of List II: as it is not a tax on land revenue, an expression which has a well defined connotation.
`Land revenue ' is separate and distinct from `royalty.
The Explanation to S.115(1) itself proceeds on the basis that royalty cannot be land revenue 127 properly so called or conventionally so known.
(b) Entry 49 of List II: as it is not a tax on land.
A tax on land can only be levied on tax as a unit, must be imposed directly on land and must bear a definite relationship to it.
There is a clear distinction between a tax directly on land and a tax on income arising from land.
The cess is not a tax directly on land as a unit but only a tax on royalty which is indirectly connected with land.
In the words of Oza.
J. it is a tax not only on land but on labour and capital as well.
It could have been treated as a tax on land if it had been confined to `surface rent ' instead of `royalty.
(c) Entry 50 of List II: as a tax on royalty as it is not a tax on mineral rights and so is outside the purview of Entry 50.
Even otherwise, Entry 50 is subject to the provisions of List I and is, therefore, subject to the declaration contained in, and the purview of, the MMRD Act 1957.
Even if the cess is regarded as a fee, the State 's competence to levy the same can, if at all, only be justified with reference to Entry 23 and Entry 50 of List II but this recourse is not available as the field is already covered by Central Legislation referable to Entry 54 of List I. 3.
Murthy was not rightly decided.
The view of the Rajasthan, Punjab, Gujarat and Orissa decisions was overruled.
In the view taken by the Court, i.e. Madhya Pradesh ruling was not examined n detail, particularly as it was said to be pending in appeal before the Supreme Court.
In issue before us now are the levies of cesses based on royalty from lands containing minerals by the States of Orissa, Bihar and Madhya Pradesh.
Since the relevant statutes vary in detail and the parties concerned have also taken different stands, emphasising different aspects, the arguments have to be considered and dealt with separately, We may, however, mention that the appeals before us include those in the cases of Laxmi Narayan Agarwalla (Orissa).
land Harilal Rameshwar Prasad (Madhya Pradesh) noticed earlier.
THE VARIOUS ENACTMENTS ORISSA The invalidation in 1961 of Orissa Act XXVII of 1952 in Hingir Rampur apparently rendered it necessary for the State to bring in fresh 128 legislation.
The Orissa enactment with which we are now concerned is the Orissa Cess Act (Orissa Act IIof 1962) as amended by Act 42 of 1976.
According to the Statement of Objects and Reasons accompanying the bill, the primary objective of the legislation is to condense and simplify the existing law on the subject by consolidating the different enactments, customs and usages relating to the levy of cess in the State, to cure defects and deficiencies therein and to introduce uniformity in the levy of cess throughout the State.
The Act proposed to adopt a uniform rate of 25 paise in the rupee of the annual rental value and distribute the entire gross collection among the zilla parishads, panchayat samithis (referred to as `samithis ' in the Act) and grama panchayats in the ratio 5:8:12 respectively thus providing them with enhanced revenues to enable them to discharge their statutory responsibilities more efficiently by taking up development works and providing better amenities to the people of the State.
Its principal provisions are as follows: (i) Under Section 4, from and after the commencement of the Act, all lands (other than lands which were not liable to payment of rent or revenue before 1.4.77 and lands which were subject to a tax on land holdings sunder a 1950 Municipal Act) are made liable to the payment of cess (in addition to any land revenue, tax, cess rate or fee otherwise payable in respect thereof) determined and payable "as herein provided".
A 1976 amendment makes it clear that `lands held for carrying on mining operations" ar not exempt from the cess.
(ii) The "rate of cess, assessment [and] fixation of cess year" are dealt with by S.5 which originally read thus: "5.(1) The cess shall be assessed on the annual value of all lands on whatever tenure held calculated in the manner hereinafter appearing.
(2) The rate per year at which such cess shall be levied shall be twenty five percentum of the annual value of the land.
(3) x x x" Sub section(2) was amended by Act 13 of 1970 by substituting of 50% in place of 25% but a 1982 amendment inserted S.5A to provide that for a period 1.4.1977 to 31.3.1980, the cess would be levied at 25% of the annual value in respect of lands held for carrying on mining 129 operations.
section 5 was again amended by Act 15 of 1988 w.e.f. 26.10.1988 to read thus: "(2) The rate at which such cess shall be levied shall be.
a) in case of lands held for carrying on mining operations in relation to any mineral, on such percentum of the annual value of the said lands as specified against that mineral in Schedule II; and b) in case of other lands fifty percentum of the annual value.
Clause (a) was again amended by Act 17 of 1989 to read thus: "(a) in the case of land held for carrying on mining operations in relation to any mineral, such percentum of the annual value as the State Government may, by notification, specify from time to time in relation to such mineral".
It will thus be seen that, in place of a fixed rate, an elasticity was provided for, initially, by requiring the rates to be specified in the Schedule differently for different minerals.
Schedule II prescribed the percentage which the cess was to bear to the annual value; the percentages varied from 650% in the case of sand, to 300% in the case of coal, 200% in respect of certain minerals such as iron ore, limestone, manganese ore (except those meant for export or cement manufacture), 150% in the case of certain other minerals and 100% in respect of the rest.
Further elasticity was provided for in 1989 by leaving it to the Government to vary the rates by a simple notification.
In consequence of this amendment, Schedule has been omitted and a notification has been issued prescribing the percentage of the royalty or the dead rent (as the case may be) that is to be levied as the cess in respect of various items of specified minerals.
The rates specified are 650%, 400%, 300%, 200% and 150%.
In respect of all minerals not specified in the notification, the rate of cess is to be 100% of the royalty or dead rent.
(iii) S.6 specifies the person by whom the cess is payable.
In so far as is material for our present purposes, it directs that the cess is payable "(c) by a person for the lands he holds for carrying on mining operations and shall be paid by him to the Government".
This clause was inserted in S.6 simultaneously with the amendment of S.5 by Act 42 of 1976.
130 (iv) "Annual value" is defined in S.7 thus: "7.
Annual Value (1) The annual value of lands held by a raiyat shall be the rent payable by such raiyat to the land lord immediately under whom he holds the land: x x x x x x (2) In the case of lands held as an estate the annual value shall be the aggregate of (a) the amount which the intermediary is entitled to receive on account of revenue or rent less the amount payable by such intermediary as revenue to the intermediary immediately superior to him or to the Government, as the case may be; and (b) the rent, if any, payable held for carrying on mining operations, the annual value shall be the royalty or, as the case may be, the dead rent payable by the person carrying or mining operations(s) to the Government.
" The Explanation to the section defines "dead rent" and "royalty" in terms of their definitions in the MMRD Act,1957.
It also states the "royalty" would include "any payments made or likely to be make to the Government for the right of raising minerals from the land which shall be calculated on every tone of such minerals despatched from the land at the same rate as prescribed under the said Act or such other rate as may be fixed by the Government but not exceeding the amount which would have been otherwise payable as royalty under the said Act".
Act 17 of 1989 also amended S.7(3) to red thus: "(3) In the case of lands held for carrying on mining operations, the annual value shall be the royalty or, as the case may be, the dead rent payable by the person carrying on mining operations(s) to the Government or the pit 's mouth value wherever it has determined".
This was apparently intended to regulate the cess on coal in respect of which the pit 's mouth value had been determined.
So a notification 131 dated 14.8.89 was issued to provide that the cess in respect of coal bearing lands would be 30% of the pit 's mouth value of the said mineral.
(v) Sections 8 to 9B provide for the assessment of the cess in respect of various cases.
S.9B, inserted by the 1976 amendment, provided: "9B Assessment of cess on lands held for mining operations: (1) The cess payable in respect of lands held for carrying on mining operations shall be assessed in the prescribed manner.
(2) Nothing contained in Sections 8,9 and 9A shall apply in relation to the assessment of cess in respect of the aforesaid lands: The prescribed manner of such assessment had been already set out in the Orissa Cess Rules, 1963.
Rule 6A, inserted in 1977, deals with this but it is unnecessary for us to consider the details except to mention that it is assessed and collected, along with the amount of royalty or dead rent, by the Mining Officer concerned.
(vi) S.10 also needs to be referred to.
It originally read thus: "10.
Application of proceeds of the cess: (1) Notwithstanding anything contained in any other law the amount collected as cess shall be credited to the Consolidated Fund of the State and shall be utilised in the following manner, namely: (a) amounts collected in respect of lands within the local limits of any Municipality or Notified Area constituted under the Orissa.
Municipal Act, 1950 shall be paid to the concerned Municipal Council or Notified Area Council, as the case may be; and (b) amounts other than those referred to in clause (a) shall be distributed in the prescribed manner among the Grama Panchayats, Samitis and Parishads in the ratio of twelve is to eight is to five.
132 Explanation In this section "Grama Panchayat" mean a Grama panchayat constituted under the Orissa Grama Panchayats Act, 1948 and "Samiti" and "Parishad" respectively mean the Samiti and Parishad constituted under the Orissa Panchayat Samiti and Zila Parishad Act, 1964 and "Samiti" means a panchayat samiti constituted under the Orissa Panchayat Samitis Act 1959.
Orissa Act 13 of 1970 substituted the following section for the above: "10 Application of proceeds of the cess.
(1) Notwithstanding anything contained in any other law, the amount collected as cess shall be credited to the Consolidated Fund of the State and shell be utilised for the following purposes, namely: (a) primary education; (b) contribution to Grama Panchayats; and (c) contribution to Samitis.
Explanation In this section"Grama Panchayat" means & Grama Panchayat constituted under the Orissa Panchayat Samitis Act, 1959.
(2) The proportion in which the amount collected as cess is to be allotted for the said purpose shall be as may be prescribed.
As substituted by Act 42 of 1976, it reads: "10.
Application of proceeds of the cess: (1) Notwithstanding anything contained in any other law, all amounts collected as cess shall be credited fifty percentum of those which represent cess collected in respect of lands, other than lands held by carrying on mining operations, shall be utilised for the following purposes, namely: (a) primary education; (b) contribution to Grama Panchayats: and (c) contribution to Samitis.
(2) The allotment of amounts to be utilised for the pur 133 poses mentioned in clause (a) , (b) and (c) of sub section(1) shall be made in such proportion as may be prescribed" BIHAR We shall now turn to the relevant provisions of the Bihar Act.
Bihar is governed in this respect by the provisions of the Bengal Cess Act (Act IX of 1880).
It is sufficient to refer to the provisions of Sections 4 to 6,9 and to certain notifications.
(i) A definition of `royalty ' was introduced in S.4 of the Act by an ordinance of 1975.
It was amended by the Bihar Finance Act, 1981 and then by the Bihar Finance Act, 1982.
The definition as amended, w.e.f.
1.4.1982, by the latter reads as follows: "royalty for the purpose of this Act in respect of mines and quarries means payment (which includes dead rent) made or likely to be made to the owner of mines and minerals for the right of working the same on the quantity or value of such produce by a lessee if the land had been under a lease granted under MMRD Act, 1957, and rules made thereunder and includes any amount which Government may demand from the appropriation of mines and minerals belonging to the Government and any amount that may be paid as or in lieu of royalty for the right of working mines and quarries in areas held or acquired under any Act or agreement".
At the end of the section it added the following `interpretation clause ': "Valuation of mineral bearing land" means with reference to assessment of local cess in any year on land held for working mines and quarries the value at pit 's mouth of all the mineral extracted form the land in that year and the Explanation, which defines the value at pit 's mouth of a mineral; (ii) S.5 provided that, from and after the commencement of this Act, in any district or part of a district, all immovable property situate therein except otherwise in Section2 provided shall be liable to the payment of a local cess.
134 (iii) Section 6, again, is a much amended section, As substituted by Ordinance No.209 of 1975 dated 2.12.75, it read: "6.
Cess has to be assessed: The local cess shall be assessed on the annual value of lands and until provision to the contrary is made by the Parliament on the royalty of mines and quarries, sale value of the other immovable properties including forest produce and annual net profits from tramways and railways as contained respectively as prescribed in this Act and the rate at which the local cess shall be levied for each other shall be (a) in the case of royalty, the rate will be determined by the government from time to time but it will not exceed the amount of royalty; (b) in the case such annual net profits, fifteen paise on each rupee of such profits; (c) in the case of annual value of lands, twenty paise per rupee of the annual value; and (d) in the case of sale value of immovable properties including first produce, the rate will not exceed 10% and the State Government may, by notification, prescribe from time to time the commodities on the sale of which cess would be levied along with the rate at which it would be levied".
It was amended by a series of Bihar Cess (Amendment) ordinances between 1975 and 1982 .
It was further amended by the Finance Act, 1982 (w.e.f. 1.4.82), the Finance Act, 1984, the Finance Act, 1985 (w.e.f. 1.8.1985) and the Bihar Cess (Amendment) Ordinance, 1985, After the last of these amendments, the section stood thus: "S.6.
Cess how to be assessed: The local cess shall be assessed on the annual value of the lands and, until provision to the contrary is made by the Parliament, on the royalty of mines and quarries or on value of mineral bearing land as the case may be, sale value of other immovable properties including forest produce and annual net profits from tramways and railways ascertained respectively as prescribed in the Act and the rate at which the local cess 135 shall be levied for each year shall be (a) in the case of royalty, the rate will be determined by the Government from time to time but it will not exceed five times the amount of royalty, provided that the local cess payable in any one year shall not be less than the amount arrived at by multiplying the dead rent with the rate of cess determined undo clause (a); (aa) in the case of value of mineral bearing land, where the local cess payable in any year in respect of any mineral bearing land as assessed in clause (a) is less than 30 per cent of the value of mineral bearing land in that year, then, notwithstanding anything hereinbefore contained, the State Government may assess the local cess at such percentage of the value of the mineral bearing land, not exceeding [of] 30 per cent, as may be notified in the Official Gazette from time to time although the cess so assessed may exceed five times the amounts of royalty; (b) in the case of annual net profit, fifteen paise on each rupee of such profits; (c) in the case of annual value of land, twenty five paise per rupee of the annual value; and (d) in the case of sale value of immovable properties including first produce, the rate will not exceed 30 per cent and the State Government may , be notification prescribe from time to time the commodities on the sale of which cess would be levied along with the rates at which it would be levied".
The Bihar Cess (Amendment) Ordinance, 1987 (replaced by Act 3 of 1988) substituted 40% for 30% in clause (aa).
(iv) S.9 of the Act deals with the application of the proceeds of cess.
It has been amended from time to time, inter alia in 1976, 1977, 1978, 1979, 1980, 1981 and 1982.
After all these amendments, the section stood thus: "9.
Application of the proceeds of cess: The proceeds of local cess and all sums levied or recovered as interest or 136 otherwise shall in each district be paid in the district fund (i) at such rate as may, from time to time, be determined by the State Government in the case of local cess on annual value of land; and (ii) at such rate as may, from time to time, be determined by the State Government, subject to a maximum of twenty per cent in case of local cess on royalty of mines and quarries, or value of mineral bearing land, sale value of other immovable properties, forest produce and annual net profit from tramways and railways and the remaining amount shall be deposited in the consolidated fund of the State for the construction and maintenance of other works of public utility; xxx xxx xxx xxx xxx Provided further that out of the remaining amount not less than ten percent of the amount of the local cess collected under clause (a) or clause (aa) of Section 6 shall be spent for purposes relating to mineral development ' '.
(v) In exercise of the powers conferred by section 6 above, the State Government issued a notification on 20.11.80 determining the rate of cess on the amount of royalty of all minerals of the State at 100% w.e.f. 1.2.1980.
Our attention has also been drawn to, and some print made of, a notification dated 20.4.85 by which the State Government, modifying the earlier notification of 1.10.1981, determined the rate of cess ``on the amount of royalty of iron ore which is extracted from manually operated iron ore mines ' ' at 100% w.e.f. 1.10.84 which was followed up by a notification dated 20.11.85 enhancing the rate at 300% on the amount of royalty of iron ore w.e.f.21.6.85 in respect of mines other than those in which the ore is extracted manually.
Other notifications were also issued determining the rate of cess in respect of other minerals as indicated below : Date of Effective Mineral Rate Notification Date 20.11.85 21.6.85 Bauxite Ore, sand 500% for stowing 20.11.85 21.6.85 Copper Ore and 300% uranium 20.11.85 21.6.85 Lime stone and kynite 200% 20.11.85 21.6.85 Coal 30% of pit 's mouth value or 500% on the amount of royalty whichever is greater 137 Madhya Pradesh: In Madhya Pradesh, two statutes have to be considered: The first is the Madhya Pradesh Upkar Adhiniyam, 1981 (Act 1 of 1982).
It provides for the levy of an energy development cess (Part I), an urban development cess (Part II), a cess on transfer of vacant land (Part III), and a cess on storage of coal (Part IV).
The Act provided that the cesses levied under Parts I and IV should first be credited to the Consolidated Fund of the State but subsequently withdrawn and credited to a separate Electrical Development Fund [Ss.3(2)] and Coal bearing Area Development Fund [section 12(1)] and that the amounts to the credit of the funds as well as the cesses collected under Parts II and III should be utilised for special purposes connected respectively with energy development [S.3(3)] development of coal bearing areas [S.12(2)] urban development [section 7(2)] and rural development [section 9(5)].
Act 21 of 1987 changed Part IV into a part dealing with ``cess on land held in connection with mineral rights ' ' with full retrospective effect.
Part IV, as now substituted, deals only with ``land situate in the State and held under a mining lease for undertaking mining operations in relation to major mineral including operations for raising, winning or extracting coal ' '.
Section 11 and 12 read thus: ``Section 11: There shall be levied and collected a cess on land held in connection with mineral rights at such rate as may be notified by the State Government per ton of major mineral raised and the rate of cess prevailing in respect of coal during the period commencing from the date of commencement of the Principal Act and ending on the date of commencement of the Madhya Pradesh Upkar (Sanshodhan) Adhiniyam, 1987, shall be deemed to be the rate of cess notified under this sub section in respect of coal: Provided the subject to the limitation mentioned above the State Government may, by notification, increase or 138 reduce the rate of cess at an interval of not less than one year, where the rate is increased it shall not be in excess of fifty per cent of the rate for the time being in force; Provided further that every notification under the above proviso shall be laid on the table of the Legislative Assembly and the provisions of Section 24 A of the Madhya Pradesh General Clauses Act, 1957 (No. 3 of 1958) shall apply thereto as they apply to rule.
(2) The rate of cess to be notified for the first time in exercise of the powers conferred by Sub section (1) shall be effective from the [first of] April, 1987.
(3) The cess levied under sub section (1) shall, subject to and in accordance with the rules made in this behalf, be assessed and collected by such agencies and in such manner as may be prescribed.
(4) The agencies prescribed under sub section (3) shall for the purpose of assessment, collection and recovery of cess and all matters connected therewith, exercise such of the powers conferred upon the authorities specified in section 3 of the Madhya Pradesh General Sales Tax Act, 1958 (No. 2 of 1959) for the purpose aforesaid in respect of sales tax under said Act and the rules made thereunder, as may be prescribed as if such agencies were the authorities specified in the section 3 and the cess on land held in connection with mineral rights were the tax levied under the said Act.
Section 12 : The proceeds of the cess on land held in connection with the mineral rights may be utilised by the State Government for the general development of the mineral bearing areas. ' ' Section 12 has, however been omitted by an Amending Act of 1989, again, with full retrospective effect i.e. from 1.10.1982.
It appears, however, that there was in force in Madhya Pradesh w.e.f. 1.11.1982 another statute levying mineral development cess.
It was the M.P. Karadhan Adhiniyam, 1982 (Act 15 of 1982) as amended by M.P. Acts 1983 and 13 of 1985 which was challenged before the 139 M.P. High Court in Hiralal Rameshwar Prasad vs State and other connected cases.
The Madhya Pradesh Karadhan Adhiniyam, 1982, was enacted by State Legislature ``to provide for levy of school building cess, forest development cess and mineral areas development cess and matters incidental thereto ' '.
Part II of the Act deals with the school building cess.
Section 5 therein requires the holder of every holding of six hectares and above to pay the school building cess as provided therein.
The proceeds of the school building cess are required by S.4 to be credited to a separate Fund supplemented by a State contribution equal to 50% thereof and utilised for construction and furnishing of primary school buildings in non urban areas.
Part III of the Act deals with the forest development cess.
Section 7 imposes forest development cess on every sale or supply for forest produce by the Forest Department.
The proceeds thereof are to be credited to a separate Fund and utilised for social forestry, afforestation, reforestation, forest rehabilitation and other purposes connected with forest development.
Then comes Part IV dealing with the mineral areas development cess, the provisions of which are relevant for the purpose of these appeals and it is the charging provision therefor contained in Section 9 which has been attacked as constitutionally invalid.
The Section read thus: ``9. Levy of mineral areas development cess on land under mining lease ' '.
(1) There shall be levied and collected on the land held under a mining lease for undertaking mining operation a mineral areas development cess at the rate of twenty five percent of the rental value thereof.
(2) For the purpose of sub section (1), rental value shall be equal to the royalty or dead rent, as the case may be, whichever is higher.
(3) The mineral areas development cess shall be payable by person to whom the mining lease is granted.
(4) The mineral areas development cess shall, subject to and in accordance with the rules made in this behalf, be collected by such agencies and in such manner as may be prescribed and shall be applied towards development of mineral bearing areas ' '.
140 The 1983 amendment substituted the following sub section (1) in Section 9: ``(1) There shall be levied and collected on the land held under a mining lease for undertaking minor operations for a major mineral, a mineral areas development cess at the rate of one hundred percentum o the rental value thereof ' '.
The 1985 amendment substituted the following sub section in place of the above w.e.f.
1.8.1985: ``(1) There shall be levied and collected (a) on the land held under mining lease for undertaking mining operations for a major mineral other than coal a mineral areas development cess at the rate of one hundred percentum of the rental value thereof; (b) on the land held under mining lease for undertaking mining operations for coal, a mineral area development cess at the rate of the hundred twenty five percentum of the rental value thereof ' '.
and also made a provision for payment of interest on arrears of cess.
Rules have been framed under this Act called ``The Madhya Pradesh Mineral Areas Development Cess Rules, 1982 ' '.
Rule 3 provided for the collection of the cess every month along with the royalty or dividend.
Rule 10 thereof is alone relevant for the purpose of these partitions and read as under: ``10.
Application of cess: The State Government shall decide from time to time the manner in which the amount collected from cess shall be utilized for the development of mining lease areas ' '.
In 1985, an amendment substituted the words ``mineral bearing ' ' for the words ``mining lease ' ' in this rule.
It will be seen that, unlike the cesses referred to in Part I and III, the Act did not provide for the creation of a separate Fund for the mineral areas development cess.
The manner of utilisation thereof was also left to the discretion of the State Government though it had to be spent for development of mineral bearing areas.
141 THE CONTENTIONS ORISSA In the historical and statutory context set out above, the attempt of Sri T.S. Krishnamurthy Iyer, learned counsel for the State of Orissa to save the impugned legislation of the State is two fold.
First, he points out that in India Cement the statute, by Ss. 115 and 116, imposed a cess and surcharge on `land revenue ' and the explanation to section 115 defined `land revenue ' to mean `royalties '.
In other words that was a clear case of direct cess or Tax on royalties.
Here, on the other hand, s.5 makes it clear that what the legislature has provided for is a tax assessed on the annual value of all lands, on whatever tenure held, calculated at a percentage of the annual value of the land.
section 7, which defines `annual value ', provides for different measures for determining the annual value in respect of lands held under different kinds of tenures; and, in the case of lands held for mining operations, the measure of such annual value is the royalty or dead rent paid to the Government.
On a proper construction of the statute, he submits, the cess levied is a cess or tax on land and the `royalty ' is only taken as a measure for determining the quantum of tax.
He contends that India Cement only forbids a cess or tax on royalty as such and not a cess or tax on land, which may be measured by reference to the royalty derived from it.
He presses in aid of his argument the well marked distinction between the subject matter of a tax and its measure outlined, amongst others, in Ralla Ram 's case [1948] F.C.R.207 at pp.
218, 224 and Bombay Tyre International v Union, [1984] 1 S.C.C.487 at pp.
481 4.
This argument, Sri Iyer contended, is based on the statutory language used in the Orissa Cess Act, 1962 and should prevail independently of the correctness or otherwise of Murthy, Secondly, he submitted that `royalty ' is not a tax and the cess on royalty is also not a tax but only a fee.
This view is supported, he said, by the limitations imposed in the statute on the modes of its utilisation.
Being a fee, the State Legislature 's competence to impose it has to be determined with reference to Entry 23 read with Entry 66 of the State List.
So doing, the validity of the levy has to be upheld as, in counsel 's submission, the declaration contained in, and the provisions of, the MMRD Act, 1957 do not, in any way whittle down or impair this competence.
Basically, it will seen, two questions arise (1) Can the cess be considered as ``land revenue ' ' under Entry 45 or as a ``tax on land ' ' under Entry 49 or as a ``tax 142 on mineral rights ' ' under Entry 50 of the State List? (2) If the answer to question (1) is in the negative, can the cess be considered to be a fee pertaining to the field covered by Entry 23 of the State List or has the State been denuded of the legislative competence under this Entry because of Parliament having enacted the MMRD Act, 1957? Taking up the first question, the attempt to bring the levy under Entry 45 of the State List proceeds in two steps.
First, land revenue is the sovereign 's share of the proceeds of the land belonging to the sovereign and is represented, in the case of land containing minerals, by the payment of royalty to the Government.
Second, the cess, being an accretion to royalty, partakes of the same character.
This argument, however, must fail in view of the categorical observations of the Supreme Court in india Cement, (vide paras 20 and 21) as to the connection of the expression `land revenues '.
At least, in India Cement, the statute sought to include royalty within the meaning of `land revenue ' but there is no such provision in the Orissa Act and, this being so, royalty or the tax thereon cannot be equated to land revenue.
The cess here cannot be, therefore, brought under Entry 45.
Turning next to Entry 50, though Murthy left open the question how far a levy of this nature can be considered to be a tax on mineral rights (vide page 676), India Cement has chosen to approve the contrary view of Wanchoo J. in his dissenting judgment in Hingir Rampur (para 30).
Actually, it appears that the observations of Wanchoo J. have not been fully examined.
The learned Judge held that the tax in the case before him was not a tax on mineral rights because it was levied on the value of the minerals extracted.
If his observations in this context are read as a whole, it would seem that he also was of opinion that a tax on royalty would be a tax on mineral rights, for he observed (at pp.
582 3): `The next contention on behalf of the State of Orissa is that if the cess is not justified as a fee, it is a tax under item 50 of List II of the Seventy Schedule.
Item 50 provides for taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development.
This raises a question as to what are taxes on mineral rights.
Obviously, taxes on mineral rights must be different from taxes on goods produced in the nature of duties of excise.
If 143 taxes on mineral rights also include taxes on minerals produced, there would be no difference between taxes on mineral rights and duties of excise under item 84 of List I. A comparison of List I and II of the Seventh Schedule shows that the same tax is not put in both the Lists.
There fore, taxes on minerals rights must be different from duties of excise which are taxes on minerals produced.
The difference can be understood if one sees that before minerals are extracted and become liable to duties of excise somebody has got to work the mines.
The usual method of working them is for the owner of the mine to grant mining leases to those who have got the capital to work the mines.
There should therefore be no difficulty in holding that taxes on mineral rights are taxes on the right to extract minerals and not taxes on the minerals actually extracted.
Thus tax on mineral rights would be confined, for example, to taxes on leases of mineral rights and on premium or royalty for that.
Taxes on such premium and royalty would be taxes on mineral rights while taxes on the minerals actually extracted would be duties of excise.
It is said that there may be cases where the owner himself extracts minerals and does not give any right of extraction to somebody else and that in such cases in the absence of mining leases or sub leases there would be no way of leaving tax on mineral rights.
It is enough to say that these cases also, rare though they are, present no difficulty.
Take the case of taxes on annual value of buildings.
Where there is a lease of the building, the annual value is determined by the lease money; but there are many cases where owners themselves live in buildings.
In such cases also taxes on buildings are levied on the annual value worked out according to certain rules.
There would be no difficulty where an owner himself works the mine to value the mineral rights on the same principles on which leases of mineral rights are made and then to tax the royalty which, for example, the owner might have got if instead of working the mine himself he had leased it out to somebody else.
there can be no doubt therefore that taxes on mineral rights are taxes of this nature and not taxes on minerals actually produced.
Therefore the present cess is not a tax on mineral rights; it is a tax on the minerals actually produced.
Therefore the present cess is not a tax on mineral rights; it is a tax on the minerals actually produced and can be no different in pith and substance from a 144 tax on goods produced which comes under Item 84 of List I, as duty of excise.
The present levy therefore under section 4 of the Act cannot be justified as a tax on mineral rights.
However, the conclusion of India Cement is clear that a tax on royalties cannot be a tax on minerals and we are bound thereby.
This apart, we shall also advert, while discussing the second question, to another hurdle in the way of the State 's attempt to have recourse to Entry 50, which has also been touched upon by India Cement.
Can, then, the cess be described as a tax on land ' '? The Status considered in India Cement, as Sri Iyer correctly points out, was differently worded.
It purported to levy a cess on land revenue and `royalty ' was brought within the definition of that expression.
It was therefore, a case where they levy had no reference to land at all but only to the income from the land, in the case of Government lands, got by way of land revenue or otherwise.
Here the Statute is different.
The objective of the Cess Act as set out earlier, is to levy a cess on all land.
Indeed, originally the idea was to levy a uniform cess at 25% of the annual value of all land which was subsequently raised to 50%.
It is argued that the tax here is, therefore, a tax on land and it is immaterial that this tax is quantified with reference to the income yielded by the land.
A tax on land may be levied, inter alia with reference to its capital value or with reference to its annual value.
One realistic measure of such capital or annual value will be the income that the land will yield just as, for property tax purposes, the annual value is based on the amount for which the property can reasonably let from year to year.
The income from the land may be more or less due to a variety of reasons.
In the case of agricultural lands, it may depend on the fertility of the soil, the sources of irrigation available, the nature of crops grown and other such factors.
Likewise, where the land is one containing minerals, naturally the value (whether annual or capital value) will be more if it contains richer minerals and can be legitimately measured by reference to the royalties paid in respect thereof.
the mere fact, it is argued, that the annual value is measured with reference to the royalty, dead rent or pit 's mouth value of the mineral does not mean that it ceases to have the character of a tax on land.
In this context, Sri Iyer places strong reliance on the decision of a Constitution Bench of this Court in Ajay Kumar Mukherjea vs Local Board of Barpeta, [1965]3 S.C.R. 47.
There a local Board was authorised to ``grant. a license for the use of any land as a market and impose an annual tax thereon ' '.
The Court held, examining the Scheme and the language of the provision in question, that the tax imposed was a tax 145 on land under Entry 49.
The Court indicated the following approach to the issue before it: ``The first question which falls for consideration therefore is whether the impost in the present case is a tax on land within the meaning of Entry 49 of List II of the Seventh Schedule to the Constitution.
It is well settled that the entries in the three legislative lists have to be interpreted interpreted in their widest amplitude and therefore if a tax can reasonably be held to be a tax on land it will come within Entry 49.
Further it is equally well settled that tax on land may be based on the annual value of the land and would still be a tax on land and would not be beyond the competence of the State legislature on the ground that it is a tax on income: see Ralla Ram vs The Province of East Punjab, [1948] F.C.R.207.
it follows therefore that the use to which the land is put can be taken into account in imposing a tax on it within the meaning of entry 49 of List II, for the annual value of land which can certainly be taken into account in imposing a tax for the purpose of this entry would necessarily depend upon the use to which the land it put.
It is in the light of this settled proposition that we have to examine the scheme of section 62 of the Act which imposes a tax under challenge. ' ' On the other hand, it is contended for the respondents that, whatever may have been the original intention, the true and real impact of the cess is only on the royalties.
It is said that, at any rate, after the amendments of 1976, when lands held for mining operations were segregated for levy of separate and steep rates of cess based on royalty, the ostensible appearance of levying a tax on all land with reference to annual value has disappeared and a direct, undisguised tax on royalties from mining lands has taken its place.
it is urged that, for deciding whether the tax is really a tax on land as in Murthy or whether it is really a tax on royalties which has been struck down in India Cement, it is not the form or the statutory machinery that matters; one has to look at the real substance and true impact of the levy.
If this is done, it is said, there can be no doubt that the cess impugned here suffers from the same vice that vitiated the levy in India Cement.
The decision of this Court in Buxa Dooars Tea Co. vs State, was referred to by Sri G.Ramaswamy, learned 146 counsel for Orient Paper Mills, in support of this contention.
In that case, this Court was concerned with a cess levied annually.
Initially section 4(2) of the relevant statute levied the cess: ``(a) in respect of lands, at the rate of six paise on each rupee of development value thereof; (b) in respect of coal mines, at the rate of fifty paise on each tonne of coal on the annual dispatches therefrom; (c) in respect of mines other than coal mines and quarries, at the rate of six paise on each rupee of annual net profits thereof ' '.
With effect from 1.4.1981, clause (a) above was amended and clause (aa) inserted to provide for the levy of cess ``(a) in respect of land other than a tea estate, at the rate of six paise on each rupee of development value thereof; (aa) in respect of a tea estate at such rate, not exceeding rupees six on each kilogram of tea on the dispatches from such tea estate of tea grown therein, as the State Government may, by notification in the Official Gazette, fix in this behalf: Provided that in calculating the dispatches of tea for the purpose of levy of rural employment cess, such dispatches for sale made at such tea auction centres as may be recognised by the State Government by notification in the Official Gazette shall be excluded: Provided further that the State Government may fix different rates on dispatches of different kinds of tea ' '.
Sub section (4) was added in Section 4 to enable the State Government, if it considers necessary so to do, by notification in the Official Gazette, to exempt such categories of dispatches or such percentage of despatches from liability to pay the whole or any part of the rural employment cess or reduce the rate of rural employment cess payable thereon, under clause (aa) of sub section (2), on such terms and conditions as may be specified in the notification.
With effect from 1.10.1982, the first proviso to clause (aa) was omitted.
It was contended 147 for the tea estate, inter alia that the above levy violated the provisions of Article 301 of the Constitution and was also beyond the legislative competence of the State Government.
Upholding these contentions, the Court observed: ``The question then is whether the impugned levy impedes the free flow of trade and commerce throughout the territory of India and, if it does, whether it falls within the exception carved out in article 304(b).
If the levy imposes a cess in respect of tea estate, it may will be said that even though the free flow of trade is impeded in its Government throughout the territory of India, it is in consequence of an indirect or remote effect of the levy and that it cannot be said that article 301 is contravened.
The contention of the petitioners is, however, that it is ostensibly only in respect of tea estate but in fact it is a levy on despatches of tea.
If that contention is sound, there can be no doubt that it constitutes a violation of article 301 unless the legislation is brought within the scope of article 304(b).
To determine whether the levy is in respect of tea estates or is a levy on despatches of tea, the substance of the legislation must be ascertained from the relevant provisions of the statute.
It cannot be disputed that the subject of the levy, the nature of which defines the quality of the levy, must not be confused with the measure of liability, that is to say, the quantum of the tax.
There is a plenitude of case law supporting that principle, among the cases, being Union of India vs Bombay Tyre International, [1984] 1 S.C.R.347.
But what is the position here?. .
Now, for determining the true nature of the legislation, whether it is a legislation in respect of tea estate and therefore of land, or in respect of despatches of tea, we must, as we have said take all relevant provisions into account and ascertain the essential substance of it.
It seems to us that although the impugned provisions speak of a levy of cess in respect of tea estates, what is contemplated is a levy on despatches of tea instead.
The entire structure of the levy points to that conclusion.
If the levy is regarded as one in respect of tea estates and the measure of the liability is defined in terms of the weight of tea dispatched, there must be a nexus between the two indicating relationship between the levy, on the tea estate and the criteria for determining the 148 measure of liability.
If there is no nexus at all it can conceivably be inferred that the levy is not what it purports to be.
The statutory provisions for measuring the liability on account of the levy throws light on the general character of the tax as observed by the Privy Council in Re: A Reference under the Government of Ireland Act, 1920 and Section 3 of the Finance Act (Northern Ireland), 1934 [1963] 2 A.E.R. III.
In R.R. Engineering Co. vs Zilla Parishad, Barielly, ; this Court observed that the method of determining the rate of levy would be relevant in considering the character of the levy.
All these cases were referred to in Bombay Tyer International Ltd.; , where in the discussion on this point at page 367 this Court said: Any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy ' '.
Applying the above tests to the case before it, the Court reached the conclusion that, in substance the impugned levy was a levy in respect of despatches of tea and not in respect of tea estates.
It was then pointed out that the question of legislative competence also turned on this issue: ``If this impugned legislation were to be regarded as a levy in respect of the estates, it would be referable to entry 49 in List II of the Seventh Schedule of the Constitution which speaks ``taxes on lands and buildings ' '.
But if the legislation is in substance legislation in respect of despatches of tea, legislative authority must be found for it with reference to some other entry ' ' Pointing out that no such entry in List II or III had been brought o its notice and further that, under S.2 of the Tea Ct, 1953, control over the tea industry has been assumed by Parliament within the meaning of Entry 54 of List I, the Court upheld the challenge to the competence of the State legislature to levy the impugned cess.
it is submitted that, likewise, here the levy is one in substance on royalties and not one on land.
There is force in the contention urged by Sri T.S.K. Iyer that there is a difference in principle between a tax on royalties derived 149 from land and a tax on land measured by reference to the income derived therefrom.
That a tax on building does not cease to be such merely because it is quantified on the basis of the income it fetches is nowhere better illustrated than by the form of the levy upheld in Ralla Ram, followed by Bhagwan Dass Jain; , which illustrates the converse situation.
Mukherjea (supra) also supports this line of reasoning.
But here the levy is not measured by the income derived by the assessee from the land, as is the case with lands other than mineral lands.
The measure of the levy is the royalty paid, in respect of the land, by the assessee to his lessor which is quite a different thing.
Moreover, interesting as the argument is, we are constrained to observe that it is only a reiteration of the ratio in Murthy which has been upset in India Cement.
We may point out that this is of significance because, unlike in India Cement, the statute considered in Murthy, as the one here, only purported to levy a cess on the annual value of all land.
India Cement draws a ``clear distinction between tax on land and tax on income arising from land ' '.
The former must be one directly imposed on land, levied on land as a unit and bearing a direct relationship to it.
In para 23 of the judgment, the Court has categorically stated that a tax on royalty cannot be said to be a tax directly on land as a unit.
Sri Iyer contended that all the observations and propositions in India Cement stem from the basic conclusion of the Court that the cess levied there was a cess on royalty in view of the Explanation to section 115.
He also submitted that the statue under consideration in India Cement did not provide for any cess in the case of land which did not yield any royalty; in other words, the Act did not use dead rent as a basis on which land was to be valued.
He drew attention to the observations of Oza, J.In para 42 of India Cement that if the Explanation to section 115 had used the words `surface rent ' in place of `royalty ' the position would have been different and that, if a cess on such `surface rent ' or `dead rent ' is charged, it could be justified as a tax on land falling within the purview of Entry 49, Here, however, the position is different and so, he urged, the nature of the levy is also different.
We may have considered these points as furnishing some ground to distinguish the present levy from that in india Cement but for the Court 's specific disapproval of Murthy.
We are unable to accept the plea of Sri Iyer that, in spite of Murthy, he can support the validity of the levy, as the statute considered in Murthy contained exactly the same features as are here emphasised by Shri Iyer and the validity of such Levy cannot be upheld after India Cement.
As to the second contention based on the observations in the judgment of Oza J., we may point out here the 150 levy is not one confined to dead rent or surface rent as suggested by Oza J. but one on royalty which even according to Oza J. cannot be described as a tax on land.
Sri Iyer contended that unless the case of the assessees is that the statute is a piece of colourable legislation, it is not possible to construe the levy on mineral lands differently.
He pointed out that section 4 of the Orissa Cess Act, 1962 levies a cess on all land and that, if Sc.
7(1) and (2) measuring the cess by reference to the income of other categories of land are valid, there is no reason why S.7(3) alone should be treated differently and objected to as imposing a tax on royalties particularly when the levy also extends to dead rent.
The answer to this contention appears to be that the plea of the assessee need not go to the extent of saying that the levy is a colourable piece of legislation.
it is sufficient to restrict oneself to the issue of a proper determination of the pith and substance of the legislation.
There is no doubt an apparent anomaly in considering section 7(1) and (2) as levying a tax on land but construing section 7(3) as imposing a tax on royalties and this anomaly has been noticed in India Cement (vide para 42).
But the question is, what is it that is really being taxed by the Legislature? So far as mineral bearing lands are concerned, is the impact of the tax on the land or on royalties? The change in the scheme of taxation under S.7 in 1976; the importance and magnitude of the revenue by way of royalties received by the State; the charge of the cess as a percentage and, indeed, as multiples of the amount of royalty; and the mode and collection of the cess amount along with the royalties and as part thereof are circumstances which go to show that the legislation in this regard is with respect to royalty rather than with respect to land.
Sri Iyer had invited our attention to the decision of this Court in R.R. Engineering Co. v Zila Parishad, ; which upheld the validity of a `circumstances and property tax ' levied by a Zila Parishad.
The High Court had held this levy could not be traced to any entry other than the residuary Entry 97 of List I. This Court, on appeal, pointed out the distinction between a tax of this type and a tax on income.
It held that the tax was a composite one referable to Entry 49 (tax on lands and buildings), Entry 58 (taxes on animals and boats) and Entry 60 (tax as on professions, trades, callings and employments) of List II.
While holding, therefore, that the ceiling of Rs.250 per annum referred to in Entry 60 would not be applicable to the tax, the Court uttered a ``word of caution ' '.
151 ``The fact that one of the components of the impugned tax, namely, the component of `circumstances ' is referable to other entries in addition to Entry 60, shall not be construed as conferring an unlimited charter on the local authorities to impose disproportionately excessive levies on the assessees who are subject to their jurisdiction.
An excessive levy on circumstances will tend to blue the distinction between a tax on income and a tax on circumstances.
income will then cease to be a mere measure or yardstick of the tax and will become the very subject matter of the tax.
Restraint in this behalf will be a prudent prescription for the local authorities to follow ' '.
While Sri Iyer sought to use this decision in support of his contention that a tax on property can be legitimately measured on the basis of the income therefrom, we think the observations extracted above are very apposite here.
The manner in which the levy, initially introduced a uniform cess on all land, was slowly converted, qua mining lands, into a levy computed at multiples of the royalty amounts paid by the lesses thereof seem to bear out the contention that it is being availed of as a tax on the royalties rather than one on the annual value of the land containing the minerals.
In the words of Chandrachud J. (as he then was) one can legitimately conclude that royalty has ceased to be a mere measure or yardstick of the tax and has become the very subject matter thereof.
For the reasons discussed above, we repel the contention of the State seeking to justify the levy under Entry 45, 49 and 50 of List II of the Seventh Schedule.
There has been considerable discussion before us as to whether `royalty ' itself is a tax or not.
The controversy before us centres round the discussion contained in paras 31 to 34 of the India Cement judgement.
Counsel for the assessees respondents invite attention to the opening sentence of para 34 which runs: ``In the aforesaid view of the matter, we are of the opinion that royalty is a tax ' ' and argue that this clinches the issue.
On the other hand, Sri Iyer submits that this purported conclusion does not follow from the earlier discussion and is also inconsistent with what follows.
He points out that though there is a reference in para 27 to the conclusion of Venkataramiah J. in a judgement of the Mysore High Court that royalty under S.9 of the MMRD Act is really a tax, and a reference in para 31 to the Rajasthan, Punjab, Gujarat and Orissa decisions to the effect that royalty is not a 152 tax, there is no discussion, criticism or approval of any of the decision on this point and that, therefore, the first sentence of para 34, relied upon for the respondents, is non sequitir.
He submits that, perhaps, there is a typographical error in the first sentence of para 34 and that the sentence should really read thus: ``In the aforesaid view of the matter, we are of opinion that cess is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature. . ' ' He also points out that the last sentence of para 34 reads thus: ``Royalty on mineral right is not a tax on land but a payment for the use of land ' '.
He submits, therefore, that this issue has not been decided in India Cement.
He submits that, before we express any opinion on this issue, we should consider the matter afresh and places before us extracts from various lexicons and dictionaries to show that a royalty is nothing more than the rent or lease amount paid to a lessor in consideration for the grant of a lease to exploit minerals.
Reference may also be made to the discussion in this respect in paras 35 40 of Trivedi & Sons vs State of Gujarat, [1986] Supp.
S.C.C. 20.
It is therefore, neither a fee nor a tax but merely a price paid for the use of mineral bearing land.
We do not think that it is necessary for us to express an opinion either way on this controversy for, it seems to us, it is immaterial for the purposes of the present case.
If royalty itself were to be regarded as a tax, it can perhaps be described properly as a tax on mineral rights and has to conform to the requirements of section 50 which are discussed later.
We are, however, here concerned with the validity of the levy of not royalty but of cess.
If the cess is taken as a tax, then, unless it can be described as land revenue or a tax on land or a tax on mining rights, it cannot be upheld under Entry 45, 49 or 50.
On the contrary, if it is treated to Entry 23, a proposition the effect of which will be considered later.
the question whether royalty is a tax or not does not assist us much in furnishing an answer to the two questions posed in the present case and set out earlier.
We shall, therefore, leave this question to rest here.
This takes us to the second question posed by us initially and this 153 turns on the effect of M.M.R.D. Act, 1957 and the declaration contained in S.2 thereof which has been extracted earlier.
This will arise if we treat the levy as a tax falling under Entry 50 of List II or, alternatively, as a fee though it may not affect the State 's competence if it can be attributed to Entry 49 of List II.
To take up Entry 50 first, a perusal of entry 50 world show that the competence of the State Legislature with respect thereto is circumscribed by ``any limitations imposed by Parliament by law relating to mineral development ' '.
The M.M.R.D Act, 1957, is there can be no doubt about this a law of Parliament relating to mineral development.
S.9 of the said Act empowers the Central Government to fix, alter, enhance or reduce the rates of royalty payable in respect of minerals removed from the land or consumed by the lessee.
Sub section (3) of Section 9 in terms states that the royalties payable under the Second Schedule to the Act shall not be enhanced more than once during a period of three years.
India Cement has held that this is a clear bar on the State legislature taxing royalty so as, in effect, to amend the Second Schedule to the Central Act and that if the cess is taken as a tax falling under Entry 50 it will be ultra vires in view of the provisions of the Central Act.
It is possible, then, to treat the levy as a fee which the State legislature is competent to legislate for under Entry 66 of the State List? Sri Iyer contends for this position particularly on the strength of S.10 of the Orissa Cess Act, 1962.
There is one great difficulty in accepting this solution to the State 's problem.
S.10 as it stands now earmarks the purposes of utilisation of only fifty percent of the proceeds of the cess and that, too, is limited to the cess collected in respect of ``lands other than lands held for carrying on mining operations ' '.
In other words, the levy cannot be correlated to any services rendered or to be rendered by the State to the class of persons from whom the levy is collected.
Whether royalty is a tax or not, the cess is only a tax and cannot be properly described as a fee.
This consideration apart, even assuming it is a fee, the State legislature can impose a fee only in respect of any of the matters in the State List.
The entry in the State List that is relied upon for this purpose is Entry 23.
But Entry 23, it will be seen, is ``subject to the provisions of List I with respect to regulation and development ' ' of mines and minerals under the control of the Union.
Under Entry 54 of List I, regulation of mines and mineral development is in the field of Parliamentary legislation ``to the extent to which such regulation and 154 development under the control of the Union is declared by Parliament by law to be expedient in the public interest ' '.
Such a declaration is contained in section 2 of the M.M.R.D. Act, 1957, which has been set out earlier.
It, therefore, follow that any State legislation to the extent it encroaches on the field covered by the M.M.R.D. Act, 1957, will be ultra vires.
The assessees contend, in this case, that the legislation in question is beyond the purview of the State legislature by reason of the enactment of the M.M.R.D. Act.
It would appear, prima facie that the contention has to be upheld on the basis of the trilogy of decisions referred to at the outset viz. Hingir Rampur, Tulloch and India Cement.
They seem to provide a complete answer to this question.
The argument is, however, discussed at some length, because it has been put forward, mutatis mutandis, in support of the levy of cess by the other State as well.
Before dealing with the contentions of the counsel for the State in this behalf, a reference may be made to a difference in wording between Entry 52 and Entry 54 of List I. The languages of Entry 52 read with Entry 24 would suggest that, once it is declared by Parliament by law that the control of a particular industry by the Union is expedient in the public interest, the State legislatures completely lose all competence to legislate with respect to such an industry in any respect whatever, indian Tobacoo Co. Ltd. vs Union [1985] Supp. 1 S.C.R. 145.
But, even here, there are judicial decisions holding that such declaration does not divest the State legislature of the competence to make laws the pith and substance of which fall within the entries in List II, (see for e.g. Kannan Dewan Hills Co. vs State of Kerala; , and Ishwari Khetan Sugar Mills Ltd. vs State of U.P., ; to which reference will also be made later, merely on the ground that it has some effect on such industry.
Compared to that of Entry 52, the language of Entry 54 is very guarded.
It deprives the States of legislative competence only to the extent to which the law of Parliament considers the control of Union to be expedient in the matter of regulation of mines and mineral development.
Emphasising this difference, learned counsel for the State of Orissa submits that the intent, purpose and scope of the M.M.R.D. Act is totally different and does not cross the field covered by the impugned Act.
It is a law to provide for the proper exploitation and development of minerals and regulates the persons to whom, the manner in which and procedure according to which licenses for prospecting or leases for minerals should be granted.
The enactment is concerned with the need for a proper exploitation of minerals from lands.
The impugned Act, on the other hand, concentrates on the need 155 for development of mineral areas as such and provides for the collection of cess to cater to these needs.
The scope of the subject matter of legislation under the two Acts are entirely different and the M.M.R.D. Act cannot be considered to exclude State legislation of the nature presently under consideration.
Before considering the above contention, it will be useful to refer to certain earlier decisions of this Court which have a bearing on this issue.
State of West Bengal vs Union, [1964] 1 S.C.R. 371 concerned the validity of an Act of Parliament proposing to acquire certain coal bearing areas in the State qua certain areas vested in the State itself.
While upholding the general right of Parliament to legislate for the acquisition of even property vested in a State, the Court pointed out that this could be done only if there is some provision in the Central Act, expressly or necessarily implying that the property of the State is to be acquired by the Union.
However, the Court held, when the requisite declaration under Entry 54 is made, the power to legislate for regulation and development of mines and minerals under the control of the Union, would, by necessary implication, include the power to acquire mines and minerals.
Baijnath Kedia vs State of Bihar, ; was a case arising out of a 1964 amendment to the Bihar Land Reforms Act, 1950.
By section 10 of the 1950 Act, all the rights of former landlords or lessors under mining leases granted by them in their "estates" came to be vested in the State; but the terms and conditions of those leases were made binding upon the State Government.
Under a second proviso to this provision and a sub rule added by virtue of the 1964 amendment, additional demands were made to lessees, the validity of which was challenged successfully before this Court.
The Court, applying Hingir Rampur and Tulloch held that the whose whole of the legislative field in respect of minor minerals was covered by Parliamentary legislation and Entry 23 of List II was to the extent cut down by Entry 54 of List I.
The old leases could not be modified except by a legislative enactment by Parliament on the lines of S.16 of the M.M.R.D. Act, 1957.
In State of Haryana vs Chanan Mal, ; the State Government had declared saltpetre as a minor mineral and auctioned saltpetre mines in the State under the M.M.R.D. Act, 1957 read with the Punjab Minor Minerals Concession Rules, 1964.
In a writ petition filed by one of the owners, the High Court held, unless the mineral deposits were specifically mentioned in the wajib ul arz of the village 156 as having vested in the State, their ownership would continue to remain vested in the former proprietors according to the record of rights.
To meet this difficulty and the difficulties that had been created by haphazard leases created by the erstwhile proprietors, the State legislature passed the Haryana Minerals (Vesting of Rights) Act, 1973 and issued notifications thereunder again acquiring the rights to the saltpetre in the lands putting up certain saltpetre bearing lands to auction.
The High Court upheld the challenge to the validity of the notifications holding that, in view of the declaration contained in S.2 of the M.M.R.D. Act, the field covered by the impugned Act was already fully occupied by Central legislation and that, therefore, the State Act was void and imperative on grounds of repugnancy.
This Court, however, reversed the High Court 's decision.
It held that though the stated objects and reasons of the State Act showed that the acquisition was to be made to protect the mineral potentialities of the land and to ensure their proper development and exploitation on scientific lines and this did not materially differ from that which could be said to lie behind the Central Act the character of the State Act had to be judged by the substance and effect of its provisions and not merely by the purpose given in the Statement of Objects and Reasons.
Analysing the provisions of the Central Act, the Court pointed out that, subject to the overall supervision of the Central Government, the State Government had a sphere of its own powers and could take legally specified actions under the Central Act and rules.
In particular S.16(1)(b) of the Central Act showed that Parliament itself contemplated State legislation for vesting of lands containing minerals deposits in the State Government, a feature that could be explained only on the assumption that Parliament did not intend to touch upon the power of State legislatures under Entry 18 of List II read with Entry 42 of List III.S.17 also showed that there was no intention to interfere with vesting of lands in the States by the provisions of the Central Act.
The decision of Hingir Rampur, Tulloch and Baijnath Kedia were distinguished.
In Chanana Mal (Supra), the respondents relied upon certain observation in Hingir Rampur and State of West Bengal vs Union, (supra).
The Court, however, distinguished them saying: "In the two cases discussed above no provision of the Central Act 67 of 1957 was under consideration by this Court.
Moreover, power to acquire for purposes of development and regulation has not been exercised by Act 67 of 1957.
The existence of power of Parliament to legislate on this topic as an incident of exercise of legislative power on another subject is one thing.
Its actual exercise is another.
157 It is difficult to see how the field of acquisition could become occupied by a Central Act in the same way as it had been in the West Bengal 's case (supra) even before Parliament legislate to acquire land ina State.
At least untill Parliament has so legislated as it was shown to have done by the statute considered by this Court in the case from West Bengal, the field is free for State legislation falling under the express provisions of entry 42 of List III".
Tulloch and Baijnath Kedia were also considered no longer applicable as Ss.16 and 17 of the M.M.R.D. Act, 1957 had been amended to get over the need for a parliamentary legislation pointed out in Baijnath Kedia.
A similar question whether the State legislature was competent to acquire certain sugar undertakings, when the sugar industry had become a "declared: industry under the provisions of Entry 52 of List I read with S.2 of the I.D.R. Act, arose for consideration of Ishwari Khetan Sugar Mills (P) Ltd. vs State of U.P.,[1980] 3.
S.C.R. 331.
Answering this question in the affirmative, the Court observed : "The argument that the State legislature lacked competence to enact the impugned legislation is without force.
Legislative power of the State under Entry 24, List II is eroded only to the extent control is assumed by the Union pursuant to a declaration made by the Parliament in respect of a declared industry as spelt out by the legislative enactment and the field occupied by such enactment is measure of erosion.
Subject to such erosion, on the remainder the State legislature will have power to legislate in respect of a declared industry without in any way trenching upon the occupied field.
State legislature, which is otherwise competent to deal with industry under Entry 24, List II, can deal with that industry in exercise of other powers enabling it to legislate under different heads set out in Lists II and III and this power cannot be denied to the State.
The contention that the impugned Act is in violation of section 20 of the Central Act had no merit.
The impugned legislation was no enacted for taking over the management or control of nay industrial undertaken by the State undertakings.
If an attempt was made to take over the manage 158 ment or control of any industrial undertaking in a declared industry the bar of section 20 would inhibit exercise of such executive power.
The inhibition of section 20 is on the executive power which if as a sequel to an acquisition of an industrial undertaking the management or control of the industrial undertaking stands transferred to the acquiring authority section 20 is not attracted.
It does not preclude or forbid a State legislature exercising legislative power under an entry other than Entry 24 of List II and if in exercise of that legislative power the consequential transfer of management or control over the industry or undertaking follows as an incident of acquisition such taking over of management or control pursuant to an exercise of legislative power is not within the inhibition of section 20:.
The decisions in the above two case were, again, applied in Western Coalfields Ltd. vs Special Area Development Authority, ; Here the question was whether the enactment of the Coal Mines Nationalisation Act, 1973 and the M.M.R.D. Act 1957 precluded the State legislature from providing for the levy of a property tax by the Special Area Development Authority, constituted under a 1973 Act of the State legislature, in respect of lands and buildings used for the purposes of and covered by coal mines.
The plea on behalf of the appellant coalfields was that the State Act was invalid (a) as it encroached on the field vested in the Centre by reason of the declaration of S.2 of M.M.R.D. Act and (b) as it impeded the powers and functions of the union under the Coal Mines Nationalosation Act 1973 which had been enacted by Parliament "for acquisition of coal mines with a view to reorganising and restructuring such coal mines so to ensure the rational, coordinated and scientific development and utilisation of coal resources as best to subserve the common good".
Rejecting this contention the Court held : " Apart from the fact that there is no data before us showing that the property tax constitutes an impediment in the achievement of the goals of the Coal Mines Nationalisation Act, the provisions of the M.P. Act of 1973, under which Special Areas and Special Area Development Authorities are constituted afford an effective answer to the Attorney General 's contention.
Entry 23 of List II relates to "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union".
Entry 54 of List I 159 relates to "Regulation of mines and mineral development to the extent to which such regulation and development under control of the Union is declared by Parliament by law to be expedient in the public interest".
It is true that on account of declaration contained in S.2 of the Mines and Minerals (Development & Regulation) Act.
1957, the legislative field covered by Entry 23 of List II will pass on to Parliament by virtue of Entry 54, List I.
But in order to judge whether, on that account, the State legislature loses its competence to pass the Act of 1973, it is necessary to have regard to the object and purpose of that Act and to the relevant provisions thereof, under which Special Area development Authorities are given the power to tax lands and buildings within their jurisdiction.
We have set out the objects of the Act at the commencement of this judgement, one of which is to provide for the development and administration of Special Areas through Special Area Development Authorities.
Section 64 of the Act of 1973, which provides for the constitution of the special areas, lays down by sub section (4) that: Notwithstanding anything contained in the Madhya Pradesh Municipal Corporation Act, 1956, the Madhya Pradesh Panchayats Act, 1962 the Municipal Corporation, Municipal Council, Notified Area Committee or a Panchayat, as the case may be shall, in relation to the special area and as from the date of the Special Area Development Authority undertakes the function under clause (v) of clause (vi) of Section 68 ceases to exercise the powers and perform the function and duties which the Special Area Development Authority is competent to exercise and perform under the Act of 1973.
Section 68 defines the function of the Special Area Development Authority, one of which as prescribed by clause (v), is to provide the municipal services as specified in sections 123 and 124 of the Madhya Pradesh Municipalities Act, 1961.
Section 69, which defines the powers of the authority, shows that those powers are conferred, inter alia for the purpose of municipal adminstration.
Surely, the functions, powers and duties of Municipalities do not become an occupied filed by reason of the declaration contained in section 2 of the mines and Minerals (Development & Regulation) Act, 1957.
Though, therefore, on account of that declaration, the legislative field covered by Entry 23, List II may pass 160 on to the Parliament by virtue of Entry 54, List I, the competence of the State Government to enact laws for municipal adminstration will remain unaffected by our declaration.
Entry 5 of List II related to "Local Government, that is to say, the constitution and powers of municipal corporation and other local authorities for the purpose of local self Government".
It is in pursuance of this power that the State legislature enacted the Act of 1973.
The power to impose tax on lands and buildings is derived by the State Legislature from Entry 49 of List II: " Taxes on lands and buildings".
The power of the municipalities to levy tax on lands and buildings has been conferred by the State Legislature on the Sspecial Area Development Authorities.
Those authorities have the power to levy that tax in order effectively to discharge the municipal functions which are passed on them.
Entry 54 of List I does not contemplate the taking over of municipal functions.
" The Court pointed out that Murthy provided a complete answer to the above contention.
Chanan Mal and Ishwari Khetan, were referred to and Baijnath Kedia distinguished.
The decision of the Madhya Pradesh High Court in Central Coalfields vs State of M.P., A.I.R. 1986 M.P. 33 also arose out of similar facts: The question for consideration was whether the functions, powers and duties of Municipalities and Special Area Development Authority (SADA) become an occupied field by virtue of S.2 of the MMRD Act, 1957 and the powers vested in them to regulate construction activities relating to mining areas was ultra vires.
It was found that SADA had become the local authority to discharge the functions of a municipal adminstration under a State Act and that the regulation of construction activities was one of the aspects of municipal adminstration and management.
In this situation, the question posed was answered in the negative following Ishwari Khetan, Western Coalfields and Chanan Mal.
Placing considerable reliance on the decisions in Chanan Mal, Ishwari Khetan and Western Coalfields, Sri Iyer contended that the State legislation in the present case is not vitiated by reason of M.M.R.D. Act, 1957.
He also pointed out that India Cement also dies not consider in detail the reasoning in Hingir Rampur and Tulloch but only reefers to certain observations in the dissenting judgement of Wanchoo J ( as His Lordship then was) in the former case and urged.
161 that the entire matter requires careful consideration.
He submitted that Tulloch and Western Coalfields represent two lines of cases which need reconciliation and that this task has not been attempted at all in India Cement.
On the other hand, learned counsel for the respondents submitted that the authority of the Constitution Bench in Western Coalfields which endorsed Murthy should be considered weak after India Cement which has overruled Murthy.
The present case, it is submitted, is closer to Baijnath Kedia.
It is submitted that the principles of Tulloch have been referred to with approval in a number of cases [ Karunanidhi, 1979 3SCR 254 at 277] Hind Stone; , at 746m I.T.C., at 168 and are too well settled to need any reconsideration.
It is clear from a perusal of the decisions referred to above that the answer to the question before us depends on a proper understanding of the scope of M.M.R.D. Act 1957, and an assessment of the encroachment made by the impugned State legislation into the field covered by it.
Each of the cases referred to above turned on such an appreciation of the respective spheres of the two legislations.
As pointed out in Ishwari Khetan, the mere declaration of a law of Parliament that it is expedient for an industry of the regulation and development of mines and minerals to be under the control of the Union under Entry 52 or entry 54 does not denude the State legislatures of their legislative powers with respect to the fields covered by the several entries in List II or List III.
Particularly, in the case of a declaration under Entry 54, this Legislature Power is extended to the extent control is assumed by the Union pursuant to such declaration as spelt out by the legislative enactment which makes the declaration.
The measure of erosion turns upon the field of the enactment framed in pursuance of the declaration.
While the legislation in Hingir Rampur and Tulloch was found to fall within the pale of the prohibition, those in Chanan Mal, Ishwari Khetan and Western Coalfields were general in nature and traceable to specific entries in the State List and did not encroach on the field of the Central enactment except by way of incidental impact.
The Central Act, considered in Chanan Mal, seemed to envisage and indeed permit State legislation of the nature in question.
To turn to the respective spheres of the two legislations we are here concerned with, the Central Act (M.M.R.D. Act, 1957) demarcates the sphere of Union control in the matter of mines and mineral development.
While concerning itself generally with the requirements 162 regarding grants of licenses and leases for prospecting and exploitation of minerals, it contains certain provisions which are of direct relevance to the issue before us.
S.9, which deals with the topic of royalties and specifies not only the quantum by also the limitations on the enhancement thereof, has already been noticed.
S.9A enacts a like provision in respect of dead rent.
Reference may also be made to S.13 and S.18, which to the extent relevant, are extracted here.
Power of Central Government to make rules in respect of minerals (1) The Central Government may, by notification in the Official Gazette, make rules for regulating the grant of prospecting licenses and mining leases in respect of minerals and for purposes connected therewith.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely : (i) the fixing and collection of fees for prospecting licenses or mining leases, surface rent, security deposit, fines, other fees or charges and the time within which and the manner in which the dead rent or royalty shall be payable;* XXX XXX XXX XXX XXX (m) the construction, maintenance and use of roads, power transmission lines, tramways, railways, aerial rope ways, pipe lines and the making of passages for water for mining purposes on any land comprised in the mining lease; XXX XXX XXX XXX XXX (qq) The manner in which rehabilitation of flora and other vegetation such as trees and the like destroyed by reason of any prospecting a mining operation shall be made in the ______________________________________________________________ *Substituted by Act 37 of 1986 for the original clause (i) which read: (i) the fixing and collection of dead rent, fines, fees or other charges and their collection of royalties in respect of (i) prospecting licenses, (ii) mining leases, (iii) minerals, mines, quarried, excavated or collected".
163 same area or in any other area selected by the Central Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the prospecting license or mining lease"* S.18, which originally laid a duty on the Central Government to take all such steps as may be necessary "for the conservation and development of minerals in India" has been amended by Act 37 of 1986 to cover steps "for the conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling any pollution which may be caused by prospecting or mining operations" and the scope of the rule making power under S.18(2) has likewise been enlarged.
S.25(1) read thus: "25(1) Any rent, royalty, tax fee or other sum due to the Government under this Act or the rules made thereunder or under the terms and conditions of any prospecting licence or mining lease may, on a certificate of such effect as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as an arrear of land revenue".
and sub section (2) provides, further, that all such "rent, royalty, tax, fee" etc.
shall be a first charge of the assets of the holder of the prospecting licence or mining lease as the case may be.
If one looks at the above provisions and bears in mind that, in assessing the field covered by the Act of Parliament in question, one should be guided (as laid down in Hingir Rampur and Tulloch) not merely by the actual provisions of the Central Act or the rules made thereunder but should also take into account matters and aspects which can legitimately be brought within the scope of the said statute, the conclusion seems irresistible, particularly in view of Hingir Rampur and Tulloch, that the State Act has trespassed into the field covered by the Central Act.
The nature of the incursion made into the fields of the Central Act in the other cases were different.
The present legislation, traceable to the legislative power under Entry 23 or Entry 50 of the State List which stands impaired by the Parliamentary declaration under Entry 54, can hardly be equated to the law for land acquisition or municipal administration which were considered in the cases cited and which are traceable to different specific entries in List II or List III.
___________________________________________________________ *Newly inserted by Act 37 of 1986 164 Sri Iyer contended that the object and purposes of the Orissa Act and its provisions were quite distinct and different from the object and purposes of the Central Act with the result that the two enactments could validly coexist since they do not cover the same field.
It was argued that the impugned Act was concerned with the raising of funds to enable panchayats and Samitis to discharge their responsibilities of local administration and take steps for proper development of areas (including mining areas) under their jurisdiction whereas the Central Act was concerned not with any social purpose but merely with the development of mineral resources of the country and as such the State legislation in this regard may also be treated as referable to Entry No.5 of the State List as the statute in Western Coalfields (supra).
As to the reliance on Entry 5 of List II, it is plainly to tenuous.
As pointed out by Sri Bobde, there is a difference between the `object ' of the ACt and its `subject.
The object of the levy of the fees may be to strengthen the finances of local bodies but the Act has noting to do with municipal or local administration.
In this context, it may be pointed out that while S.10 of the Orissa Act, as originally enacted, provided for a distribution of the cess collected among local bodies, an amendment of 1970 restricted the utilisation of the cess partly for primary education and partly for the above purpose.
Even this was amended in 1976 whereafter there has been no restriction regarding the cess collected in respect of mining areas which form part of the consolidated fund of the State.
The levy has, therefore, ceased to be capable of being described as a fee.
Even if its purpose is only to levy a fee, the fee can be described only as one with respect of `land ' (Entry 18) if considered generally or with respect to mines and minerals development (Entry23) if restricted to the nature of the issue before us.
We shall discuss the relevance of Entry 18 later but, so far as Entry 23 is concerned, the State 's legislative competence is subject to the field covered by the Central Act.
Turning therefore to the distinction sought to be made between the respective areas of operation of the two Acts the answer to this contention is provided by Hingir Rampur.
The Constitution Bench first set out the scheme of the impugned Act thus : "The scheme of this Act thus clearly shows that it has been passed for the purpose of development of mining areas in the State.
The basis for the operation of the Act is the constitution of a mining area, and it is in regard to mining areas thus constituted that the provision of the Act come 165 into play.
It is not difficult to appreciate the intention of the State Legislature evidenced by this Act.
Orissa is an under developed State in the Union of India though it has a lot of mineral wealth of great potential value.
Unfortunately its mineral wealth is located generally in areas sparsely populated with bad communication.
Inevitably the exploitation of the minerals is handicapped by lack of communications, and the difficulty experienced in keeping the labour force sufficiently healthy and in congenial surroundings.
The mineral development of the State, thereof, requires that provision should be made for improving the communications by constructing good roads and by providing means of transport such as tramways, supply of water and electricity would also help.
It would also be necessary to provide for amenities of sanitation and education to the labour force in order to attract workmen to the area.
Before the Act wa passed it appears that the mine owners tried to put up small length roads and tramways for their own individual purpose, but that obviously could not be as effective as roads constructed by the State and tramway service provided by it.
It is on a consideration of these facts that the State Legislature decided to take an active part in a systematic development of its mineral areas which would held the mine owners in moving their minerals quickly through the shortest route and would attract labour to assist the excavation of the minerals.
Thus there can be no doubt that the primary and the principal object of the Act is to develop the mineral areas in the State and to assist more efficient and extended exploitation of its mineral wealth".
A little later, at pare 559, the provisions of Central Act LIII of 1948 which were less far reaching that those of 1957 ACt as can be seen from the observations at page 476 of Tulloch were analysed and the Court concluded : "Amongst the matters covered by S.6(2) is the levy and collection of royalties, fees or taxes in respect of minerals mined, quarried, excavated or collected.
It is true that no rules have in fact been framed by the Central Government in regard to the levy and collection of any fees; but, in our opinion, that would not make any difference.
If it is held that this Act contains the declaration referred to in Entry 166 23 there would be no difficulty in holding that the declaration covers the field of conservation and development of minerals, and the said field is indistinguishable from the field covered by the impugned Act.
What Entry 23 provides is that the legislative competence of the State Legislature is subject to the provisions of List 1 with respect of regulation and development under the control of the Union, the Entry 54 in List 1 requires a declaration by Parliament by law that regulation and development of mines should be under the control of the Union in public interest.
Therefore, if a Central Act has been passed for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be competent to State Legislature to pass an Act in respect of the subject matter covered by the said declaration.
In order that the declaration should be effective it is not necessary that rules should be made or enforced; all that this required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the control of the Union.
In such a case the test must be whether the legislative declaration covers the field or not.
Judged by this test there can be no doubt that the field covered by the impugned Act is covered by the Central Act LIII of 1948".
The following observations in Tulloch are also apposite in this context: " On the other hand, Mr. Setalvad learned counsel for the respondent urged that the Central ACt covered the entire field of mineral development, that being the "extent" to which Parliament had declared by law and it was expedient that the Union should assume control.
In this connection he relied most strongly on the terms of s.18(1) which laid a duty upon the Central Government "to take all such steps as may be necessary for the conservation and development of minerals in India and " for that propose the Central Government may, by notification, make such rules as it deems fit".
If the entire field of mineral development was taken over, that would include the provision of amenities to workmen employed in the mines which was necessary in order to stimulate or maintain the working of mines.
The test which he suggested was whether, if under the power 167 conferred by s.18(1) of the Central Act, the Central Government has made rules providing for the amenities for which provision was made by the Orissa Act and if the Central Government had imposed a fee to defray the expenses of the provision of these amenities, would such rules be held to be ultra vires of the Central Government, and this particularly when taken in conjunction with the matters for which rules could be made under s.13 to which reference has already been made.
We consider there is considerable force in this submission of learned counsel for the respondent, and thus would require very detailed and careful scrutiny.
We are, however, relieved from this task of detailed examination and discussion of this matter because we consider that it is concluded by a decision of the Court in the Hingir Rampur Coal Co. Ltd & Ors.
vs The State of Orissa & Ors., [1961] 2.S.C.R. 537 The above argument was accepted by the Court, vide page 476, Reference may also be made here to the recent decision of this Court in Bharat Coking Coal vs State of Bihar, ; The question whether the State of Bihar had the authority to grant a lease for lifting coal slurry coming out of the appellants washeries and getting deposited on the river bed or other lands was answered in the negative the court came to the conclusion that the "slurry" was a "mineral" and that its regulation was within the exclusive jurisdiction of Parliament.
The Court, in coming to the conclusion, held that no rules had been framed under S.18(1) or 18(2) (k) disposal or discharge of waste, slime or tailing arising from any mining or metallurgical operations carried out but held that this was immaterial in view of the principles laid down in Hingir Rampur, Tulloch and Baijnath Kedia.
These observations establish on the one hand that the distinction sought to be made between mineral development and mineral area development is not a real one as the two types of development are inextricably and integrally interconnected and, on the other, that, fees of the nature we are concerned with squarely fall with the scope of the provisions of Central Act.
The object of S.9 of the Central Act cannot be ignored.
The terms of S.13 of the Central Act extracted earlier empower the Union to frame rules in regard to matters concerning roads and environment.
S.18(1) empowers the Central Government to take all such steps as may be necessary for the conservation and development of minerals in India and for protection of environment.
These, in the very nature of things, cannot mean such amenities only in the mines but take in also the areas leading to and all 168 around the mines.
The development of mineral areas is implicit in them.
S.25 implicitly authorises the levy of rent, royalty, taxes and fees under the Act and the rules.
The scope of the powers thus conferred is very wide.
Read as a whole, the purpose of the Union control envisaged by Entry 45 and the M.M.R.D. Act 1957, is to provide for proper development of mines and mineral areas and also to bring about a uniformity all over the country in regard to the minerals specified in Schedule I in the matter of royalties and, consequently prices.
Sri Bobde, who appears for certain Central Government undertakings, points out that the prices of their exports are fixed and cannot be escalated with the enhancement of the royalties and that, if different royalties were to be charged in different States, their working would become impossible.
There appears to be force in this submission.
As pointed out in India Cement, the Central Act bars an enhancement of the royalty directly or indirectly, except by the Union and in the manner specified by the 1957 Act, and this is exactly what the impugned Act does.
We have, therefore, come to the conclusion that the validity of the impugned Act cannot be upheld by reference to Entry 23 or Entry 50 of List II.
An attempt was made to rest the legislation of Entry 18 of List II viz. `land '.
This attempt cannot succeed for the reasons whichever have set out to negative the plea that it falls under Entry 49.
A similar pleas in Baijnath was rejected by Hidayatullah C.J. in the following words : "Mr. L.N. Sinha argued that the topic of legislation concerns land and therefore falls under entry 18 of the State List and he drew our attention to other provisions on the subject of mines in the Land Reforms Act as originally passed.
The abolition of the rights of intermediaries to the mines and vesting these rights as lessors in the State Government was a topic connected with land and land tenures.
But after the mining leases stood between the State Government and the lessees, any attempt to regulate those mining leases will fall not in entry 18 but in entry 23 even though the regulation incidentally touches land.
The pith and substance of the amendment to s.10 of the Reforms Act falls within entry 23 although it incidentally touches land and not vice versa.
Therefore this amendment was subject to the overriding power of Parliament as declared in Act 67 of 1957 in S.15.
Entry 18 of the State List, therefore, is no help".
169 It will be seen that, if the levy in question cannot be described as a tax on land, it cannot be described as fee with regard to land either.
For the reasons above mentioned, we hold that the levy of cess under S.5 to 7 of the Orissa Cess Act, 1962 is beyond the competence of the State Legislature.
Bihar: The relevant provisions of the Bihar statutes have been set out earlier.
While S.5 only lays down that all immovable property shall be liable to a local cess and S.6 provides for the levy to be based on the annual value of lands and sale value of other immovable properties, the latter section specifically enacts that the cess will be on royalty from mines and quarries and on the annual net profit the railways and tramways.
The further amendments of S.6 have not changed this basic position.
Though the section refers also to the value of the mineral bearing land, that furnishes only the maximum upto which the cess, based on royalty, could go.
In other words, the cess is levied directly on royalties from mines and quarries.
The case is, therefore, indistinguishable from India Cement.
The notifications place the matter beyond all doubt.
The levy is a percentage or multiple of the royalty depending upon the kind of mineral and in the case of iron ore the method of extraction and nature of the process employed.
There are no clear indications in the stature that the amounts are collected by way of fee and not tax.
The provisions of S.9 extracted earlier would indicate that only a small percentage goes to the district fund and the remaining forms parts of the consolidated fund of the State "for the construction and maintenance of other works of public utility".
However, the proviso does require at least ten percent to be spent for purposes relating to mineral development.
We shall, therefore assume that the levy can be treated, in part, as a fee and, in part, as a tax.
But even this does not advance the case of the respondents for the reasons already discussed.
Shri Chidambaram submits that, in the original counter affidavit filed on behalf of the State, no case was sought to be made out that it was a tax on land, the case was that it was a "tax on mineral rights".
He urged that, this being out of question because of India Cement (para 23 and 30) a belated attempt is made to bring it under Entry 49.
we do not need to discuss the contentions here in detail because this is a clearer case of levy on royalty than in Orissa; and, for the reasons we have outlines in our discussion in regard to the Orissa Acts, this levy 170 has also to be declared invalid.
Shri Chidambaram also contended that the State cannot seek sustain the levy by relying of article 277 of the Constitution , in view of the fact that the cess is being levied since 1880.
Article 277 is in these terms : "Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by an municipality or other authority or body for the purposes of the State, municipality, district or other local area may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law".
We think, as rightly contended by Sri Chidambaram that a reliance on article 277 will be misplaced for three reasons : (a) The levy that is challenged is under S.6, as amended in 1975, i.e. a post constitution levy; (b) S.6 on its own language, is operative only "until provision to the contrary is made by the Parliament" and, as we have held that the field is covered by the M.M.R.D. Act, is supersedes the effect of S.6 re:mineral lands; and (c) Article 277 only saves taxes, duties, and cesses mentioned therein if they continue to be applied for the same purposes and until Parliament by law provides to the contrary and with the enactment of the M.M.R.D. Act, 1957, they cease to be valid.
In this context, the following observations of this Court in Ramakrishna Ramanath vs Janpad Sabha,[1962] Supp 3 SCR 70 quoted in Town Municipal Committee vs Ramachandra, ; at 959 are quire apposite : "Dealing next with the import of the words `may continue to be levied ' the same was summarized in these terms: (1) The tax must be one which was lawfully levied by a local authority for the purpose of a local area, 171 (2) the identity of the body that collects the tax, the area for whose benefit the tax is to be utilised and the purposes for which the utilization is to take place continue to be the same, and (3) the rate of the tax is not enhanced not its incidence in any manner altered, so that it continues to be the same tax".
It is obvious that if these tests were applied the attempt to sustain the tax on the basis of article 277 cannot succeed.
Indeed, no such attempt was made before us.
We, therefore, hold that the levy of cess has to be struck down.
It has also been brought to our notice that a Bench of two Judges of this Court has already allowed an appeal by an assessee from a judgement of the Patna High Court to the contrary viz. CA No.1521 of 1990.
It has been brought to our notice also that the Patna High Court has recently invalidated the levy of the cess in Central Coalfields Ltd. vs State, (CWJC 2085/89 and connected cases) in a judgement dated 6.11.90, following India Cement.
Madhya Pradesh : We now turn to the provisions of Madhya Pradesh Act 15 of 1982.
We are concerned only with Part IV which levies a cess not on land in general which could be referred to Entry 18 or Entry 49 but only on land held in connection with mineral rights which, in the State, are principally in regard to coal and limestone.
Under S.9 the proceeds are to utilised only towards the general development of mineral bearing areas.
Although there is no provision for the constitution of a separate fund for this purpose as is found in relation to the cesses levied under Part II or Part III of the Act this considerations alone does not preclude the levy from being considered as a fee:vide Srinivasa Traders V. STate [1983] 3.SCR 843 at 873.
The clear ear marking of the levy for purposes connected with development of mineral areas was considered by the High Court, in our view rightly, sufficient to treat it as a fee.
However, the High Court pointed out, such fee would be referable to item 23 and, hence, out of bounds for the State Legislature, after the enactment of M.M.R.D. Act, 1957.
For the reasons which have already been discussed in relation to the Orissa Statute, we uphold this conclusion.
172 The other statute viz. the Madhya Pradesh Upkar Adhiniyam (Act 1 of 1982) came up for consideration of a Full Bench of the Madhya Pradesh High Court in M.P. Lime Manufacturer 's Association vs State, (and connected cases) in AIR 1989 M.P. 264.
The Full Bench held that, in view of s.12 of the Act having been deleted by the 1989 amendment, the levy under s.11 of the Act ceased to be a fee and become a tax.
It held further that the levy was not covered by Entry 49 or Entry 50 of List II and was, therefore, ultra vires.
It observed : "It is significant to note that cess is not imposed on all land and that it is not dependent either on the extent of the land held in connection with mineral rights or on the value thereof.
The subject matter of tax, therefore, is major mineral raised from the land held in connection with mineral right.
If no minerals are raised, tax is not livable.
The tax is not dependent on the extent of the land held in connection with mineral rights.
It is not case where all land is liable to payment of cess, that the liability is assessed on the basis of the value of the land and that the measure of the tax in so far as land held under a mining lease is concerned, is the value of the minerals produced.
Under the impugned Act, value of the land or of the minerals produced does not play any part in the levy of cess.
The quantity of major minerals produced from the land determines the liability to pay tax.
In these circumstances, the impugned levy cannot be held to be a tax on land which is covered by Entry 49 of the State List.
After distinguishing Ajay Kumar Mukherjea vs Local Board, ; and referring to Union vs Bombay International Ltd. AIR 1984 SC 420 the Courted concluded : " The character of impost in the instant case is that though in form it appears to be a tax on land, in substance, it is a tax on minerals produced therefrom.
The subject matter of tax is, therefore, not covered by Entry 49 of the State List." As for Entry 50, after referring Hingir Rampur, the Court observed : "Now from a perusal of S.11 of the Act, it would be clear that in the instant case by the charging section, tax is not imposed on the mineral rights of every holder of mining 173 lease.
The tax is levied on minerals produced in land held under mining lease.
In these circumstances, the tax levied by the Act cannot be held to be a tax covered by Entry 50 of List II of the Seventh Schedule to the Constitution.
In our opinion, therefore, it has not been shown that the State Legislature is competent to levy the impugned cess.
" This conclusion is obviously correct in the light of our earlier discussion.
The court, however, expressed an opinion, in paras 10 to 12 of the judgment, that in case the levy could be treated as a tax imposable under Entry 49 or 50 of List II in the Second Schedule to the Constitution, such power "has not been taken away by the provision of the MMRD Act".
We think, as already pointed out by us that though the MMRD Act, 1957, unlike s.6(2) of the 1948 Act does not contain a specific provision for the levy of taxes, s.25 of the former does indicate the existence of such power.
The above observations of the High Court, therefore, in our view, do not attach sufficient importance to s.25 of the MMRD Act and the field covered thereby.
This aspect, however, is not of significance in view of the conclusion that the tax is not referable to Entry 49 or Entry 50.
We may add that a Bench of this Court has already dismissed the State 's petition for leave to appeal from the judgment of the Full Bench (S.L.P. 10052/89, 12696/84 etc.
disposed of on 5.2.90) in limine as squarely covered by India Cement.
It is brought to our notice that the Madhya Pradesh High Court, after India Cement, has reaffirment its conclusions in Hiralal and M.P. Lime Manufacturers ' Association in Ankur Textiles and Another vs South Eastern Coalfields, (M.P. No. 1547 of 1990) in the light of India Cement.
THE REFUND ISSUE Having thus concluded that the levy of cess under the Orissa, Bihar and Madhya Pradesh enactments is invalid,, it becomes necessary to consider the logical consequences of such a conclusion.
Prima facia it would seem that the levy should be considered bad since its inception and that all cess levied under the impugned provisions should be directed to be refunded to the assessees, particularly in view of Article 265 of the Constitution.
For the States, however, reliance is placed on the following observations in para 35 of the judgement in India Cement to contend to the contrary.
Towards the conclusion of his judgement, Sabyasachi Mukherjee, C.J. dealt with this issue thus : 174 "Mr. Krishnamurthy Iyer, however, submitted that, in any event, the decision in H.R.S. Murthy case was the decision of the Constitution Bench of this Court.
Cess has been realised on that basis for the organisation of village and town panchayats and comprehensive programme of measures had been framed under the National Extension of Service Scheme to which our attention was drawn.
Mr. Krishnamurthy Iyer further submitted that the Directive Principles of State Policy embodied in the Constitution enjoined that the States should take steps to organise village panchayats and endow them with power and authority as may be necessary to enable them to function as units of self government and as the amounts have been realised on that basis, it at all, we should declare the said cess on reality to be ultra vires prospective, In other words, the amounts that have been collected by virtue of the said provision,s should not be declared to be illegal retrospectively and the State made liable to refund the same.
We see good deal of substance in this submission.
After all, there was a decision of this Court in H.R.S. Murthy case and amounts have been collected on the basis that the said decision was the correct position.
We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State Legislature prospectively only".
Relying on the above, observations, it is submitted for the States that they should not be directed to refund a cess which they have been levying for several years in the past on the basis of the law declared by the Supreme Court in Murthy.
Certain other circumstances have also been brought to our notice in this connection : (i) Several States have preceded on the basis that they are entitled to levy a cess of the nature in question.
In addition to the States referred to earlier in the judgement, Rajashtan and Andhra Pradesh have also similar statues.
(ii) The levy accounts for a substantial part of the States finances particularly in States which are rich in minerals.
For e.g. State of Madhya Pradesh accounts for a good percentage of this country 's mineral resource.
It produces 26.53% of the country 's production in limestone.
36% in dolomite, 28.14% in coal, 21.5% in iron ore, 13% in bauxite, 21.38% in Manganese ore, 175 14.43% in rock phosphate, 33% in copper ore and so on.
The amounts of cess run to several crores.
A direction to refund the cess collected thus far will result in crying halt to all developmental activities initiated and put through and cause irreparable loss to the State.
(iii) As pointed out (for e.g. in pars 5 to 8 in CMP Nos. 31187 to 31196 of 1984 in CA Nos. 1640 to 1643,1645,1649, 1654, 1655,1659, and 1662 of 1986) the impact of the cess has already been passed on by the assessees which are leading industries that can easily bear the brunt of the same to their customers.
A refund granted to them will only result in their unjust enrichment and this should be safeguarded against applying the principles in U.P. State Electricity Board, Lucknow & Ors.
vs City Board, Mussoorie & Ors., ; at page 824 and State of Madhya Pradesh vs Vyankatlal & Anr., ; at page 568.
The above request was vehemently opposed by the assessees counsel.
Presenting their case on this issue, Sri Nariman (appear for the appellants in C.A. 4353 4 of 1983 and C.A. 2053 80 of 1980) contended that we should ignore the dicta in para 35 of India Cement as per incuriam.
He submitted, first, that the Court there has acted on the assumption that a doctrine of prospective overruling had been enunciated in Golaknath; , Analysing the various judgments delivered in that case, he submitted that, while Subba Rao C.J. and four other judges (pp 805 813) approved of the applicability of this doctrine in India, five other judges spoke against it (pp 890, 897, 899 922, 921 and 952) and the eleventh judge was neutral (p.408).
He therefore, submitted that the judges who decided Golaknath were equally divided on the issue and so there is no reason disdained of the Court binding on us.
Second, he submitted that the doctrine of prospective overruling was evolved by the Supreme Court of the United States in the absence of any constitutional provision militating against it, vide sunburst (at page 366) and Linkletter; , (at page 604 8).
In India, however, the application of the doctrine, particularly in the context of an issue regarding the validity of a tax levy, would run counter to specific provisions contained Articles 246 and 265 of the Constitution.
Where the Court finds that a legislation is beyond the competence of the concerned legislature, it stands uprooted altogether because Articles 246 and 265 say so.
There is no scope for, and no room for the exercise of any discretion by, the Court to say that, there articles of the Constitution notwithstanding, they 176 would treat the legislation to be valid for a certain period or for certain purposes.
Third, he submitted that the above objection cannot be "circumvented" by a resort to Article 142.
Sri Nariman referred us in this context to the observations in the following decisions of this Court: Re: Article 246 Pesikaka at pp652,654,656 Chamarbaugwala at p. 940 Sundararamier & Co ; at pp 1468 1474 West Ramnad at p.764 M.L. Jain 1963 Supp 1SCR 912 at pp 530 41 Re: Article 265 Moopil Nayar at p. 89 Balaji at p. 996 Chottachan 1962 Supp.
2 SCR 1 at pp.
29 30 Bakshi Singh at p. 233 Re: Article 142 Garg 1963 Suppl.
1 SCR at pp.
896 8 It is submitted , relying on Mahabir Kishore Ors.
vs State of Madhya Pradesh, [1989] 4 SCC 1 that a refund is the automatic and inevitable consequence of the declaration of invalidity and should be granted proved a suit within a period of limitation or a writ for declaration and consequential relief is filed.
Supplementing the above arguments, Sri G. Ramaswamy appearing for some of the assessees, contended that there can be no question of the Court exercising any discretion under Article 142 so as to destroy a fundamental right of the assessees.
Learned counsel also submitted that considerations of hardship of the States, in case they are called upon to refund huge amounts, can be no relevant consideration at all.
He urged, that in some at least of the cases here, there is no averment, much less evidence, of any irreparable hardship that is likely to result if a refund is ordered.
He also pointed out that in the 177 converse situation where a retrospective levy is held to be valid, assessees have been held entitled to no relief from payment of back duty on grounds of hardship: vide Chhotabhai Jethabhai Patel & Co.v.
Union of India [1962] 2 Supp.
at Pp12,13 and urged that there cannot be a different rule for the State.
Sri B. Sen submitted that the ruling in Murthy could not be invoked to seek prospective invalidation as, at least so far as Orissa was concerned, as the decision in Tulloch had clearly defined the limitations of the State 's power to make such levies.
In addition to the above general arguments, reliance had also been placed by the assessees on certain specific interim orders passed in these cases and it has been contended that these orders should be given effect to, or at least taken into account, in deciding the issue of the final relief to be granted.
It is therefore necessary to refer to these orders : (i) In C.A. Nos.
4353 4 of 1983, there is no interim order staying recovery of the cess at all except of the arrears for the period from 1.1.1983 to 31.3.1983 and even this was made subject to the furnishing of a bank guarantee by the assessee.
(ii) In C.A. 2053 80 of 1980 there was initially (on 2/2/1981) an order of stay of recovery of cess on the furnishing of bank guarantees.
But this was later substituted by an order of 25.3.1983 by which the amounts of cess were to be deposited in the High Court every quarter and then withdrawn by the State but this was on the undertaking buy the State 's Advocate General to refund the amount "if deposited, in the event the appeal succeeds".
This continued till 30.1.90 when the Counsel of the State of Orissa undertook, in view of the decision in India Cement, that the levy of the cess for the quarter ending December, 1989 onwards will not be enforced until further orders.
Presumably, therefore, there has been no collection for cess in Orissa since that period.
(iii) The position in the Orissa case of Orient Paper & Industries Ltd. is somewhat different.
It is pointed out that when the levy of cess first came into force w.e.f.
1.4.1977, the Western Coalfields Ltd. who supplied coal to the assessees had challenged the levy of cess by a writ petition and obtained an interim injunction order but eventually withdrew the writ petition.
But simultaneously, the said company wrote to the assessee that the amounts of cess (which were collected from the assessee) would be kept in a suspense account and that, after a deci 178 sion is rendered by a court of law, it will be decided whether they should be deposited with the State against cess or be refunded to the assessees.
It was made clear that, in case the levy of cess is held invalid, "there will be no hitch in refunding the amount".
This arrangement went on between 1977 and 1982.
On 21.9.1982, the assessee filed a writ petition challenging the levy as it was enahanced from 25% to 100% from 1.4.80.
An interim stay was granted by the High Court restricted to be enhanced demand but even this was vacated by the High Court on 13.5.1983 in view of the decision in Lakshmi Narain Agarwala vs State AIR 1983 Orissa 210 that the levy was valid.
Finally, the High Court by its judgement dated 22.12.1989 followed India Cement and allowed the writ but directed that the collections so far made shall be allowed to be retained by the State as was directed by the Supreme Court in the case of India Cement (supra).
This judgement is the subject matter of SLP 1479 of 1990 by the State.
The assessee thereupon file a review petition in regard to the above direction contending ; (a) that a High Court had no jurisdiction to declare provision to the unconstitutional only "prospectively"; (b) that the cess in the case had been collected only by Western Coalfields Ltd. and had not been deposited in the State coffers; and (c) that the principle of `unjust enrichment ' should equally apply to the State which should not be permitted to enrich itself by the levy of an illegal exaction.
The application for review was dismissed by the High Court on 13.7.90.
Thereupon the assessee has preferred the unnumbered SLP on 1990 and SLP 11939 on 1990 respectively against the original judgement dated 22.12.1989 and the order on the review petition dated 13.7.1990.
It is contended that the High Court, having regard to the circumstances set out earlier, should have directed a refund of the cess.
collected.
IT is stated that, subsequently, Western Coalfields have paid over the amounts of cess to the Government [vide orders of this Court referred to in sub para (v) below].
It is also submitted that the averments by the State now made that the amounts collected have been utilized by the State on objects enumerated in Part IV of the Constitution are the result of an afterthought and are being put forward to defeat the rightful entitlement of the assessee to the refund.
(iv) In the Bihar case, there was an interim order on 10.2.1986 to the following effect: 179 "On the stay application there will be no stay of recovery of cess but in case appellants succeed in appeal in this Court, the excess amount so recovered will bepaid to the appellants with interest at the rate of 12% from the date of recovery" This was modified on 30.1.90 in view of the judgement in India Cement which had been delivered by this time, and it was directed that the State of Bihar should not also enforce any demand for cess for the quarters ending December, 1989 and thereafter until further orders.
Presumably, therefore, there has been no levy of cess in Bihar from the last quarter of 1989 onwards.
Counsel for the assessees from Bihar Sri Chidambaram and Sri Shanti Bhushan stated that they seek compliance with the order dated 10.2.86 and would not insist on refund of cess collected earlier to that date.
(v) Turning to the Madhya Pradesh matters, the position is this, The High Court, by its judgement dated 28.3.1986 held the levy to be invalid.
In C.A. 1640 to 1662 of 1986, the initial order passed on 2.5.1986 was this : " There will be stay of refund of the cess already collected pending disposal of the appeals.
Learned counsel for the State states that, in the event of the appeals being dismissed the State is prepared to pay interest at 12% per annum.
There will, however, be no stay of operation of the judgement.
" As a result of the order, there should have been no collection of cess by the State subsequent to the date of the judgement and only issue could have been regarding the refund of the cess already collected from 1982 to 28.3.1986.
However, the Western Coalfields Ltd. approached the Court with an application in one of the appeals (viz. C.A. 1649/86) praying that, pending disposal of the appeals, it should be permitted to collect the amount of cess and deposit the same in a separate account in the Bank vis a vis each of its customers.
This application was ordered on 1.8.86.
When this order was passed, the State Government moved an application praying that, instead of the monies being kept in deposit in bank account by Western Coalfields Ltd., it will be conducive to public interest if the State is permitted to utilise the moneys "in mineral areas development programs" and that the State would abide by such 180 terms as the Court may impose at the time of final decision.
It was, therefore, prayed that the Western Coal fields should be directed to deposit the amounts collected by it to the State Government.
The Court found this request reasonable and passed the following order on 15.10.86 : "The order dated 1.8.86 passed in the above appeal is modified as follows : The amount deposited by the Western Coalfields Ltd. in a separate account in the Bank in accordance with the directions issued by this Court on 1.8.1986 shall be paid to the State Government of Madhya Pradesh.
In the event, of the State Government failing in this appeal, the amount received by the Madhya Pradesh Government under this order shall be refunded by that Government within three months from the date of the judgement to the Western Coalfields Ltd. with interest at 12% per annum to disburse in favour of those who had paid it, subject to such directions which this court may give in its judgement.
The amount received by the Madhya Pradesh State Government shall be spent in accordance with the provisions contained in the impugned Act." Fresh applications were filed by the State in a number of the other appeals seeking similar direction as in C.A. 1649/86 but the request does not show that any such order were passed in appeal other than C.A. 1649/86.
However, it seems that, in the case of coal, the cess is being collected by Western Coalfields Ltd. and other like public sector organisation (which are subsidiaries of Coal India Ltd.) from all their customers and passed on to the State not only in Madhya Pradesh but also in Orissa (as indicated in sub para (iii) above), apparently on the understanding that it should be refunded by the concerned State Government with interest in case the levy is ultimately held invalid.
Sri Bobde, appearing for the Western Coalfields , made it clear that this company would abide by the direction of this Court, in so far as the amounts of cess collected by it remain with it or are directed to be refunded by the State Government to it.
We have given our earned consideration to these contentions and were are of opinion that the ruling in India Cement concludes the issue.
There the Court was specifically called upon to consider an argument that, even if the statutory levy should be found invalid, the 181 Court may not give directions to refund amounts already collected and the argument found favour with the bench of seven judges.
We are bound by their decision in this regard.
It is difficult to accept the plea that, in giving these directions, the Court overlooked the provisions of Article 246 and 265 of the Constitution.
The Court was fully aware of the position that the effect of the legislation is question being found beyond the competence of the State legislature was to render it void ab initio and the collections made thereunder without the authority of law.
Yet the Court considered that a direction to refund all the cesses collected since 1964 would work hardship and injustice.
The directions, now impugned, were given in the interest of equity and justice after due consideration and we cannot take a contrary view.
In our view, we need enter into a discussion of the principles of prospective validation enunciated by at lease some of the Judges in Golaknath (supra) as the direction in India Cement can be supported on another well settled principle applicable in the area of the writ jurisdiction of Courts.
We are inclined to accept the view under on behalf of the state that a finding regarding the invalidity of a levy need not automatically result in a direction for refund of all collections thereof made earlier.
The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, certain amount of discretion.
It is a well settled proportion that it is open to the Court to grant , could or restrict the relief in a inner most appropriate to the situation before it is insuch a way as to advance the interests of justice.
It will be appreciated that it is not always possible in all situations to give a logical and complete effect to a finding.
Many situations of this arise in actual practice .
For instance , there are cases where a comes to the conclusion that the termination of the services of an employee is invalid, yet in refrains from giving him benefits of "reinstatement" (i.e. continuity in service) on "back wages".
In such cases, the direction of the Court does not result in a person being denied the benefits that should flow to him as a logical consequence of a declaration inhis favour.
It may be said that, in such a case, the Court 's direction does not violate any fundamental right as happens in a case like this were an "illegal" exaction is sought to be retained by the State.
But even in the latter type of cases relief has not been considered automatic.
One of the commonest issue that arose in the context of the situation we are concerned with is where a person affected by an illegal exaction files an application for refund under the provisions of the relevant statute of files a suit to recover the taxes as 182 paid under a mistake of law.
In such a case, the Court can grant relief only to extent permissible under the relevant rules of limitation.
Even if he files an application for refund or a suit for recovery of the taxes paid for several years, the relief will be limited only to the period in regard to which the application for refund or a suit for recovery of the taxes paid for several years, the relief will be limited only to the period in regard to which the application or suit is not barred by limitation.
If even this instance is sought to be distinguished as a case where the Court 's hands are tied by limitations inherent in the form of forum in which the relief is sought, let us consider a very case where a petitioner seeks relief against an illegal exaction in a writ petition filed under Article 226.
In this situation, the question has often arisen whether the petitioner 's prayer for refund of taxes collected over an indefinite period of years should be granted once the levy is found to be illegal.
To answer the question in the affirmative would result in discrimination between persons based on their choice on the forum for relief, a classification which, prima facie is too fragile to be considered a relevant criterion for the resulting discrimination.
This is one of the reasons why there has been an understandable hesitation on the part of Courts in answering the above question in the affirmative.
The above aspect of the matter has been considered in several decisions of this Court.
In State of Madhya Pradesh vs Bhailal Bhai & ORs.
, ; the respondents who were dealers in tobacco in the State of Madhya Bharat filed a writ petition under Article 226 of the Constitution for the issue of writ of mandamus directing the refund of sales tax collected from them on the ground that the impugned tax was violative of Article 301 (a) of the Constitution and that they had paid the same under a mistake of law.
It was contended on behalf of the State that even if the provision violated the fundamental rights, the High Court should not exercise its discretionary power of issuing a writ of mandamus directing refund since there was unreasonable delay in filing the petition.
This contention of the State was rejected by the High Court but on further appeal this Court tool a different view.
While agreeing that the Courts have the power, for the purposes of enforcement of fundamental rights and statutory rights, to give a consequential relief by ordering repayment of any money realised by the government without authority of law, the Court said: "At the same time we cannot lose sight of the fact that the special remedy provided under Article 226 is not intended to supersede completely the modes of obtained relief by an action in a civil court or to deny defends legitimately open in such actions.
It has been made clear more than once that the power to give relief under Article 226 is a discretionary 183 power.
This is specially true in the case of power to issue writs in the nature of mandamus.
Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking the special remedy and what excuse there is for it.
Another matter which can be rightly taken into consideration is the nature of the facts and law that may have to be decided as regarded the availability of consequential relief.
Thus, where, as in these cases, a person comes to the Court for relief under Article 226 on the allegations that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, if it the Court, finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, it is still not bound to exercise its discretion directing repayment.
Whether repayment should be ordered in the exercise of this discretion will depend in each case of its own facts and circumstances.
It is not easy nor is it desirable to lay down any rules of universal application it may however be stated as a general rule that if there has been unreasonable delay, the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.
" The Court further pointed out that the delay may be considered unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable.
The relief given by the High Court was modified on this basis.
In Tilokchand Mothichand vs Munshi the petitioners had collected sales tax from their customers and paid it over to the State.
The Sales Tax Authorities directed a refund but on the condition that the amounts should be passed on to the customers.
Since the petitioner did not comply with the condition, the sales tax officer forfeited the sum under S.21(4) of the Bombay Sales Tax Act, 1953.
A writ petition was filed by the petitioner contending that S.21(4) infringed Articles 19[10(f)] and 365 of the Constitution and hence, they were not liable to repay the amount.
This was dismissed on the ground that they had defrauded their customers and, therefore, not entitled to any relief even if there was a violation of fundamental rights.
An appeal to a Division Bench was also dismissed.
Subsequently, when coercive proceedings were taken for recovering the amounts as arrears of land revenue, the petitioners paid the amounts 184 in 1959 60.
Much later, there was a decision of this Court striking down the corresponding provision of the Bombay Sales Tax Act 1946 as ultra vires.
The petitioners thereupon filed a writ petition under Article 32 of the Constitution claiming a refund of the amounts paid by them in consequence of the recovery proceedings.
It was held by four of the five learned Judges of this Court that the writ petition should be dismissed on the ground of laches.
Chief Justice Hidayatullah held that though Article 32 gives the right to move the Court by appropriate proceedings for enforcement of fundamental rights and State cannot place any hindrance in the way of an aggrieved person, once the matter reached this court, the extent or manner of interference was for the Court to decide.
The learned Chief Justice pointed out that this Court had put itself in restraint in the matter of petitions under Article 32.
For example, if a party had already moved High Court under Article 226, this court would refuse to interfere.
Similarly, in inquiring into belated and stale claims, this Court should take note of evidence of neglect of the petitioner 's own rights for a long time or of the rights of innocent parties which might have merged by reason of the delay.
It was possible for this Court to lay down any specific period as the ultimate limit of action and the case will have to be considered on its own facts.
On the facts of the case before it, the majority found that the petitioner had by his own conduct abandoned his litigation years ago and could not be permitted to resume it several years later merely because some other person had got the statue declared unconstitutional.
While Hidayatullah C.J. was of the view that the Court should not, on the facts of the case apply for analogy of the article in the Limitation Act in cases of mistake of law give relief, Bachawat and Mitter JJ.
felt that even for a writ petition the limitation period fixed for a suit would be a reasonable standard for measuring delay.
Sikri J and Hegde J. dissented.
Sikri J. was of the view that on the facts of the case there was no delay but that the period under the Limitation Act should not be applied to such cases and that a period of one year should be taken as a period beyond which the claim would be considered a stale claim unless the delay is explained.
" Such a practice" the learned Judge observed, "would not destroy the guarantee under Article 32 because the article nowhere lays down that a petition however late, should be entertained.
Only Hegde J. was emphatic that laches or limitation should be no ground to deny relief.
The learned Judge observed (for brevity, we quote from head note): "Since the right given to the petitioners under Article 32 is itself a fundamental right and does not depend on the discretionary powers of this Court, as in the case of Article 185 226, it is inappropriate to equate the duty imposed on this Court to the powers of Chancery Court in England or the equitable jurisdiction of Courts in the United States.
The facts that the petitioner have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under Article 32.
This Court is charged by the Constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence laches on the part of an aggrieved party cannot deprive him of his right to get relief under Article 32.
In fact, law reports do not show a single instance of this Court refusing to grant relief on the grounds of delay.
If this Court could refuse relief on the ground of delay , the power of the Court under Article 32 would be discretionary power and the right would cease to be a fundamental right.
The provisions contained in the Limitation Act do not apply to proceedings under Articles 226 and 32 and if these provisions of the Limitation Act are brought in indirectly to control the remedies conferred by the Constitution, it would be a case of Parliament indirectly abridging the fundamental rights which this court, in Golaknath 's case.
[1967]2 S.C.R. 752 held that Parliament cannot do.
The fear that forgotten claims and discarded right against Government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for , after all, a petitioner can only enforce an existing right.
" The above principles have been applied in several subsequent cases: Ramchandra Shankar Deodhar vs State of Maharastara, ; ; Shri Vallabh Glass works Ltd. vs union of India ; ; State of M.P. vs Nandlal Jaiswal, ; ; D. Cawasji & Co. vs State of Mysore, ; and Salonah Tea Co. Ltd. vs Superintendent of Taxes.[1988] 1 SCC 401.
The above cases no doubt only list situations where directions for refund have been refused, or considered to be liable to be refused, on grounds of unreasonable delay or laches on the part of the petitioners in approaching the Court in the interests of justice and equity.
The importance of these cases, however, lies not in the grounds on which refund has been held declinable but because they lay down unequivocally that the grant of refund is not an automatic consequence of a 186 declaration of illegality.
Once the principle that the Court has a discretion to grant or decline refund is recognised, the ground on which such discretion should be exercised is a matter of consideration for the Court having regard to all the circumstances of the case.
It is possible that a direction for refund may be opposed by the State on grounds other than laches or limitation.
To give an instance, in recent years the question has often arisen whether a refund could be refused on the ground that the person who seeks the refund has already passed on the burden of the illegal tax to others and that to grant a refund to him would result in his "unjust enrichment".
Some decisions have suggested a solution of neither granting a refund nor permitting the State to retain the illegal exaction.
This issue has been referred to a larger Bench of this Court and its is not necessary for us to enter into that question here.
so far as the present cases are concerned, it is sufficient to point out that all the decided cases unmistakably show that, even where the levy of taxes is fount to be unconstitutional, the Court is not obliged to grant an order of refund.
It is entitled to refuse the prayer for good and valid reasons.
Laches and undue delay or intervention of third party rights would clearly be one of those reasons.
Unjust enrichment of the refundee may or may not be another.
But we see no reason why the vital interests of the State, taken note of by the learned judges in India Cement should not be a relevant criterion for deciding that a refund should not be granted.
We are, therefore, unable to agree with the learned counsel for the petitioners that any different criterion should be adopted and that the direction in paragraph 35 of India Cement should not be followed in those cases.
For the reasons discussed above, we are of opinion that, though the levy of the cess was unconstitutional, there shall be no direction to refund the assessees of any amounts of cess collected until the date on which the levy in question has been declared unconstitutional.
This in regard to the Bihar cases, will be the date of this judgement.
In respect of Orissa, the relevant date will be 22.12.1989 on which date, the High Court, following India Cement declared the levy by the State Legislature unconstitutional.
In respect of Madhya Pradesh, the relevant date will be the date of the judgement in Hiralal Ramswarup and connected cases (viz. M.P. 410/83 decided on 28.3.1986) in respect of the levy under State Act 15 th 1982.
Though there are the dates of the Judgement of the appropriate High Court, which may not constitute a declaration of law within the scope of Article 141 of the constitution, it cannot be gainsaid that the State cannot, on any grounds of equity, be permitted to retain the cess collected on and after the date of the High Court 's judgement.
187 Another point that was raised, was that in many of these cases the State or a Coal field Companies had given an undertaking that incase the levy is held to be invalid by this Court, they would refund the amount collection with interest.
It is submitted that the condition imposed, or undertakings given, to this effect and recorded at the time of passing interim orders in the various cases should be given implemented.
The interim undertakings or directions cannot be understood in such a manner as to conflict with out final decision on the writ petitions set out above.
But we agree that, to the extend refunds of amounts of cess collected after the relevant dates are permissible on the basis indicated by us, the State should refund those amounts to the assessees directly or to the Coalfields from whom they were collected, with interest at the rate directed by this Court or mentioned in the undertaking from the date of the relevant judgment to the actual date of repayment.
The Coalfields, when hey get th refunds, should pass on the same to their customers, the assessees.
The appeals are disposed of accordingly.
There will be no order as to costs.
T.N.A. Appeals disposed of.
[/INST]The States of Orissa, Bihar and Madhya Pradesh levied a cess which was based on the royalty derived from mining lands.
The cess was levied by these States under their respective statutes viz. Orissa Cess Act, 1962, Bengal Cess Act, 1880 (as applicable to the State of Bihar), Madhya Pradesh Upkar Adhiniyam 1981 and Madhya Pradesh Karadhan Adhiniyam, 1982.
The assesses challenged the constitutional validity of the cess by filing various petitions in the High Courts of Orissa declared the cess unconstitutional on the ground that it was beyond the legislative competence of the State Legislatures, but rejected the prayer of the assessees for a direction to the State to grant refund of the cess collected from the assessees.
Against the decision of the Orissa High Court the assessees have filed appeal in this Court whereas the State of Orissa has filed a cross appeal.
The High Court of Madhya Pradesh also declared the levy of cess unconstitutional on the ground that it was beyond the legislative competence of the State legislature.
Against the decision of the Madhya Pradesh High Court the State of Madhya Pradesh has filed an appeal in this Court.
On the other hand the High Court of Patna dismissed the writ petition of the assessee.
Against the decision of the Patna High Court the assessee has filed an appeal in this court.
In appeal to this court, it was contended on behalf of the State of Orissa; that (i) the levy of cess being referable to Entries 45, 49 and 50 of the State List of the Seventh Schedule of the Constitution the impugned legislation was within the legislative competence of the State legislature; (ii) the limitations imposed in the statute on the modes of utilisation of cess supports a view that the cess is fee on which the State legislature is competent to legislate under Entry 23 read with Entry 66 of the State List; (iii) since the impugned Act was concerned with the raising of funds to enable panchayats and Samithis to discharge their responsibilities of local administration and take steps for proper development of the area under their jurisdiction, the impugned legislation was referable to Entry 5 of State List; and (iv) the enactment of the Central Legislation viz. has not denuded the State legislation of its competence to enact the impugned legislation since the scope and subject matter of the two legislations are entirely different and the impugned State Legislation does not encroach upon the field covered by the Central Legislation i.e. 1957 Act.
107 On behalf of the assessees it was contended inter alia that (i) all the State levies were ultra vires for the reasons given by this Court in the India Cement case; (ii) the State cannot seek to sustain the levy under the Bengal Cess Act 1880 by relying on Article 277 of the Constitution; and (iii) the levy being unconstitutional the Court should direct the States to refund the cess collected from the assessees because (a) a refund is the automatic and inevitable consequence of the declaration of invalidity of tax and (b) the States have given undertakings before this Court that they would refund the amount collected in case the levy is declared invalid by this Court.
Disposing of the appeals, this Court, HELD: 1.
The levy of cess under sections 5 to 7 of the Orissa Cess Act, 1962 is beyond the competence of the State Legislature.
[169B] 1.1.
A royalty or the tax thereon cannot be equated to land revenue.
Therefore the cess cannot be brought under Entry 45 of List II.
[142D] India Cement & Ors.
vs State of Tamil Nadu & Ors., , followed.
1.2 A tax on royalties cannot be a tax on minerals and is outside the purview of Entry 50 of List II.
Even otherwise, the competence of the State Legislature under the said Entry is circumscribed by "any limitations imposed by Parliament by law relating to mineral development".
The is a law of Parliament relating to mineral development and Section 9 of the said Act empowers the Central Government to fix, alter, enhance or reduce the rates of royalty payable in respect of minerals removed from the land or consumed by the lessee, Sub Section (3) of Section 9 in terms States that the royalties payable under the Second Schedule to that Act shall not be enhanced more than once during a period of three years.
This is a clear bar on the State legislature taxing royalty so as, in effect, to amend the Second Schedule to the Central Act.
This is exactly what the impugned Act does.
Therefore the validity of the impugned Act cannot be upheld by reference to Entry 50 of List II.
And if the cess is taken as a tax falling under Entry 50 it will be ultra vires in view of the provisions of the Central ACt.
[144B, 153B D, 168D] India Cement & Ors.
vs State of Tamil Nadu & Ors.
, [1990] 1 S.C.C.12, followed.
108 Hingir Rampur Coal Co. Ltd. & Ors.
vs State of Orissa & Ors.
, [1961] 2 S.C.R.537, Justice Wanchoo 's dissent explained.
1.3 There is a difference in principle between a tax on royalties derived from land and a tax on land measured by reference to the income derived therefrom.
A tax on buildings does not cease to be such merely because it is quantified on the basis of the income it fetches.
But in the impugned legislation the levy is not measured by the income derived by the assessee from the land, as is the case with lands other than mineral lands.
The measure of the levy is the royalty paid, in respect of the land, by the assessee to his lessor which is quite a different thing.
The impugned statute only purports to levy a cess on the annual value of all land.
There is a clear distinction between tax on land and tax on income arising from land.
The former must be one directly imposed on land, levied on land as a unit and bearing a direct relationship to it.
A tax on royalty cannot be said to be a tax directly on land as a unit.
Hence the cess is outside the purview of Entry 49 List II.
[148H, 149A D] Ajay Kumar Mukherjea vs Local Board of Barpeta, [1965] 3 Ss.
C.R. 47; Ralla Ram vs The province of East Punjab, [1948] F.C.R.207; Buxa Dooars Tea Co. vs State, [1989] 3 S.C.R.211; Bhagwan Dass Jain vs Union of India, ; and R.R. Emgomeeromg Co. vs Zila Parishad, ; , referred to.
Union of India vs Bomnbay Tyre International, [1984] 1 S.C.R.347; Re: A reference under the Government of Ireland Act, 1920 and Section 3 of the Finance Act (Northern Ireland), 1934, (1963) 2 All E.R.III, cited.
If the levy in question cannot be described as a tax on land, it cannot be described as fee with regard to land either.
[169A] 2.1 Section 10 of the Orissa Cess Act, 1962 earmarks the purposes of utilisation of only fifty per cent of the proceeds of the cess and that, too, is limited to the cess collected in respect of "lands other than lands held for carrying on mining operations".
Therefore the levy cannot be correlated to any services rendered or to be rendered by the State to the class of persons from whom the levy is collected.
Accordingly the levy cannot be treated as a fee which the State legislature is competent to legislate for under entry 66 of the State List.
[153E F] 2.2 Even assuming that the levy is a fee, the State legislature can impose a fee only in respect of any of the matters in the State List.
The 109 entry relied upon for this purpose i.e. Entry 23 is itself "subject to the provisions of List I with respect to regulation and development" of mines and minerals under the control of the Union.
Under Entry 54 of List I, regulation of mines and mineral development is in the field of parliamentary legislation "to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".
Such a declaration is contained in Section 2 of the .
The validity of the impugned Act cannot be upheld by reference to Entry 23 List II.
[153G H, 154A, 168D] 3.
There is a difference between the 'object ' of the Act and its 'subject '.
The object of the levy may be to strengthen the finances of local bodies but the Act has nothing to do with municipal or local administration.
Accordingly State 's reliance on Entry 5 of List II is plainly too tenuous.
[164D] 4.
The answer to the question whether the State Legislature was denuded of its competence to enact the impugned legislation because of the Parliament having enacted the depends on a proper understanding of the scope of the Act and an assessment of the encroachment made by the impugned State legislation into the field covered by it.
[161D] 4.1 The mere declaration of a law of Parliament that it is expedient for an industry or the regulation and development of miners and minerals to be under the control of the Union under Entry 52 or entry 54 of List I does not denude the State legislatures of their legislative powers with respect to the fields covered by the several entries in List II or List III.
Particularly, in the case of a declaration under Entry 54, this legislative power is eroded only to the extent control is assumed by the Union pursuance to such declaration as spelt out by the legislative enactment which makes the declaration.
The measure of erosion turns upon the field of the enactment framed in pursuance of the declaration.
[161E F] 4.2 In assessing the field covered by the Act of Parliament in question, one should be guided not merely by the actual provisions of the Central Act or the rules made thereunder but should also take into account matters and aspect which can legitimately be brought within the scope of the said statute.
Viewed in this light and in the Light of the provisions of the Bihar Cess Act the conclusion seems irresistible that the State Act has trespassed into the field covered by the Central Act 110 viz. Mines and Minerals (Regulation and Development)Act, 1957.[163F] 4.3 The impugned legislation which stands impaired by the Parliamentary declaration under Entry 54, can hardly be equated to the law for land acquistion or municipal adminstration which are traceable to different specific entries in List II or List III [163G H] Hingir Rampur Coal Co. Ltd. & Ors.
vs State of Orissa & Ors.
; ; State of Orissa vs M.A. Tulloch & Co., ; and Indian Cement & Ors vs State of Tamil Nadu & Ors., [1990]1 S.C.C. 12 followed.
State of Haryana vs Chanan Mal, ; ; Ishwari Khatan Sugar Mills (P) Ltd vs State of U.P. ; and Western Coalfields Ltd. vs Special Area Development Authority.
, [1982] 2 S.C.R.1,distinguished.
Indian tobacco Co. Ltd. vs Union, [1985] Supp. 1 S.C.R. 145; State of West Bengal vs Union [1964] 1.
S.C.R. 371; Central Coalfields vs State of M.P., A.I.R. (1986) M.P.33; M. Karunanidhi vs Union of India, ; ; State of Tamil Nadu vs Hind Stone etc.
; , ; I.T.C. vs State of Karnataka, ; Bharat Coking Coal vs State of Bihar, ; ; Kannan Dewan Hills Co. vs State of Kerala, [1973] 1.
S.C.R. 356; Baijnath Kedia vs State of Bihar ; ; H.R.S. Murthy vs Collection of Chittoor & Ors.
[1964] 6 S.C.R.; Ch.
Tika Ramji & Ors.
vs State of U.P.,[1956] S.C.R. 393; Laxmi Narayan Agarwala vs State, A.I.R. 919830 Ori.210; Bherulal vs State, A.I.R. (1965) Raj. 161; Sharma vs State A.I.R. (1969) P&H 79 and Saurashtra Cement & Chemical Industries Ltd. vs Union , referred to.
Trivedi & Sons vs State of Gujarat.
[1986] Suppl.
S.C.C. 20, cited.
Section 6 of the Bengal Cess Act, 1880 specifically enacts that the cess will be on royalty from mines and quarries and on the annual net profit of railways and tramways.
The further amendments to Section 6 have not changed this basic position.
Though the Section referees also to the value of the mineral bearing land, that furnishes only the maximum upto which the cess, based on royalty, could go.
Therefore, the cess is levied directly on royalties from mines and quarries.
The different notifications issued by the State of Bihar under section 6 111 of the Act determining the rate of cess on the amount of rayalty of all minerals of the State place the matter beyond all doubt.
The levy is a percentage or multiple of the royalty depending upon the kind of mineral and in the case of iron ore the method of extraction and nature of the process employed.
There are no clear indications in the statute that the amounts are collected by way of fee and not tax.
Section 9 indicates that only a small percentage goes to the district fund and the remaining forms part of the consolidated fund of the State " for the constrution and maintenance of other works of public utility".
However, the proviso does require at least ten percent to be spent for purposes relating to mineral development.
Even the assumption that the levy can be treated, in part, as a fee and, in part, as a tax will not advance the case of the respondents.
Therefore, the levy of cess sunder the Bengal Cess Act, 1880 is declared invalid.
[169C F,H,170A] Indian Cement & Ors.
vs State of Tamil Nadu & Ors., followed.
Central Coalfields Ltd. vs State (CWJC 2085/89 decided on 6.11.90 by Patna High Court, referred to.
5.1 The attempt to sustain the tax under the Bengal Cess Act 1880 on the basis of Article 277 cannot also succeed.[171C] Ramkrishna Ramanath vs Janpad Sabha, [1962]Suppl.
3.S.C.R. 70; Town Municipal Committee vs Ramachandra ; , referred to.
The levy of cess under section 11 of the Madhya Pradesh Upkar Adhiniyam, 1981 is not covered by Entry 49 or Entry 50 of List II and is therefore, ultra vires.
, [172B] M.P. Lime Manufacturers ' Association vs State, A.I.R. (1989) M.P. 264 referred to.
6.1 Under Section 9 of Madhya Pradesh Karadhan Adhiniyam, 1982 the proceeds of the cess are to be utilised only towards the general development of mineral bearing areas.
Although there is no provision for the constitution of a separate fund for this purpose as is found in relation to the cesses levied under Part II or Part III of the Act yet this consideration alone does not preclude the levy from being considered as a fee.
The clear ear marking of the levy for purposes connected with development of mineral areas was rightly considered by 112 the High Court, as sufficient to treat it as a fee.
The High Court was also right in holding that such a fee would be referable to item 23 but out of bounds for the State Legislature, after the enactment of the .
[171F H] Srinivasa Traders vs State, ; , referred to.
The grant of refund is not an automatic consequence of a declaration of illegality i.e. where the levy of taxes is found to be unconstitutional, the Court is not obliged to grant an order of refund.
Therefore a finding regarding the invalidity of a levy need not automatically result in direction for a refund of all collections thereof made made earlier.
The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two deferent things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion.
Once the principle that the Court has a discretion to grant or decline refund is recognised, the ground on which such discretion should be exercised is a matter of consideration for the Court having regard to all the circumstances of the case.
The Court can grant, would or restrict the relief in a manner most appropriate to the situation before it is such a way as to advance the interests of justice.
The Court is entitled to refuse the prayer for good and valid reasons.
Laches or undue delay or intervention of third party rights would clearly be one of those reasons.
Unjust enrichment of the refundee may or may not be another.
Also there is no reason why the vital interest of the State should not be a relevant criterion for deciding that a refund should not be granted.
[185H, 186A C, D & E 181D E] 7.1 In the instant case though the levy of the cess is unconstitutional, yet there shall be no direction to refund to the assessees of any amounts of cess collected until the date on which the levy in question has been declared unconstitutional.
This, in regard to the Bihar cases, will be the date of this judgment i.e. 4.4.1991.
In respect of Orissa and Madhya Pradesh cases the relevant date will be the date on which the concerned High Court has declared the levy unconstitutional i.e.22.12.1989 in case of Orissa and 28.3.1986 in case of Madhya Pradesh.
The dates of the judgments of the appropriate High Court, may not constitute a declaration of law within the scope of Article 141 of the Constitution, but it cannot be gainsaid that the State cannot, on any ground of equity, be permitted to retain the cess collected on and after the date of the High Court 's judgment.
Accordingly the State should refund the amounts of cess collected after the relevant dates to assesses directly or in the Coalfields from whom they were collected, with 113 interest at the rate directed by this Court or mentioned in the undertaking from the date of the relevant judgment to the actual date of repayment.
The Coalfields, when they get the refunds, should pass on the same to their customers, the assessees.
[186F G, 187B C] India Cement & Ors.
State of Tamil Nadu & Ors, [1990] 1 S.C.C.12, followed.
Linkletter, 14 L Ed.
(2d) 601; Sunburst.
77 L.Ed.310; Mahabir Kishore & Ors.
vs Stte of Madhya Pradesh, [1989] 4 S.C.C. 1; Chhotabhai Jethabhai Patel & Co. vs Union of India, ; ; State of Madhya Pradesh vs Bhailal Bhai & Ors., ; ; Tilok Chand Motichand vs Munshi, [1969] 2 S.C.R> 824; Ramchandra Shankar Deodhar vs State of Maharashtra, ; ; Shri Vallabh Glass Works Ltd. vs Union of India, [1984] 3 S.C.R> 180; State of M.P. vs Nandlal Jaiswal, [1986] 4 S.C.C.566 ' D. Cawasji & Co. vs State of Mysore, [1975] 2 S.C.R.511; Salonah Tea Co. Ltd. vs Superintendent of Taxes, ; and Lakshmi Narain Agarwala vs State, A.I.R. (1983_ Orissa 210, referred to.
Behram Khursheed Pesikaka vs State of Bombay, [1955] 1 S.C.R.613; R.M.D. Chamarbaugwala vs Union of India, ; ; M.P.V. Sundararamier & Co. vs State of Andhra Pradesh & Anr.
, ; ; West Ramnad Electric Distribution Co. vs State of Madras, ; ; M.L.Jain vs State of U.P., [1963] suppl. ; K.T. Moopil Nayar vs State of Kerala & Anr., [1961] 3 S.C.R.77; Balaji vs I.T.O. Special Investigation Circle, ; ; Raja Jagannath Bakshi Singh vs State of U.P., ; ; Prem Chand Garg vs Excise Commissioner, U.P. Allahabad, [1963] Suppl.
1 S.C.R. 885 and I.C. Golaknath & Ors.v.
State of Punjab & Ors.
,[1967] 2 S.C.R. 762, cited.
The undertaking given by the parties or interim directions given by the Court cannot be understood in such a manner as to conflict with the Court 's final decision.
</s>
|
<s>[INST] Summarize the judgementCivil Appeal No. 1038 of 1973.
Appeal by certificate from the Judgment and Order dated the 19th February 1973 of the Calcutta High Court in Appeal from Original Order No. 200 of 1971.
section Chowdhuri, P.P. Ginwala, T.A. Ramachandran and D.N. Gupta for the Appellants.
V.S. Desai, Champt Rai and Miss A. Subhashini for Respondents No. 1 & 2.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by certificate under Article 133 of the Constitution arises out of a writ petition filed by the appellants under Article 226 of the Constitution of India before the High Court of Calcutta.
The appellants are partners of a firm of Solicitors known as M/s. Orr Dignam & Co. having its office at Calcutta.
The appellants acted as the Solicitors of a German Corporation known as Ferbwerke Hoechst Aktiengesellschaft Vormals Mester Lucius & Bruning (a Corporation organised under the law of Federal Republic of Germany) (hereinafter referred to as 'the German Corporation ' ) in two suits filed on the Original Side of the Calcutta High Court one Suit No. 511 of 1962 filed by the Bengal Chemical and Pharmaceutical Works Ltd. against German Corporation and another Suit No. 1124 of 1962 filed by the German Corporation against the Bengal Chemical and Pharmaceutical Works Ltd. on the alleged infringement of a patent.
The appellants were instructed by a firm of Solicitors in London namely M/s. Ashurst, Morris, Crisp & Co. (hereinafter referred to as 'the London Solicitors ') who were also acting for the German Corporation by a cable dated May 31, 1965 to retain in the said suits Mr. Blanco White Q.C., a resident of the United Kingdom, who was a barrister having considerable practice in the branch of patent law.
On his arrival in India, the appellants accordingly retained Mr. Blanco White as the counsel to argue the case of their clients the German Corporation even though they did not deliver any briefs to him and also did not 390 pay or undertake any obligation to pay any fees for his services.
The briefs had been earlier delivered by the London Solicitors.
It is stated that they did not know as to how much amount was payable to him by the London Solicitors by way of fees.
The hearing of one of the said two suits lasted for thirteen days commencing from January 27, 1970 and was concluded on February 16, 1970.
Mr Blanco White left India on February 17, 1970 after the hearing was over without making any arrangement regarding the payment of income tax on the fees earned by him by arguing the case of the German Corporation.
Thereafter on February 19, 1970, the appellants received a notice from the Income tax Officer, 'A ' Ward, Foreiga Section asking them to furnish information about the fees earned in India by Mr. Blanco White as counsel engaged by them to argue the case of their clients i.e. the German Corporation and also drawing their attention to the liability arising under section 195 (2) of the Income tax Act, 1961 (hereinafter referred to as 'the Act ') which required them to deduct the tax payable under the Act at source on payments made to a non resident.
The appellants sent a reply to that letter on February 24, 1970 stating that Mr. Blanco White had been engaged by the London Solicitors of the German Corporation to appear before the Calcutta High Court on behalf of the German Corporation and that they had neither briefed him nor had they incurred any liability to pay him any fees.
They, therefore, denied their liability under section 195(2) of the Act.
Incidentally it may be stated here that the appellants referred to one other suit i. e. Suit No. 422 of 1963 on the file of the Calcutta High Court filed by the German Corporation against Albert David Ltd. in which also Mr. Blanco White had been engaged for the German Corporation.
Thereupon by a letter dated February 27, 1970 the Income tax Officer informed the appellants that he proposed to proceed against them under section 163 (1) of the Act treating them as the agents of Mr. Blanco White on the ground that the income in question had arisen on account of the business connection that existed between the appellants and Mr. Blanco White.
To this, the appellants sent a long reply dated March 10/11, 1970 denying their liability to be proceeded against under section 163 (1) of the Act.
In the course of the said reply, the appellants contended inter alia that they had not either engaged or briefed Mr. Blanco White in the three suits on the file of the Calcutta High Court; that they had not paid or promised to pay any fees lo him and that, therefore, no income had accrued to Mr. Blanco White on account of any business connection that existed between them and Mr. Blanco White.
The appellants further contended that as Mr. Blanco White was a 391 barrister who was not carrying on any business but had only, rendered professional service in Calcutta, the connection if any, could not be a business connection.
They also questioned the jurisdiction of the Income tax Officer to make any assessment treating them as the representative assessees of Mr. Blanco White.
The Income tax Officer by his letter dated March 25, 1970 rejected the plea of the appellants and called upon them to appear before them on April 18, 1970 to make any other submission that they had to make.
Thereafter the appellants filed a petition under Article 226 of the Constitution before the High Court of Calcutta and obtained a rule nisi on May 25,1970) calling upon the Income tax Officer, the Commissioner of Income tax West Bengal and the Union of India to show cause as to why the proposal to initiate proceedings under the Act as stated above should not be quashed and a writ in the nature of mandamus prohibiting them from proceeding against the appellants under section 163(1) of the Act should not be issued.
The petition was contested by the respondents.
In the Counter Affidavit filed by the Income tax Officer, it was asserted that the Department had received information that Mr. Blanco White had charged Rs. 17,000/ per day by way of fees for appearing in the Calcutta High Court in the suits referred to above; that Mr. Blanco White was not domiciled in India; that inasmuch as his stay in India did not exceed ninety days it was not necessary for him to obtain a Tax Exemption Certificate for leaving India; that the appellants had acted as instructing Solicitors to the German Corporation in the three suits in which Mr. Blanco White had argued as counsel; that he could not have, according to the Calcutta High Court Rules (Original Side) appeared before that court unless he was instructed by an Attorney of that Court was in the instant case happened to be the appellants and that, therefore.
there existed a business connection which brought the appellants within the scope of section 163(1) of the Act.
It was also contended by the respondents that the petition was premature as the matter had still to be decided in accordance with the procedure prescribed by the Act.
The learned Single Judge who heard the petition was of the view that the question whether the case came within the purview of section 163(1) had to be determined after ascertainment of facts by the Income tax Officer and that therefore, the petition was liable to be dismissed on the ground that it was a premature one.
Accordingly he dismissed it without expressing any opinion on the merits of the case.
Aggrieved by the decision of the Single Judge, the appellants preferred an appeal before the Division Bench of the Calcutta High Court.
The Division Bench dismissed the appeal holding, inter 392 alia, that from the facts disclosed before the Court it appeared that from May 31, 1965 upto February 16, 1970 there was business connection (directly of indirectly through correspondence) between the appellants firm and the non resident British counsel, Mr. Blanco White, that it could not be said that there was no element of continuity and that the transaction was a solicitory and isolated one and that taking into account the surrounding circumstances and particularly the relationship between the Solicitors and a counsel, an agency could very well be said to have been established between the appellants ' firm and the non resident British counsel, Mr. Blanco White.
The Division Bench further held that there was business connection between them and that it was not possible to accept the contentions of appellants that no income either accrued or arose to Mr. Blanco White in India.
The appeal was accordingly dismissed.
On a certificate granted by the Division Bench under Article 133 of the Constitution, the appellants have come up in appeal to this Court against the judgment of the Division Bench of the High Court.
It should be stated here that alongwith the petition for a certificate under Article 133 of the Constitution, the appellants filed an application before the High Court for stay of further proceedings before the Department.
On that application, the High Court passed an order on March 12, 1973 stating that the order of stay already granted would continue subject to the following modification. "(1) The respondents will be at liberty to decide after giving the petitioners a hearing whether the petitioners firm should be treated as agent of Mr. Blanco White under section 163 of the Income tax Act.
1961: (2) If they so decide the respondents will be at liberty to issue a notice under section 148 of the Act but will not take any further steps thereafter until the disposal of the application; (3) The petitioners will also be at liberty to appeal from any order made under section 163 without prejudice to their contentions in the proposed appeal to the Supreme Court".
We are informed that pursuant to the liberty given by the said order, the Income tax Officer made an order on March 23, 1977 treating the appellants ' firm as the agent of Mr. Blanco White under section 163(1) of the Act and also on the same date issued a notice 393 under section 148 of the Act to the appellants to file a return of the income of Mr. Blanco White.
It is also stated that the appellants preferred an appeal against that order before the Appellate Assistant Commissioner without prejudice to the appellants ' contentions in their appeal to this Court.
Ultimately on November 30, 1973 this Court made an order that the appellants might apply to the Appellate Assistant Commissioner for an order of stay in respect of the question whether they were agents of Mr. Blanco White and that at any rate even if the Income tax Officer were to proceed with the case, he would make the assessment but would not make a final demand till the disposal of the appeal.
It is further stated that pursuant to the notice under section 148 of the Act, the appellants filed a 'nil ' return.
Thereafter we are informed that the Income tax Officer intimated the appellants on September 17, 1977 that he had completed the assessment of Mr. Blanco White for the assessment year 1970 71 treating the appellants ' firm as the agent and that copies of the assessment order, demand notice and challan would be forwarded to them after disposal of this appeal.
It is necessary to refer at this stage to certain relevant facts of the case.
The appellants were acting as the Solicitors of the German Corporation in India in the cases referred to above and the London.
Solicitors were acting as its Solicitors in London.
Suits Nos.
511 and 1124 had been instituted in 1962 and suit No. 422 in 1963.
On May 31, 1965, the London Solicitors sent a cable to the appellants which read as follows: " Dignior Calcutta We act for Farewerke Hoechst this country and understand that you act India stop in connection acting infringement Indian Tolbutamide patent have been instructed to retain Blanco White as counsel to attend hearings Calcutta and Bombay stop Imperative to know dates of respective actions since counsel can only accept subject to other Commitments stop Please cable hearing dates if known or date when Information available stop our Ref Lcc.
Ashursts London Col Blanco White REF: LCC.
" The above cable shows that the London Solicitors had sought information about the suits in Calcutta to enable them to engage Mr. Blanco White to plead on behalf of the German Corporation in the said suits.
On December 23, 1969, the London Solicitors 394 wrote a letter to the appellants in which it was stated that the copies of certain documents sent by the appellants had been handed over to Mr. Blanco White in addition to copies of certain other documents which they themselves had handed over to him.
A part of the aforesaid letter which is relevant for the purpose of the present case, is reproduced below: ".
We are asking Mr. Divecha of Hoechst Pharmaceuticals Limited, Bombay, to arrange for copies of the evidence in the Bombay case to be sent to you.
The formulation of the evidence can then be discussed between you and your Counsel and Mr. Blanco White when he arrives in Calcutta.
The remaining documents which we are sending you are three bound volumes of pleadings which you sent to us in the early stages but which will no doubt be of use to you at the trial, Mr. Blanco White of course has copies of all the pleadings in the three cases.
There are a number of points which Mr. Blanco White has asked us to put to you for consideration and these are as follows: 1.
It is not entirely clear from the pleadings that Indian Patent No. 66049 is a document in the Albert David case.
Will you please consider whether this specification may have to be strictly proved ? 2.
In the infringement action by Hoechst against Bengal Chemicals, the defendants have objected there is no claim against the second and third dependants, that is the inventors named in the Patent.
Mr. Blanco White sees no reason to pursue this point and, subject to your views, would suggest that it is abandoned.
In the threats action by Bengal Chemicals, again subject to your views, Mr. Blanco White would not propose to argue that Hoechst did not in fact threaten proceedings.
Also in the threats action, there is a point which we would mention here on which we are asking Hoechst Pharmaceuticals Limited of Bombay for information.
Bengal Chemicals have said in their affidavits filed in the interlocutory proceedings in April 1962 that they stopped production of Tolbutamide because of the threats made by Hoechst.
395 At the same time it appears that they published advertisements in the Punjab Medical Journal and the Indian Medical Journal of Ist May of that year.
We are asking Hoechst Pharmaceuticals if they can say when these advertisements would have had to have been sent to those Journals for publication on that date.
Mr. Blanco White will be flying in Calcutta on BOAC Flight No. 914 leaving London on Tuesday, 20th January 1970 and arriving at 6.40 a.m. local time on Wednesday, 21st January.
He would like to have preliminary discussion with you and counsel on matters of procedure, etc.
On Thursday morning and possibly Wednesday afternoon.
We believe that the gentlemen from Hoechst, Frankfurt plan to arrive in Calcutta on Thursday, 22nd January, so as to be available for more detailed talks starting on Friday.
We are asking Hoechst, Bombay to arrange for hotel accommodation for Mr. Blanco White.
" Then there is the letter dated January 8, 1970 written by the London Solicitors to the appellants enclosing copies of the briefs which had been delivered by the London Solicitors to Mr. Blanco White.
The said suits came up for hearing on January 27, 1970.
The appellants had engaged Mr. P.P. Ginwala, Mr. A.K. Basu and Mr. Sankar Ghose to appear on behalf of the German Corporation in the said suits.
In paragraph 6 of the writ petition filed before the High Court out of which this appeal arises, the appellants have stated as follows: "On 27th January 1970 the said suits were called on before his Lordship the Hon 'ble Mr. Justice K.L. Roy.
It was decided to take up Suit No. 1124 of 1962 first.
In the said suit Mr. Blanco White, Q.C. appeared with Mr. P.P. Ginwala, Mr. A.K. Basu and Mr. Sankar Ghose.
The said suit No. 1124 of 1962 was heard on 27th, 28th, 29th, 30th January 1970, 2nd, 3rd, 4th, 5th, 6th.
9th, 12th, 13th and 16th February 1970 and judgment was reserved.
The other suits were adjourned until after the judgment.
" In his letter dated March 21, 1973 written to the London Solicitors marked as Annexure 'E ' to the writ petition, Mr. Blanco White while attempting to make out a case supporting the appellants admitted that he was not disputing that when he was actually in 396 Court in Calcutta, he was, formally, there on instructions from the appellants as attorneys.
The relevant part of that letter reads: "Dear Mr. Gane, Farbwerke Hoechst vs Bengal Chemical.
Certainly I can confirm that, when I appeared before the Calcutta High Court in January and February 1970.
I was briefed by your firm and not by Orr.
Dignam & Co. Accordingly, whilst I would not dispute that when I was actually in Court in Calcutta I was, formally, there on instructions from Orr.
Dignam as attorneys of record, all arrangements relating to my fees were made with you (as the English Solicitors of Hoechst in Germany) and Orr.
Dignam were at no time concerned with these arrangements." Mr. Blanco White left India on February 17, 1970 without making any arrangement for the settlement of his liability under the Act.
When the Income tax Officer issued the notice dated February 19, 1970 to the appellants drawing their attention to the provisions contained in section 195(2) of the Act and requesting them to furnish information regarding the income earned by Mr. Blanco White by arguing the case before the Calcutta High Court on behalf of the German Corporation, the appellants replied on February 24, 1970 stating that the London Solicitors had engaged Mr. Blanco White to appear on behalf of the German Corporation before the Calcutta High Court; that the appellants had not briefed him nor did they know on what fees, if any, he had been engaged.
In their letter dated March 10/11, 1970 to the notice dated February 17, 1970 issued by the Income tax Officer to the appellants under section 163(1) of the Act, the appellants again stated that they had not engaged or delivered any brief to Mr. Blanco White and that they had no business connection with him.
It was urged before the High Court by the appellants that there was no sort of connection between the appellants and Mr. Blanco White and even if there was any connection, it was just a casual one and could in no case be termed as business connection: that they had not undertaken to pay any fees to him for appearing in the suits and that, therefore, the appellants were not liable to be assessed.
The Division Bench of the High Court which heard the appeal came to the conclusion that there was business connection between the appellants and Mr. Blanco White; that it could not be said that there was no element of continuity and the transaction was a stray or an isolated one and that the appellants were not entitled to the issue of the writ prayed for on the facts and in the circumstances of the case.
397 For proper appreciation of the contentions advanced by the parties before us, it is necessary to refer to some of the provisions of the Act.
Section 160(1)(i) of the Act provides that in respect of the income of a non resident specified in sub section (1) of section 9 of the Act, the agent of the non resident, including a person who is treated as an agent under section 163 is a representative assessee.
Section 161 (1) of the Act stipulates that every representative assessee, as regards the income in respect of which he is a representative assessee, shall be subject to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially, and shall be liable to assessment in his own name in respect of that income; but any such assessment shall be deemed to be made upon him in his representative capacity only, and the tax shall, subject to the other provisions contained in Chapter XV of the Act be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him.
Section 163 (1)(b) and (c) of the Act provides that for purposes of the Act any person in India who has any business connection with the non resident or from or through whom the non resident is in receipt of any income whether directly or indirectly can be treated as an agent of such nonresident.
Section 5(2) of the Act inter alia provides that subject to the provisions of the Act, the total income of any previous year of a person who is a non resident includes all income from whatever source derived which accrues or arises or is deemed to accrue or arise to him in India during such year.
The relevant part of section 9(1) of the Act reads: "(1) The following incomes shall be deemed to accrue or arise in India (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through of from any asset or source of income in India or through the transfer of a capital asset situate in India; Explanation For the purposes of this clause (a) in case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India 398 From the facts stated above it is seen that from the year 1965 there was correspondence between the appellants and the London Solicitors who in their turn had engaged Mr. Blanco White in connection with the suits in question.
It shows that there was a connection between the appellants and Mr. Blanco White though it was an indirect one.
After his arrival in India, it must be assumed that the appellants had done all that was suggested in the letter of the London Solicitors dated December 23, 1969.
It is admitted that Mr. Blanco White appeared with the Indian counsel engaged by the appellants and argued the case on behalf of the client of the appellants in the suit in which they were acting as solicitors.
Even though the appellants did not hand over ally briefs directly to Mr. Blanco White, it is seen that part of the records handed over to Mr. Blanco White by the London Solicitors consisted of the copies of records sent by the appellants to the London Solicitors.
It is further seen that Mr. Blanco White appeared before the High Court alongwith the Indian counsel engaged by the appellants, though with the leave of the Court granted presumably under section 32 of the .
We are also of the view that there must have been discussion between the appellants and Mr. Blanco White before the case was argued by him.
Moreover, Mr. Blanco White could appear only with the consent of the appellants who were the Solicitors on record.
In the circumstances, it cannot be said that the High Court was wrong in holding that there was connection between the appellants and Mr. Blanco White.
The said connection cannot also be termed as a casual one having regard to the period over which it had existed.
It was real and intimate and Mr. Blanco White earned the fees for arguing the case in India only through the said connection.
The case satisfies the test laid down by this Court in Commissioner of Income tax, Punjab vs R.D. Aggarwal and Co. and Anr.
for holding that there was connection between the appellants and Mr. Blanco White.
The finding of the High Court on the above question also appears to be well founded The only remaining question which needs examination is whether the said connection was a business connection.
The contention of the appellants is that a professional connection cannot amount to a business connection attracting section 9(1) of the Act.
In support of this contention the appellants depend upon the definitions of the expressions 'business ' and 'profession ' found in 399 section 2 (13) and section 2(36) of the Act.
Section 2(13) of the Act reads: "business" includes any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture".
Section 2(36) of the Act provides: ""Profession" includes vocation ".
Section 14 of the Act which enumerates the heads of income which give rise to a liability to tax under the Act treats the income from profits and gains of business and profession as a single head.
Sections 28 to 44B of the Act constitute the fascicule of provisions dealing generally with the computation of income from business and profession although not all those provisions are applicable to income from a profession.
The definition of the expression 'business ' given in the Act is an inclusive one.
The expression 'business connection ' however is not defined in the Act.
It is manifest that the words in section 9(1) and section 163 are comprehensive enough to include all heads of income mentioned in section 14 of the Act.
It is no doubt true that there is specific reference to 'business ' in section 9(1) and there is no reference to 'profession '.
But no tenable reason is discernible from the statute for excluding income arising out of profession from its scope.
In this connection two submissions are made on behalf of the appellants (1) that it was the intention of the Parliament to exclude non residents engaged in learned professions from the operation of section 9(1) and that even if the intention of the Parliament was not to exclude such persons from section 9(1) since there is an omission to refer to them expressly the lacuna should not be made good by giving a wide interpretation to the expression 'business connection '.
We do not find that there is any substance in the first submission.
There could be no good reason for the Parliament for excluding non resident professional men from the purview of section 9(1) of the Act.
There is no material on which we can reach that conclusion.
In so far as the second submission is concerned, we have to examine whether it would really amount to filling up a lacuna in the section if the expression 'business connection ' is interpreted as including within its scope 'Professional Connection ' also.
400 In Commissioner of Income Tax, Bombay vs Currimbhoy Ebrahim & Sons Ltd., Sir George Rankin speaking for the Judicial Committee of the Privy Council while construing the expression 'business connection ' in section 42(1) of the Indian Income Tax Act 1922 observed: "The phrase " business connection " is different from, though doubtless not unrelated to, the word "business" of which there is a definition in the Act ".
The expression 'business ' does not necessarily mean trade or manufacture only.
It is being used as including within its scope professions, vocations and callings from a fairly long time.
The Shorter oxford English Dictionary defines 'business ' as 'stated occupation, profession or trade ' and ' a man of business ' is defined as meaning 'an attorney ' also.
In view of the above dictionary meaning of the word 'business ' it cannot be said that the definition of business given in section 45 of the Partnership Act, 1890 (53 & 54 Vict. c. 39) was an extended definition intended for the purpose of that Act only.
Section 45 of that Act says: "The expression "business includes every trade, occupation, or profession".
Section 2(b) of the also defines " business" thus: " "business" includes every trade, occupation and profession".
The observation of Rowlatt, J. in Christopher Barker & Sons vs Commissioner of Inland Revenue.
"All professions are business, but all businesses are not professions,. " also supports the view that professions are generally regarded as businesses.
The same learned Judge in another case Commissioner of Inland Revenue vs Marine Steam Turbine Company Limited held: The word 'business ' however is also used in another and a very different sense, as meaning an active occupation or profession continuously carried on and it is in this sense the word is used in the Act with which we are here concerned.
" 401 The word business is one of wide import and it means an A activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income.
We are of the view that in the context in which the expression business connection is used in section 9 (1) of the Act there is no warrant for giving a restricted meaning to it excluding professional connections from its scope.
There is very little substance in the submission made on behalf of the appellants that since Mr. Blanco White could not appear as counsel as of right either under the or under the Calcutta High Court original Side Rules he could not be treated as having any business connection with the appellants.
As noticed earlier Mr. Blanco White appeared alongwith the Indian counsel engaged by the appellants and the appellants continued to represent the German Corporation when Mr. Blanco White argued the case before the High Court.
It is difficult to hold that he was a stranger to the appellants.
The appellants may not have engaged him to argue the case but they allowed him at the request of the London Solicitors to argue the case and willingly cooperated with him in doing so.
That it was their case that Mr. Blanco White argued cannot be denied.
The appellants may not have undertaken to pay his fees but he could not have argued and earned the fees without associating himself with the appellants.
The fact that Mr. Blanco White being a barrister could not file a suit to recover the fees would not make any difference in this case as in the letter dated August 19 1980 written by the London Solicitors to the appellants which is produced before us it is stated that the fees of Mr. Blanco White amounted to 2200 with refreshers at the rate of 220 per day.
We need not go into the correctness of these figures but the fact remains that Mr. Blanco White has earned income for the work done in India.
We do not propose to go into question as to what would happen if no fees have been realised by him at all.
In view of the foregoing we are of the view that the judgment of the Division Bench of the High Court which is under appeal does not call for interference.
In the result the appeal is dismissed.
I he parties shall however bear their costs.
V.D. K .
Appeal dismissed.
[/INST]A news item published in the Blitz weekly of which the respondent was the Editor, stated that the appellant enticed a female detenu who alongwith him, was detained in the Central Jail under the Maintenance of Internal Security Act and that she had conceived through him and that on getting released on parole she had the pregnancy terminated.
It was further stated that a confidential enquiry conducted by a senior officer of the Home Department revealed that it was the appellant who was responsible for the detenu 's pregnancy.
On release from jail the appellant lodged a criminal complaint against the respondent.
Before the Magistrate the respondent prayed that the report of the Enquiry Officer be sent for.
But the report could not be obtained because the State Government claimed privilege in respect of that report.
When the Magistrate proceeded to record the plea of the accused under section 251 of the Code of Criminal Procedure, the respondent requested that his plea be recorded only after the enquiry report was produced; but the Magistrate rejected the request.
The respondent thereupon filed a revision before the High Court for setting aside the order of the Magistrate.
Waiving privilege the State Government produced a copy of the enquiry report before the High Court.
A single Judge of the High Court quashed the proceedings on the view that the respondent 's case clearly fell within the ambit of the ninth exception to section 499, I.P.C. because, according to him, the publication had been made honestly in the belief of its truth and also upon reasonable ground for such belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances.
On the question whether the High Court was right in quashing the order of the Magistrate, remanding the case to the Magistrate.
628 (Per majority: Chinnappa Reddy and A.P. Sen JJ Baharul Islam J dissenting) ^ HELD: The order passed by the High Court should be set aside.
The Magistrate should record the plea of the accused under section 251 Cr.
P.C. and thereafter proceed with the trial according to law.
(Per Chinnappa Reddy, J.) To attract the ninth exception to section 499, I.P.C. the imputations must be shown to have been made (1) in good faith and (2) for the protection of the person making it or of any other person or for the public good.
The insistence of the section is upon the exercise of due care and attention.
The standard of care and attention must depend on the circumstances of an individual case, the nature of imputation, the need and the opportunity for verification and so on.
In every case it is a question of fact to be decided on its particular facts and circumstances.
[631 A B] Harbhajan Singh vs State of Punjab, @ 244, Chaman Lal vs The State of Punjab ; @ 916 and 918.
Several questions may arise for consideration depending on the stand taken by the accused at the trial and how the complainant proposed to demolish the defence.
In the instant case the stage for deciding these questions had not arrived yet.
Answers to such questions, even before the plea of the accused was recorded, could only be a priori conclusions.
[632 H] The respondent 's prayer before the High Court was to quash the Magistrate 's order and not to quash the complaint itself as the High Court has done.
But that was only a technical defect which need not be taken seriously in an appeal under Article 136 of the Constitution where the Court is concerned with substantial justice and not with shadow puppetry.
[630 G] (Per A.P. Sen J.) The order of the High Court quashing the prosecution under section 482 of the Code of Criminal Procedure is wholly perverse and had resulted in manifest miscarriage of justice.
The High Court has pre judged the whole issue without a trial of the accused persons.
The matter was at the state of recording the pleas of the accused under section 251 Cr.
P.C. The circumstances brought out clearly showed that the respondent was prima facie guilty of defamation punishable under section 500 of the Indian Penal Code unless covered by one of the exceptions of section 499 Indian Penal Code.
[635 E F] The burden to prove that his case would come within the ninth exception to section 499, namely, that the imputation was in good faith and was for the protection of the interests of the person making it or of any other person or for the public good was on the respondent.
All that the respondent prayed for was that the Magistrate should not proceed to record his plea under section 251 Cr.
P.C. without perusing the enquiry report.
There was no application for quashing the prosecution itself.
C] 629 The enquiry report in respect of which the Government claimed privilege had by itself no evidentiary value.
The contents of that report could not be made use of unless the facts were proved by evidence aliunde.
The report being per se defamatory, it was for the accused to plead the ninth exception in defence and discharge the burden of proving good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for the public good.
[637 E; G; H] Sukro Mahto vs Basdeo Kumar Mahto and Anr.
[1971] Supp.
SCR 329 at 332, Harbhajan Singh vs State of Punjab ; , Chaman Lal vs State of Punjab ; , referred to.
The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege.
Journalists are in no better position than any other person.
Even the truth of an allegation does not permit a justification under the first exception unless it is proved to be in the public good.
The question whether or not it was for public good is a question of fact like any other relevant fact in issue.
If they make assertions of facts as opposed to comments on them, they must either justify these assertions or in the limited cases specified in the ninth exception, show that the attack on the character of another was for the public good or that it was made in good faith.
[638 G H] Dr. N.B. Khare vs M.R. Masani and Ors., ILR 1943 Nag.
347, Arnold vs King Emperor at 169, referred to.
(Per Baharul Islam J.) The Court did not commit any error in quashing the appellant 's complaint.
[646 E] The High Court 's judgment justifies the factual submission of the respondents that their application was under section 482 as well as under sections 397 and 401 of Cr.
P.C. and that they claimed and canvassed the protection under the ninth exception to section 499, I.P.C. The omission in the prayer portion of a petition, particularly in a criminal case, is not fatal.
The High Court, in its revisional jurisdiction, can always grant suitable relief justified by law as well as facts and circumstances of a particular case.
[641 H; 642 D] The definition of "good faith" which is couched in negative terms indicates that lack of good faith has been made a part of the offence which the prosecution has to establish beyond reasonable doubt.
On the other hand, proof by the accused of the report to be an authentic document is enough.
It would create a doubt in the mind of the Court as to the lack of "good faith" on the part of the accused.
[644 F G] If on a complaint made by a citizen alleging laxity in the observance of jail rules, if the report submitted by a high Government official on the basis of an enquiry conducted by him was for public good and if the respondents had reasons to believe its contents to the true, they will be protected under the ninth exception even if the burden of proof of good faith is on the accused.
Good faith need not be proved beyond reasonable doubt.
[645 B] The report of the enquiry officer was exhaustive, reasoned and was based on evidence.
The report leads one to believe the imputations.
If that be so, it 630 cannot be said that the respondents published the report or its summary without due care and attention.
This establishes good faith under the ninth exception to section 499.
Therefore, the publication obviously was for public good.
[646 B C] In the instant case even if the findings of the report be proved to be false, the respondents would be protected.
Sending back the case to the Magistrate would be an exercise in futility and abuse of the process of the criminal court as the High Court has pointed out.
[646 D E]
</s>
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<s>[INST] Summarize the judgementminal Appeal No. 228 of 1970.
Appeal by special leave from the judgment and Order dated the 30th April, 1970 of the Delhi High Court at New Delhi in Criminal Revision No. 90 of 1970.
D. N. Nijhawan, Urmila Kapoor and Kamlesh Bansal, for the appellant.
Sardar Bahadur Saharya, for the respondents.
Respondent No. 1, Kamla Devi was married to the appellant Bhagwan Dutt on January 22, 1957 according to Hindu rites.
out of this wedlock a daughter, Respondent No. 2, was born on November 22, 1957.
On October 18, 1966, Respondent No. 1 filed a petition against the appellant for judicial separation on the ground of desertion and cruelty.
During the pendency of that petition, she filed all application under section 488 of the Code of Criminal Procedure, 1898, in the court of the Magistrate, 1st Class, Delhi, claiming maintenance for herself and for her minor daughter, on the ground that the appellant had neglected and refused to maintain them.
At the date of the application Respondent No. 1 was employed as a stenographer on a monthly salary of Rs. 600/ .
The appellant was at that time earning about Rs. 800/ per month.
However, later on when the case was in the Sessions Court in revision, the monthly income of each of them had increased by Rs. 1501 , approximately.
By his order dated June 6,1969 the Magistrate directed the husband to pay Rs. 250/ per month i.e. Rs. 175/ for the wife and Rs. 75/ for the child for their maintenance.
While fixing the amount of maintenance for the wife, the Magistrate did not take into consideration her own independent income.
Against the order of the Magistrate, the husband went in revision to the Court of Session.
The Additional Sessions Judge was of the view that since the income of the wife was "substantial" and enough to maintain herself".
she was not entitled to any maintenance.
He was further of the opinion that Rs. 75/ p.m. allowed to the child being inadequate, it deserved to be raised to Rs. 125/ p.m. for the period of the pendency of the application in the trial court and thereafter to Rs. 150/ p.m.
He referred the case to the High Court under section 438 of the Code with a recommendation that the order of the Magistrate to the extent it allowed maintenance to the wife, be quashed, but the allowance of the child be enhanced as aforesaid.
485 A learned single Judge of the High Court who heard the reference held that in "making an order for maintenance in favour of a wife under section 488 of the Code of Criminal Procedure the court has not to take into consideration the personal income of the wife as section 488 does not contemplate such a thing".
He therefore declined the refe rence pro tanto, but accepted the same in regard to the enhancement of the allowance of the child.
Aggrieved by the judgment of the High Court, the husband has now come in appeal before us.
The material part of Section 488 of the Criminal Procedure Code is in these terms: "(1) if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
(2) to (5). " The corresponding part of Section 125 in the new Criminal Procedure Code, 1973, which came into force on 1 st April 1974, reads: "125.
(1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority , where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself.
a Magistrate of the first class may, upon proof of a such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. " A comparative study of the provisions set out above would show that while in Section 488 the condition "unable to maintain itself" 486 apparently attached only to the child and not to the wife, in Section 125, this condition has been expressly made applicable to the case of wife.
Does this recasting of the old provision signify ally fundamental change in the law? Or, has this been done merely to clarify and make explicit what was formerly implict ? Section 488 does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances.
The use of the word "may" in Section 488(1) indicates that the power conferred on the Magistrate is discretionary.
A neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband.
of course, the Magistrate has to exercise his discretion in a judicial manner consistently with the language of the statute with the regard to other relevant circumstances of the case.
Nevertheless, the Magistrate has to exercise his discretion primarily towards the end which the Legislature had in view in enacting the provision.
Sections, 488, 489 and 490 constitute one family.
They have been grouped together in Ch.
XXXVI of the Code of 1898 under the caption, "of the maintenance of wives and children".
This Chapter, in the words of Sir James Fitzstephen, provides " a mode of preventing vagrancy, or at least of preventing its consequences".
These provisions are intended to fulfil a social purpose.
Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children.
By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
Thus, S section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties.
The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive.
As pointed out in Thompson 's case(1) "the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provide, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts".
Sub section (2) of section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights.
The stage is now set for appreciating the contentions canvassed by the learned Counsel for the parties.
Mr. Nijhawan, learned Counsel for the appellant contends that if section 488(1) is construed in the light of its primary object and.
the nature of the jurisdiction conferred by it, together with section 489(1), it would be amoly clear that in determining the wife 's claim to maintenance and its quantum, her independent income is a relevant consideration.
in support of this contention, Counsel has referred to Mohd. Ali vs Mt. (1) 6 N.W.P. 205.
487 Sakina Begum(1) Narasimha Ayyar vs Rangathayammal(2); Ploonnabalam vs Saraswathi(3); Ahmed Ali Saheb vs Sarfara linisa Begum (4) and P. T. Ramankutty A chan vs Kalyanikutty(5).
As against the above, Mr. Sardar Bahadur Saharya maintains that the very fact that the Section does not make the inability of a wife to maintain herself, a condition precedent to the grant of maintenanceas it does in the case of child shows that the intention of the Legislature was that the wife 's own income or means should not be taken into account either for determining her right to maintenance or for fixing its amount.
It is further urged that the language of section 489 cannot be called in aid to construe section 488 (1).
Reliance for the main argument has been placed on Major Joginder Singh vs Bibi Raj Mohinder Kaur.(6) In Major Joginder Singh 'section case (supra), the wife had claimed maintenance under section 488, Cr. P. C. both for herself and her minor son.
The husband was a Major in the army, getting Rs. 1070/ p.m.
It is not very clear from the Report as to whether the wife was having any substantial income of her own.
However, an argument was raised that she had her own means of support which should be taken into account for determining her right to maintenance.
The learned Judge who decided the case, negatived the contention, thus : "It is obvious from the language of the section that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself '.
No such condition has been imposed in the case of a wife.
Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have, in my view, omitted to consider the implication of this distinction while construing the scope and effect of section 488.
In my opinion, the ability of the wife to maintain herself was not intended by the legislature to deprive her of the right of maintenance conferred by this section, if she is otherwise found entitled to it. " Commenting on the cases cited before him, the learned Judge further observed : "But if those authorities intend to lay down any rigid rule of law that the only right which a wife possesses under section 488, Cr.P.C., is to claim just subsistence allowance which should merely provide bare food, residence and raiment and that also only if she has no other means or source, then I must with respect, record my emphatic dissent.
" It may be noted that the above principle spelled out from the interpretation of section 488(1) in Major Joginder Singh 's case (supra), (1) A.I.R. 1944 Lah.
(3) A.I.R. 1957 Mad. 693.
(5) A.I.R. 1971 Kerala 22.
(2) A.I.R. 1947 Mad.
(4) A.I.R. 1952 Hyd. 76 (6) A.I.R. 1960 Punjab 249.
488 was carried a step further by the Division Bench in Nanak Chand Banarsi Dass and ors.
vs Cliander Kishore and Ors.(1) to deduce the proposition that the wife 's right to receive maintenance under section 488, Criminal Procedure Code is an absolute right.
In our opinion, one wrong assumption has led to another false deduction.
The mere fact that the language of section 488(1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife 's own separate income or means of support.
There is a clear distinction between a wife 's locus standi, to file a petition under section 488 and her being entitled, on merits, to a particular amount of maintenance thereunder.
This distinction appears to have been overlooked in Major Joginder Singh 's case (supra).
Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate.
As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband.
The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family.
The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.
There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from consideration.
Rather, there is a definite indication in the language of the associate section 489(1) that the financial resources of the wife are also a relevant consideration in making such a determination.
Section 489(1) provides inter alia, that "on proof of a change in the circumstances of any person receiving under section 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit".
The "circumstances" contemplated by section 489(1) must include financial circumstances and in that view,the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife.
Keeping in view the object, scheme, setting and the language of these associate provisions in Chapter XXXVI, it seems to us clear that in determining the amount of maintenance under section 488(1), the Magistrate is competent to take into consideration the separate income and means of the wife.
(1) A.I.R. 1969 Delhi 235.
489 We do not wish to burden this judgment with discussion of all the decisions that have been cited at the Bar.
It will suffice to notice one of them rendered by the Kerala High Court in which Major Joginder Singh 's case (supra) was explained and distinguished.
That case in P. T. Ramankutti vs Kalyankutty (supra) therein, the husband was getting a net salary of Rs. 240/ , while the monthly salary.
of the wife was (after deductions) Rs. 210/ .
The question, was whether the wife in such a financial position had a right to claim maintenance under s.488, Criminal Procedure Code.
after referring to the observations of Dua, J. in Major Joginder Singh 's case (supra) and surveying the case law on the subject, the learned single Judge of the Kerala High Court correctly summed up the position thus ; "To take the view that in granting maintenance under Section 488 to a wife her personal income also can be considered may Prima facie appear to be against the language of the section because the condition "unable to maintain itself" appearing therein attaches itself only to child and not to wife.
But that condition has application only in considering the maintainability of a petition filed under s.488.
A wife can file a petition under that section irrespective of the question whether she is able or unable to maintain herself.
But on her application at the time of the granting of monthly allowance to her there is nothing prohibiting the Court from considering whether she can maintain her self with her own income and if she can, granting her nothing by way of allowance.
" Any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the section as a punitive weapon against their husbands.
It is next contended on behalf of the appellant that section 488 must be deemed to have been partially repealed and modified by section 23 of the (for short, called the Act) which provides that in determining the amount of maintenance, the Court shall have, inter alia, regard "to the value of the wife 's property and any income derived from such property or from the claimant 's own earning or from other sources".
Clause (b) of s.4 of that Act provides "Save as otherwise expressly provided in this Act (a) x x x (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
" The question therefore resolves itself into the issue : whether there is any thing in s.488 which is in consistent withs .23 or any other provisions of the act.
This matter is no longer resititegra.
In Nanak Chand vs Shri Chandra Kishore Agarwala and Ors.(1) this Court held that there is no inconsistency between Act 78 of 1956 and section 488, Criminal Procedure (1) ; 490 Code.
Both could stand together.
The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus.
The law was substantially similar before when it was never suggested that there was any inconsistency with section 488, Cr. P. C. The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
We have said and it needs to be said again, that section 488 is intended to serve a social purpose.
It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution become a hazard to the well being of orderly society.
As against this, section 23 and other provi sions of the Act relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives or dependents under their personal law.
This contention therefore is meritless and we negative the same.
For the reasons aforesaid, we allow the appeal, set aside the judgment of the High Court and send the case back to the trial Magistrate to refix the amounts of maintenance.
In the case of the wife, he shall together with other relevant circumstances, take into account her income also.
In the case of the daughter, he shall afford opportunity to the parties to lead fresh evidence and then refix her allowance.
V.P.S. Appeal allowed.
[/INST]The appellants who owned Dumpers, Rockers and Tractors claimed that these machines were not liable for registration under section 22 of the Indian and as such were not taxable under section 6 of the Bihar and Orissa Motor Vehicles Taxation Act, 1930.
The trial court held that the machinery were motor vehicles within the meaning of section 2(18) of the and were therefore liable for registration under that Act and so to payment of tax under the Taxation Act.
The High Court held that unless it was shown that the vehicles were of a special type adapted for use only in factories or enclosed premises and incapable of running on any other type of roads or public roads the vehicles were motor vehicles and that the three types not being motor vehicles were not liable for registration under section 22 of the Act nor were they subject to payment of tax under the Taxation Act.
Section 2(c) of ' the Taxation Act adopted the definition of motor vehicle contained in the Motor Vehicles Act, 1914.
The Motor Vehicles Act, 1914 was repealed and replaced by the .
The definition of motor vehicle in section 2(18) of the having been redefined the Taxation Act, by the Orissa Amendment Act 2 of 1940 adopted that definition for the purpose of taxation.
The Orissa Amendment Act, 1943 reenacted provisions of sections 2 to 8 of the Taxation Act as the Amendment Act 2 of 1940 was due to expire.
Section 2(18) of the was amended by Act 100 of 1956.
But there was no corresponding amendment in the definition of section 2(c) of the Taxation Act.
It was contended in this Court that under the definition of motor vehicle as it existed prior to amendment or subsequent thereto dumpers, rockers and tractors were not motor vehicles because they were not adapted to use on the road and (2) the definition of motor vehicle in section 2(c) of the Taxation Act is not a definition by incorporation but only a definition by reference and as such the meaning of motor vehicle for the purpose of section 2(c) of the Taxation Act would be the same as defined from time to time under sections 8(2) to 18 of the .
HELD : Dumpers and rockers though registrable under the are not taxable under the Taxation Act as long as they are working solely within the premises of the respective owners.
So far as the tractairs are concerned they are neither registrable under the nor taxable under the Taxation Act.
[160 F] A motor vehicle which is not "adapted for use" upon roads to which public have no right of access is not a motor vehicle within the meaning of section 2(18) of the Act.
The words "is adapted for use" have the same connotation as "is suitable" or "is fit" for use on the roads.
The meaning of the word adopted" in section 2(18) of the Act is itself indicated in entry 57 of List If of the 7th Schedule to the Constitution which confers powers on the State to tax vehicles whether propelled mechanically or not and uses the words "suitable" in relation to its use on the roads.
The words "adapted for use" must.
therefore, be constructed as "suitable for use".
The words "adapted for use" 139 cannot be larger in their import by including vehicles which are not "suitable for use" on roads.
A perusal of the provisions of the Act would justify the conclusion that it is not necessary for other vehicles registered under the Act to, be also liable for payment of tax under the Taxation Act.
[153 G A; 151 F G] Daley and others vs Hargreaves , MacDonald vs Carmichael , Maddox vs Storer and Burns vs Currell , referred to.
(2) The power of taxation under Entry 57 List II cannot exceed the compensatory nature which must have some nexus with the vehicles using the public roads.
If the vehicles do not use roads notwithstanding that they are registered under the Act they cannot be taxed.
If this be the Purpose and object of the Taxation Act, when the motor vehicle is defined under section 2(c) of the Taxation Act as having the same meaning as in the then the intention of the legislature could not have been anything but to incorporate only the definition in the as it existed in 1943, as if that definition was bodily written into section 2(c) of the Taxation Act.
If the subsequent Orissa Motor Vehicle Taxation (Amendment) Act 1943 incorpo rating the definition of "motor vehicle" referred to the definition of "motor vehicle" under the Act as then existing the effect of this regulative method would amount to an incorporation by reference to the provisions of section 2(18) of the Act in section 2(c) of the Taxation Act.
Any subsequent amendment in the Act or a total repeal of the Act under a fresh legislation on that topic would 'not affect the definition of "motor vehicle" in section 2(c) of the Taxation Act.
[155 B; D E] The use of the word 'has ' in the expression "has the same meaning as in the Motor Vehicle Act, 1939" in section 2(c) of the Act would justify the assumption that the legislature had intended to incorporate the definition under the Act as it then existed and not as it may exist from time to time, [155 F] In re.
Woa 's Estate (1886)31 Ch.
D.607, Clarke vs Bradlaugh (1888)8 Q.B.D. 63, Secretary of State for India in Council vs Hindusthan Co operative Insurances Society Ltd. L.R. 58 I.A. 259, State of Bihar vs section K. Ray [1966] Supp.
S.C.R. 259 and Ram Sarup vs Munshi and Others ; , referred to.
The definition of motor vehicle as existing prior to the 1956 amendment of the would alone be applicable as being incorporated in the Taxation Act.
The intention of Parliament for modifying the has no relevance in determining the intention of the Orissa Legislature in enacting the Taxation Act.
The power of taxation is not in the concurrent List but in List It and construed as a taxation measure the ambit of it cannot be extended by mere implication.
It is possible for both the Acts to Co exist even after the definition of "motor vehicle" in the Act has been amended.
[159 B; 158 H] In the instant case there is evidence to show that the dumpers, rockers and tractairs are exclusively used on the premises of the owners.
[159 E] The machines which are the subject matter of these appeals must be working in their respective mining areas.
The mere fact that them is no fence or barbed wire around the leasehold premises is not conclusive.
There is evidence to show that the public are not allowed to go inside without prior permission, there are gates and a check on ingress and egress is kept by guards who also ensure that no unauthorised persons have access to the mining area.
[160 DE]
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<s>[INST] Summarize the judgementAppeals Nos.
34 to 36 of 1962.
Appeals from the judgment and order dated March 25, 1958, of the Madras High Court in Case Referred No. 12 of 1954.
K. N. Rajagopal Sastri and R. N. Sachthey, for the appellant.
R. Gopalakrishnan, for the respondent.
March 26.
The judgment of the Court was delivered by HIDAYATULLAH J.
The High Court of Madras in a Reference under s.66 (1) of the Indian Income Tax Act, answered in the negative the following question: "Whether there was material for the Appellate Tribunal to hold that the income arising to Mrs. C.M. Kothari and Mrs. D. C. Kothari from the property arose indirectly out of the 533 assests transferred indirectly by their husbands so as to attract the provisions of s.16 (3)(a)(iii).
" In our opinion, these appeals by the Commissioner of Income tax.
, Madras, must be allowed.
Messrs Kothari and Sons is a firm of stock brokers.
In 1947, the firm consisted of C.M. Kothari and his two sons, D. C. Kothari and H. C. Kothari Their respective shares were 6 : 5 : 5.
On October 7, 1947, the firm entered into an agreement for the purchase of a house in Sterling Road, Madras, for Rs.90,000, and the same day paid an advance of s.5,000.
This sum was debited in the books of the firm to the accountsof the three partners as follows: C. M. Kothari Rs.1,800 D. C. Kothari Rs.1,600 H. C. Kothari Rs.1,600 Total.
Rs.5,000 The transaction was completed on October 24, 1947.
The sale deed, however, was taken in the names of Mrs. C.M. Kothari Mrs. D.C. Kothari and H.C. Kothari.
The balance of the consideration was paid to the vendors by the firm.
Each of the two ladies paid to the firm a cheque of Rs.28,333 5 4.
Mrs. C.M. Kothari further paid a cheque of Rs. 1,800, and Mrs. D.C. Kothari paid another cheque of Rs. 1600 Thus the two ladies paid one third share of Rs.85,000 and the amounts which were respectively paid by their husbands as part of the earnest money.
H.C. Kothari was debited with a further sum of Rs.28,333.5 4.
In this way, Mrs. C. M. Kothari pad Rs.200 more than the other two, because her husband had previously paid Rs.200 more than his sons.
The share of the three vendees was however, Shown to be one third each.
534 The ladies issued the cheques on their accounts into which were paid by the firm, certain amounts by cheques.
Into Mrs. C.M. Kothari 's account was paid an amount of Rs.27,000 which was debited on October 24, 1947 to D.C. Kothari.
It was stated to be a birthday gift by him to his mother.
On November 13, 1947, another amount of Rs. 3,000 was paid into Mrs. C. M. Kothari 's account which was debited to the account of D. C. Kothari as a gift by him to his mother for Dewali.
Similarly, on November 13, 1947 Mrs. D. C. Kothari 's account with the bank was credited with a sum of Rs.30,000 by a cheque issued by the firm.
This was debited to the account of C, M. Kothari and was shown as a gift by him to his daughter in law.
In this way both the ladies received from the firm Rs. 30,000 which was the exact one third share of the consideration of Rs.90,000, but the amount was not paid by their respective husbands, but by the son in one case, and the father in law,, in the other.
In the assessment years 1948 49, 1950 51 and 1951 1952, the Income Tax Officer assessed the incomefrom the one third share of the house received by Mrs. C.M.Kothari as the income of her husband.
Similarlyin the four assessment years 1948 49 to 1951 52, the income of Mrs. D. C. Kothari from this house was assessed as the income of her husband.
This was on the ground that because of the interchange of the money in the family, either the purchases were made by the donors benami in the names of the donees, or alternatively, from assets transferred indirectly by the husband to the wife in each case.
The Income Tax Officer pointed out that the birthday of Mrs. C. M. Kothari had taken place earlier in the year and there was no occasion to give a birthday present to her several months later and on a date coinciding with the purchase of this property.
The Income Tax Officer also found that in the past, the father in law bad never given 535 such a big present to his daughter in law on Dewali and this time there was no special circumstance to justify it.
The appeals of the assessee to the appellate Assistant Commissioner failed as also those filed before the Tribunal.
The Tribunal, however, did not hold that the transaction was benami, but confirmed the other finding that the two ladies bad acquired their share in the house out of assets of the husbands indirectly transferred to them.
The Tribunal, how ever, stated a case for the opinion of the High Court, and the High Court answered the question in the negative.
As the question whether the two transactions were benami does not fall to be considered, the only question that survives is whether this case is covered Sy s.16 (3) (a) (iii).
This section reads as follows: "16(3).
In computing the total income of any individual for the purpose of assessment, there shall be included (a)So much of the income of a wife. of such individual as arises directly or indirectly (iii)From assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart;" The section takes into account not only transference of assets made directly but also made indirectly.
It is impossible to state here what sorts are covered by the word indirectly ', because such transfers may, be made in different ways.
It is argued that the first requisite of the section is that the assets must be those of the husband and 536 that is not the case here.
It is true that the section says that the assets must be those of the husband, but it does not mean that the same assets should reach the wife.
It may be that the assets in the course of being transferred, may be changed deliberately into assets of a like value of another person, as has happened in the present case.
A chain of transfers, if not comprehended by the word "Indirectly ' would easily defeat the object of the law which is to tax the income of the wife in the hands of the husband, if the income of the wife arises to her from assets transferred by the husband.
The present case is an admirable instance of how indirect transfers can be made by substituting the assets of another person who has benefited to the same or nearly the same extent from assests transferred to him by the husband.
It is next contended that even if chain transactions be included, then, unless there is consideration for the transfer by the husband, each transfer must be regarded as independent, and in the present case, the Department has not proved that the transfers by the son to the mother and by the father in law to his daughter in law were made as consideration for each other.
We do not agree.
It is not necessary that there should be consideration in the technical sense.
If the two transfers are inter connected and are parts of the same transaction in such a way that it can be said that the circuitous method has been adopted as a device to evade implications of this section, the case will fall within the section.
In this case, the device is palpable and the two transfers are so intimately connected that they cannot but be regarded as parts of single transaction.
It has not been successfully explained why the father in law made such a big, gift to his daughter in law on the occasion of Diwali and why the son made a belated gift, equally big, to his mother on the occasion of her birthday which took place several months before.
These two gifts match each other as regards the amount, The 537 High Court overlooked the clear implication of these fact as also the Implication of the fact that though the three purchasers were to get one third share each, Mrs. C. M. Kothari paid Rs. 200 more than the other two and that each of the ladies re paid the share of earnest money borne by their respective husbands.
An intimate connection between the two transactions, which were primafacie separate, is thus clearly established and they attract the words of the section, namely, "transferred directly or indirectly to the wife".
In our opinion, the High Court was in error in ignoring these pertinent matters.
The High Court also overlooked the fact that the purchase of the house at first was intended to be in the names of three partners of the firm.
No evidence was tendered why there was a sudden change.
It is difficult to see why the ladies were named as the vendees if they did not have sufficient funds of their own.
They could only buy the property if some one gave them the money.
It is reasonable to infer from the facts that before the respective husbands paid the amounts, they looked up the law and found that the income of the property would still be regarded as their own income if they transferred any assets to their wives.
They hit upon the expedient that the son should transfer the assets to his mother, and the father in law, to the daughterin law, obviously failing to appreciate that the word "indirectly ' is meant to cover such tricks.
The appeals must, therefore, succeed.
The answer of the High Court is vacated, and the question, answered in the affirmative.
The respondent shall bear the costs of these appeals as also the costs in the High Court.
One hearing fee.
[/INST]Under the Madras Sales Tax Act, 1939, as it stood before it was amended by the Madras Act XXV of 1947,the mere fact that the contract of sale was entered into within the Province of 88 678 Madras did not make a transaction which was completed in another province where the property in the goods passed, a sale within the Province of Madras and no tax could be legally levied upon such a transaction under the provisions of the Act.
Though a Provincial Legislature could not pass a taxation statute which would be binding on any other part of India it was quite competent for a province to enact a legislation imposing taxes on transactions concluded outside the province provided there was a sufficient and real territorial nexus between such transactions and the taxing province.
The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intention and design of the Legislature and indicate the scope and purpose of the legislation itself.
It is a settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word phrase or sentence is to be considered in the light of the general purpose and object of the statute.
Judgment of the Madras High court reversed.
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<s>[INST] Summarize the judgementAppeal No. 1360 of 1975.
(From the Judgment and Order dated 12 3 1975 of the Punjab & Haryana High Court in Regular First Appeal No. 315/64).
V.M. Tarkunde, E.C. Agrawala and Miss N. Tarkunde for the, appellant.
Bishan Narain, and Mrs. Urmila Sirur for respondent No. 1.
Hardev Singh and R.S. Sodhi, for Respondent No. 2.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Sardar Gobinder Singh Sibia who was possessed of a large estate died on December 15, 1954 at the age of about 70. 927 He had taken two wives, Gulab Kaur and Dalip Kaur.
The story of his life follows the familiar pattern the pretext of a disagreement with the unwanted wife, special favours for the favourite and jealous rivalries between the children born of the two.
The following pedigree will facilitate a better under standing of the issues involved in me case : Tara Singh Sibia : Ratan Singh : : Gulab Kaur Gobinder Singh Dalip Kaur (Plaintiff) (Died 15 12 1954) pre deceased her husband) (Died 1959) : : : : : Jaswant Kaur . . . . (Appellant) Guraprakash Kaur Gurbachan Sin gh pre deceased his fat her) Joginder Kaur (Died 1971 ) : : Arrit Kaur = Surjit Inder Singh Palvinder Kaur (Respondent1) (Defendant) (Respondent 5) (Died 1968) : : : Gobinder Singh Surinder Singh Gopal Inder Singh (Respondent 2) (Respondent 3) (Respondent 4) After the birth of the appellant Jaswant Kaur, Gulab Kaur started living or as the story goes, was compelled to live with her parents.
Dalip Kaur had given birth to a daughter Guraprakash Kaur and a son Gurbachana Singh.
Gurbachan died during the life time of his father Gobinder Singh, leaving behind his widow Joginder Kaur who died in 1971.
Gurbachan Singh and Joginder Kaur gave birth to two children, a son Surjit Inder Singh and a daughter Palvinder Kaur.
Surjit Inder Singh died in 1968 leaving behind a widow Amrit Kaur and three sons.
On May 22, 1956 which was about a year and a half after the death of Sardar Gobinder Singh, his widow Gulab Kaur filed a suit in forma pauperis claiming maintenance @ Rs. 1000/ per month or in the alternative a one half share in the properties left by her husband.
Her co wife 's grandson Surjit Inder Singh was the defendant to the suit.
He filed his written statement on January 5, 1957 contending that the plaintiff had deserted her husband and that she was neither entitled to maintenance nor to any share in his estate.
On these pleadings the trial court struck issues in the suit on February 1, 1957.
At the end of her evidence on August 17, 1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one half share in her husband 's estate.
The hearing of the suit was adjourned by the learned trial Judge to August 24, for recording defendant 's evi dence.
928 In the meanwhile, on.
August 20, the defendant filed an application asking for permission to produce a will stated to have been made by Sardar Gobinder Singh, on November 26, 1945.
The learned District Judge, Sangrur, who was then seized of the suit rejected that application and refused to allow the defendant to amend his written statement.
That order was, however, set aside in revision by the Punjab.
High Court which directed the trial court to allow the defendant to amend Iris written statement and to produce his father 's alleged will.
On March 8, 1958 the defendant amended his written statement contending that by the will, his father had left almost the entire property to him and that the plaintiff Gulab Kaur was not entitled to any share in the property under the will.
In June, 1958 the plaintiff filed a formal application seeking leave to amend her plaint giving up her claim for maintenance and asking for a one half share in the properties of her deceased husband.
Fresh issues were thereafter framed on the basis of the amended pleadings.
On March 10, 1959 the plaintiff died and her daughter, Jaswant Kaur, who is the appellant before us, was brought on the record as her legal representative.
The suit was tried eventually by the learned Senior Sub Judge, Sangrur, who by his judgment dated June 29, 1964 decreed it.
The learned Judge held that the defendant who set up the will had failed to prove that it was the last will and testament of his grand father Gobinder Singh and alternatively, that even on the assumption that the will was proved, it must be deemed to have been revoked on account of certain dispositions made by the testator after the making of the will.
This alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant, who disputes the will, did not urge that consideration before us.
The revocation of an unpriviledged will is an act only a little less solemn than the making of the will itself and has to comply with statutory require ments contained in section 70 of the Succession Act.
Holding that the defendant had failed to discharge his onus of proving the will, the trial court granted to the plaintiff a decree for a one half share in the properties of her husband.
In doing this, the Court relied on "overwhelm ing documentary evidence" showing that according to the custom by .which the parties were governed, a sonless widow was entitled to a one half share in the estate of her hus band, as an equal sharer with the male progeny born of a co wife.
That the parties were governed in this matter by customary law was "openly conceded" in the trial court, the point of dispute being restricted on this point to 'the question as to what in fact was the custom.
It was common ground before us that if the will goes, the plaintiff will be entitled to a half share in the estate of her husband Gobinder Singh.
Aggrieved by the judgment of the trial court, the de fendant Surjit Inder Singh filed First Appeal No. 315 of 1964 in the High Court of Punjab and Haryana.
During the pendency of the appeal, the defendant died on October 22, 1968 and his widow Amrit Kaur, her three sons, and his sister Palvinder Kaur were brought on the record as his legal representatives.
They are respondents 1 to 5 to this appeal.
By its judgment dated March 12, 1975 the High Court set aside the judgment 929 the trial court, allowed the appeal and dismissed the plaintiff 's suit.
The High Court has held, or appears to have held, that the will was duly established.
Since the will excludes the plaintiff as a sharer in the testator 's estate, the suit had to fail, custom or no custom.
This appeal by special leave is directed against the judgment of the High Court.
The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will.
It is he who set up the will in answer to the plaintiff 's claim in the suit for a one half share in her husband 's estate.
Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it.
In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him.
Accordingly, the defendant ought to have led satis factory evidence to prove the due execution of the will by his grand father Sardar Gobinder Singh.
In cases where the execution of a will is shouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant.
What, generally, is an adver sary proceeding becomes in such cases a matter of the court 's conscience and then the true question which arises for consideration is whether the evidence led by the pro pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator.
It is impossible to reach such satisfication unless the party which sets up the will .offers a 'cogent and convinc ing explanation of the suspicious circumstances surrounding the making of the will.
There is a long line of decisions bearing on the nature and standard of evidence required to prove a will.
Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar vs
B.N. Thirnmajamma & Others.
(1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions : 1.
Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters.
As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
(1) [1959] Supp.
I S.C.R. 426.
930 This aspect introduces an element of solemnity in the deci sion of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
Cases in which the execution of the will is surround ed by suspicious circumstances stand on a different footing.
A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he re ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will.
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disin herited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved.
That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
If a caveator alleges fraud, undue influence, coer cion etc.
in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execu tion ' of the will may raise a doubt as to whether the testa tor was acting of his own free will.
And then it is a part of the initial onus of the propounder to remove all reasona ble doubts in the matter.
We will now set out briefly the provisions of the will which is dated November 26,1945.
The will consists of 9 paragraphs, by the first of which the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala, and Sardar Bahadur Ranjit Singh a contractor of Delhi, as execu tors.
By paragraph 2 the testator bequeathed the whole of his property, movable and immovable, to his grandson Surjit Inder Singh who is the defendant in the present suit.
By paragraph 3 the testator gave to his wife Dalip Kaur a life interest in a house at Simla, called Kenilworth.
The testator provided by paragraph 4 that if the house was later acquired by the Government or was sold by himself Dalip Kaur would be entitled to receive from his estate a sum equal to the compensation fixed in the acquisition proceedings or equal 931 to the sale price.
The amount was to be deposited in ap proved securities, Dalip Kaur being entitled only to the interest thereon.
On her demise, the house or the amount in deposit was to vest absolutely in the defendant.
Para graph 5gave to Dalip Kaur the right of residence in a part of the house.
at Sangrur, paragraph 6 gave to her the right to use during her life time the jewellery and orna ments and paragraph 7 states expressly that she will have no right to alienate any of the properties in which she was given a life interest.
Paragraph 8 provides that Dalip Kaur had the right to live jointly with the defendant but in case there were differences between them, she would be entitled to receive from him an annual sum.
of Rs. 5,000 for her maintenance.
This amount was to constitute a charge on a land at Karmsar, District Lyallpur.
Paragraph 9 of the will recites that the plaintiff Gulab Kaur had given birth to a daughter Jaswant Kaur in 1898, that Jaswant Kaur was married happily in 1913 to Sardar Gurbax Singh Mansahia, that after Jaswant Kaur 's marriage Gulab Kaur started misbehaving and left for her parents ' house, taking jewellery worth about Rs. 50,000 with her.
It is further stated .in paragraph 9 that Gulab Kaur was "leading her life in a way which would not bear mention here" and that therefore she did not de serve to get any allowance at all from the testator 's property.
The defendant was however directed to pay to her a monthly sum of Rs. 50 for her maintenance provided that she lived in a part of the house at Sangrur and her conduct remained worthy of the Sibia family.
Paragraph 9 expressly mentions that Gulab Kaur would have no right to any share in the testator 's property.
The testator, Sardar Gobinder Singh, was a man of property and occupied a high position in society.
By a modest estimate, the property which he disposed of by his will was of the value of rupees ten to fifteen lakhs.
A registered power of attorney (EX. D/2) which he had executed seven months before the will on April 6.
1945 shows that he owned extensive movable and immovable properties, had a bank account in several banks and that various legal pro ceedings to which he was a party were pending in "all the States of British India".
Gobinder Singh describes himself in the power of attorney as a "big biswedar" and says that he had "a large business to attend to".
The evi dence of Kartar Singh, Gurcharan Singh and Teja Singh (P.Ws. 4, 5 and 6) shows that Sardar Gobinder Singh owned over 15000 bighas of land, several houses and several cars in cluding a Rolls Royce.
sardar Ratan Singh, the father of Gobinder Singh, was the President of the Council of Regency .in the erstwhile State of Jind, while Gobinder Singh himself held "distinguished and responsible posts" in Jind such as the Nazim, the Private Secretary to the Mahara ja and a Minister in his government.
It is the will of a man of such affluence and social status which has to be judged in this case.
It is not as if the burden of proof varies with the riches and social pres tige of the testator but habits of life arc prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy have easy access to competent legal advice.
Normally therefore, a genuine will of a propertied man.
well positioned in society too.
does not suffer from 932 the loopholes and infirmities which may understandably beset an humbler testamentary instrument.
Circumstances are too numerous to mention which throw a cloud of suspicion on the making of the will by Gobinder Singh.
The will is alleged to have been made on November 26, 1945 but it did not see the light of day till August 20, 1957.
Being an ambulatory document, it may be granted that there may be no occasion for anyone to know of its existence until the death of the testator on December 15, 1954.
But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 21/2 years after the testator 's death.
The testa tor had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954, no one both ered to go through his papers which would reflect the state and extent of his property.
The explanation of the defend ant that he hit upon the will by chance while going through some papers of his grand father is therefore patently lame and unacceptable.
There is an ominous significance in the date on which the defendant applied for production of the will in the present suit.
By her suit which was filed on May 22, 1956 the plaintiff Gulab Kaur had originally asked for mainte nance ' and in the alternative for a one half share in the estate of her husband.
Under the Punjab customary law by which the parties were governed, the plaintiff, being a sonless widow.
was entitled to an equal share in the proper ty of her husband.
along with the male progeny born from a co wife.
But the customary .law gave to the sonless widow only a limited and not an absolute interest in the estate of her husband.
The , 30 of 1956.came into force on June 17, 1956 which explains why the plaintiff at the end of her evidence on August 17, 1957 expressly gave up her claim for maintenance and restricted her demand in the suit to a one half share in her husband 's estate.
So long as the plaintiff was entitled only to maintenance or to a limited interest in her husband 's property, the defend ant was content to meet that claim by raising pleas like desertion and misconduct The passing of the Hindu Succes sion Act changed the entire complexion of the suit, raising at least a reasonable apprehension ' that on account of the provisions of that Act the plaintiff would become an abso lute owner of a part of her husband 's estate.
By section 8 of the Act, the widow becomes an heir to the husband 's estate on intestate succession, along with other heirs mentioned in Class I of the Schedule.
And by section 14(1), any property possessed by a female Hindu whether acquired before or after the Act becomes her absolute property subject to the provisions of sub section (2) which would have no application in the instant case.
By reason of section 14, the provisions of the Act have generally an overriding effect on custom and usage.
On August 17, 1957 the plaintiff 's evidence was over and the suit was ad journed to August 24 for defendant 's evidence.
In the meanwhile, on August 20, the defendant filed an application stating 933 that he had accidentally discovered a will made by the plaintiffs husband Gobinder Singh and asking for permission to produce that will.
The defendant has not stated why he suddenly thought of examining his grand father 's papers in between the conclusion of the plaintiff 's evidence on the 17th and the 20th of August.
His case is one of a purely providential discovery and neither in the application for production of the will nor in his evidence did he give the haziest details of the discovery.
We are surprised that the High Court should have so readily accepted the story that the defendant stumbled across the will.
The will has been typed out on both sides of a single foolscap paper and is obviously drafted by a lawyer.
No evidence at all has been led as to who drafted the will and who typed it out.
The will uses some trite legal jargon but it does not show where it was executed and contains no description whatsoever of any of the extensive properties bequeathed to the defendant.
The will has been attested by two persons called Dinshaw H.M. Framjee and Pali Ram.
It is intriguing that a person in the position of Sardar Gobinder Singh should choose these two strangers as attesting witnesses to a very solemn and important document.
Dinshaw Framjee was a trader in Simla and Pali Ram was his servant.
Framjee has stated in his evidence that he did not remember where Gobinder Singh used to stay in Simla, that he did not know for how long he was staying in Simla before the attestation of the will, that he was unable to state whether he had met Gobinder Singh after the attestation of the will and that he was unable to give the approximate time of the day when the will was attested forenoon, afternoon or evening.
Framjee was sure about one thing only, that he had not attested the will at night.
He attempted to say that he was on friendly terms with the testator 's family but he was unable to give even the approximate ages of the testator 's son and daughter.
Under the stress of cross examination, he had to admit eventually that he knew nothing about the testator,s family or family affairs.
Pali Ram, the other attesting witness, did ' not remember the date or the year of the execution of the will but said that it was probably executed in 1945.
He did not know the testator and was a total stranger to him.
Whereas Framjee stated that the will was attested in 'his business premises which were on the ground floor, Pali Ram says that Framjee sent for him from the business premises to his residence, which was on the upper floor.
The utter improbability of the testator accosting these two strangers for getting his will attested and the funda mental contradictions in their evidence render it impossible to hold that they attested the will at the instance of the testator as alleged.
A man of importance that the testator was, he could not ever have left the validity of his will to depend on the unpredictable attitude of unknown elements like Framjee and Pali Ram.
Pali Ram claims to have read the will before attesting it.
It iS not known why.
if he knew that the property 934 was bequeathed to the defendent, he did not, at least after the testator 's death, inform the defendant of the existence of the will.
By the will the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala and one Sardar Bahadur Ranjit Singh as executors.
Both of these persons were fortunately available for giving evidence but neither of them was examined in the case.
Normally, executors are not appointed without their consent or at least without a prior consultation with them.
Respondent 1, the defendant 's widow, is the daughter of the executor Ranjit Singh.
The marriage was performed during the testator 's life time and we find it hard to believe that he would not disclose even to Ranjit Singh that he had made a will appointing him as one of the executors and that Ranjit Singh 's son in law, that is to say the testator 's grandson, was the sole legatee under that will.
The will is unnatural and unfair in more than one re spect.
At the time that the will is alleged to have been made, the testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a daughter in law Joginder Kaur, being the widow of the testator 's predeceased son Gurbachan Singh who was also born of Dalip Kaur.
Gurbachan Singh and Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter Palvinder Kaur.
The will contains not even a fleeting reference either to the testator 's daughter or the widowed daughter in law or to the grand daughter Palvinder Kaur.
It is urged that all of these persons were happily placed in life and it was therefore needless for the testator to provide for them.
If that be so, it was usually unnecessary to refer to the appellant Jaswant Kaur who also, it is common ground, has been married happily.
The plaintiff Gulab Kaur has been wholly excluded as an heir of the testator for the supposed reason; that She had brought disgrace to the Sibia family and that her behaviour was such as would not even 'bear mention in the will.
Not only that no evidence was led to show any misconduct on the part of Gulab Kaur but the evidence of Jaswant Kaur (P.W.2) shows that for about 7 or 8 years prior to 1956 Gulab Kaur had lost her eyesight.
One of the issues in the suit namely, issue No. 2, arising from the original pleadings was whether the plaintiff was disentitled to maintenance for the reason that she had deserted her husband.
The judgment of the trial court shows that the defendant led no evidence in support of that issue and that during the course of arguments, the defendant 's counsel did not press the partic ular issue.
The plaintiff on the other hand led evidence in rebuttal and accepting that evidence the trial court rejected the contention that she had deserted her husband.
it seems to us difficult to believe that a person in the position of section Gobinder Singh who was possessed of a large estate, would disinherit so many of his near rela tives including his wife Gulab Kaur and shower his bounty on the grandson, to the exclusion of everyone else.
935 Quite a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the will but the circumstances enumerated above are, tin our opinion, sufficient to discard the will.
The defendant in his evidence has offered no explanation of any of these.
cir cumstances.
He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious circum stance surrounding the execution of the will and of estab lishing that the document which he propounded was the last will and testament of his grand father Gobiner Singh.
Learned counsel for ' the respondents contends that the defendant did not offer any explanation of these suspi cious circumstances because the will was not challenged in the trial court on the ground that its execution was shroud ed in suspicion.
It is impossible to accept this conten tion because even the learned District Judge who had reject ed the defendant 's application for production of the will and the consequent amendment of the written statement had observed in his order dated September 13, 1957 that it was inconceivable that the defendant did not know about the will and that the possibility of :its being forged cannot be excluded.
This itself was sufficient notice to the defendant as to the nature of the burden which he had to discharge.
Counsel for the defendant also contended that the testator must have kept the will a closely guarded secret because if the will was published, Gulab Kaur and her daughter would have created some trouble.
This argument, in the context of the various facts adverted to above, has to be rejected.
The testator might have wished to keep the will a secret from Gulab Kaur and her daughter but it is impossible to appreciate that he would frustrate the very object of making the will by suppressing it from the defend ant and from the executors, one of whom was highly placed and the other of whom is the defendant 's father in law.
Frankly, though with respect, it surprises us that the High Court should have accepted the will as genuine.
It observes: "It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will.
" We could have understood if the High Court were to say that the defendant had given a valid explanation of the suspicious circumstances surrounding the execution of the will.
But to say that there is nothing in the case to excite the court 's suspicion and to accept the will as genuine on that premise is wholly ununderstandable.
The High Court does not refer to a single circumstance out of the many that we have discussed and the operative part of the judgment just recites a few facts mechanically as if there could possibly be no answer to the validity of the will.
The High Court has not referred in its judgment even in passing to the rule as to the burden of proof which applies to testamentary proceedings.
If only it had taken the trouble of looking at the decision of this Court in Iyengar 's case, which is copiously extracted in the judg ment of the Trial Court, it would have realized what its true duty was in the case.
936 For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the trial court.
The appellant will be entitled to recover from the respondents the costs of this Court and of the High Court.
P.H.P. Appeal allowed.
[/INST]The respondents, teachers of the Junior vernacular cadre, Punjab, were promoted to the senior vernacular cadre temporarily.
After the expiry of their probationary period, they were not confirmed, but continued to work in the senior cadre and their names were dropped from the junior vernacu lar cadre.
Mean while, other teachers, junior to the re spondents in the junior cadre were offered better opportuni ties of being taken in a "selection grade".
The respondents filed a writ petition in the High Court contending that they were entitled to the opportunity of moving into the selection grade, as they were neither probationers nor confirmed members but were only officiating in the senior cadre while retaining their substantive places and liens in the junior cadre.
The High Court allowed the writ.
Dismissing the appeal the Court.
HELD: The state was unable to substantiate the submis sion that the petitioners respondents became probationers in the senior vernacular cadre.
According to the rules, their lien in the junior vernacular cadre was retained by them, and, it could not be suspended by the mere fact that they were performing the duties of teachers working in the senior vernacular cadre.
[836 D E]
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<s>[INST] Summarize the judgementAppeal No. 899 of 1966.
364 Appeal by special leave from the judgment and decree dated May 14, 1965 of the Allahabad High Court in Second Appeal No. 4136 of 1964.
Yogeshwar Prasad and Harder Singh, for the appellants.
S.N. Anand, for the respondents.
The Judgment of the Court was delivered by Shah, J.
Gokal Chand first respondent in this appeal was a tenant of shop No. 34/2, Dispensary Road, Dehra Dun, which belongs to Munni Devi the first appellant in this appeal.
Munni Devi applied to the Rent Control & Eviction Officer.
Dehra Dun, for an order in ejectment on the plea that Gokal Chand had committed default in paying rent.
The R.C. & E. Officer passed an order observing that the tenant did not lead any evidence to show that he had not vacated the shop and it was clear on the evidence that the tenant was not in occupation of the shop and had let it out to one Alladia.
He accordingly declared that the shop was vacant.
The R.C. & E. Officer allotted the shop to Kishorilal.
Kishorilal then applied to the R,C. & E. Officer that the shop allotted to him was in the illegal occupation of Rawel Chand s/o Gokal Chand.
On May 22, 1957, the R.C. & E. Officer declared that Gokal Chand the previous tenant had vacated the shop.
and that Rawel Chand was in illegal occupation of the shop.
He accordingly issued a notice under section 7A (3) of the Act.
Gokal Chand then filed a civil suit in the Court of the Munsif.
Dehra Dun, for a declaration that he was an allottee and a tenant of the shop and that he was in possession in that capacity.
To that suit were impleaded Munni Devi and Kishorilal as party defendants.
The Trial Court held that Gokal Chand had at no time vacated the shop, no.r was his tenancy terminated.
He accordingly made an order declaring that Gokal Chand was an allottee and a tenant of the shop.
and was entitled to remain in occupation of the same.
An appeal against that order to the District Court was dismissed.
A second appeal to the High Court was also unsuccessful.
In this appeal with special leave, counsel for Munni Devi and Kishorilal urges that the order of the civil court was without jurisdiction.
Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 194 7, imposes certain restrictions on eviction of tenants.
By section 7(1)(a) it is provided: "Every landlord shall, within 7 days after an accommodation becomes vacant by his ceasing to occupy it or 365 by the tenant vacting it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever, give notice of the vacancy in Writing to the District Magistrate.
" Sub sections (2) & (3) of section 7 provide: "(2) The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant.
(3) No tenant shall sub let any portion of the; accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously X X obtained." Section 7A which was added by Act 24 of 1952 provides, in so far as it is material: "(1) Where in pursuance of an order of the District Magistrate under sub section (2) of section 7, the vacancy of any accommodation is require.
be reported and is not reported, or where an order requiring any accommodation to be let or not to be let has been duly passed under sub section (2) of Section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause, within a time to.
be fixed by him, why he should not be evicted therefrom: Provided (2) If such person fails to appear in reply to the notice served under sub section (1) or, if he appears but fails to satisfy the; District Magistrate that the order under sub section (2) of Section 7 was not duly passed and that he is entitled to remain in occupation of the accommodation the District Magistrate may, without prejudice to any other action which may be taken against him under this Act or any other law for the time being in force, direct him to vacate the premises within a period to be specified.
" Section 16 of the Act provides: "No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court." 366 Counsel for the appellants urged that the suit filed by Gokal Chand was not maintainable, for the Act sets up a complete machinery for determining after enquiry whether any premises governed by the Act have. fallen vacant, and for making an order calling upon the; person or persons in wrongful occupation to vacate and deliver possession of the premises, and that by express enactment in section 16, the order of the District Magistrate is declared final.
We are unable to agree with that contention.
Lord Esher, M.R., in Reg.
vs Commissioner of Income tax(1), observed: "When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise.
There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist.
The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as.
the jurisdiction, and on finding that it does exist, to proceed further to do something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.
In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts.
including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
" This rule was approved by this Court in Ebrahim A boobakar and Ant.
vs Custodian General of Evacuee Property (2).
Munni Devi applied for an order in ejectment against Gokal Chand on the.
plea that he had committed default in paying rent.
The R.C. & E. Officer held that Gokal Chand had vacated the premise and had inducted a sub tenant.
The LegiSlature has in (1) 21 C.B.D. 313.
(2) ; 367 vested the District Magistrate with power on the existence of a vacancy to allot the premises to another person, but the Legislature has not made the determination of the preliminary state of facts by the District Magistrate conclusive.
The jurisdiction to pass an order in ejectment only arises if there is a vacancy.
The right of a tenant in possession is a valuable right and there is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises.
Undoubtedly he has jurisdiction to make orders under sections 7 & 7A of the Act, if there be a vacancy.
But whether there is a vacancy is a jurisdictional fact which could not to be decided by him finally.
By reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does not possess.
It is only when the order is with jurisdiction that the order is not liable to be challenged in a Civil Court by virtue of section 16 of the Act.
In Chaube Jagdish Prasad vs Ganga Prasad Chaturvedi(1), the respondent had obtained on rent the "accommodation" in dispute from the appellant.
The appellant submitted an application under section 3A of the U.P. (Temporary) Control of Rent and Eviction Act, 947, to the House Allotment Officer (on whom the power of the District Magistrate was conferred) for increase in rent.
That Officer passed an order increasing the rent payable by the tenant on the ground that there was a new construction.
The appellant then instituted a suit under section 5 (4) of the Act for the enhancement of "reasonable annual rent".
The respondent contended, inter alia, that there was no new construction of "accommodation" after June 30, 1946, and that, therefore, the suit was not maintainable.
The Trial Court found that there was a new "accommodation" and the Court could determine its rent under section 5(4).
In revision, the High Court held that though the construction was new, the "accommodation" in the occupation of the respondent was not new.
and therefore section 3A of the Act was inapplicable.
In appeal, this Court held that a wrong decision made by the House Allotment Officer who exercised the power of the District Magistrate under section 3A of the Act or an order made by him in excess of his power under that section could be rectified by a suit under section 5(4) of the Act.
In the present case the civil court has come to the conclusion that Gokal Chand had never vacated the shop and no vacancy had occurred.
By wrongly deciding that Gokal Chand had vacated the shop, the District Magistrate had no power to pass orders directing forcible ejectment and allotting the shop to another person.
The appeal fails and is dismissed with costs.
Y.P. Appeal dismissed.
(1) (1959) Supp.
(1) S.C.R. 733.
[/INST]A Hindu executed a will directing his wife to sell, Sch.
C property and utilise the amount for celebrating the marriage of one Sitharathnam and for constructing a Ramamandiram in his name, and further devised that his wife shall enjoy Sch.
E property absolutely and after her life time whatever remained out it, it will pass to two named persons.
The wife predeceased the testator, and the marriage of Sitharathnam was celebrated in the testator 's life time and expenses in that behalf were defrayed by the testator.
The appellants who were the testator 's nearest heirs, claimed the properties contending that the disposition of the Sch.
C & E properties lapsed, because the wife who was the legatee of the properties died before the testator and that there was nothing in the will providing for the acceleration of Sch.
E property in case of the legatee 's dying in the testator 's life time.
HELD : (i) The wife had no beneficial interest in Sch.
C property.
She was merely appointed to sell the property and to, utilise the proceeds for the purposes specified in the will.
There was no "joint bequest" of Sch.
C properties.
In the absence of allocation of the amounts to be utilised for celebrating the marriage of Sitharathnam and for constructing a Ramamandiram, it must be presumed that the fund was to be utilised in equal moieties for the two purposes.
Failure of one of the purposes will result in a moiety of the amount devised falling into the residue.
Since no part of the fund was needed for the marriage of Sitharathnam the legacy failed pro tanto and fell into the residue.
Under the will the wife was made the owner of the residue, but by her death during the life time of testator the residuary bequest lapsed and vested as on intestacy in the nearest heirs of the testator.
The devise of a moiety of the fund to be applied for the construction of a Ramomandiram however stood good and the trust had to be carried out.
The wife died during the life time of the testator but on that account the charitable trust was not extinguished.
[31 E; 32 D] Jogeshwar Narain Deo vs Ram Chund Dutt and Others, L.R. 23 I.A. 37, 43, referred to.
(ii) The wife died during the life time of the testator : thereby the estate in Sch.
E properties granted to the named persons was accelerated.
The nearest heirs of the testators were therefore not entitled to any share in Sch.
E properties.
Section 105 of the , enacts that a legacy shall lapse and form part of the residue of the testator 's property if the legatee does not survive the testator except where it appears by the will that the testator intended that the legacy shall, on the legatee not surviving him, go to some other person.
It could not be said that the intention 29 of the testator that a legacy shall not lapse may be given effect to only if the testator expressly directs that if the legatee dies during his life time the legacy shall go to some other person, and that intention to exclude lapse cannot be inferred.
Section 105(1) does not say, nor does it imply, that the testator must have expressly envisaged the possibility of lapse in consequence of the legatee dying during his life time and must have made a provision for that contingency.
[33 F] Browne vs Hope, L.R. 14 Equity Cases 343; Lowman Devenish vs Pester, ; Dunstan, Dunstan vs Dunstan, , referred to.
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<s>[INST] Summarize the judgementAppeal No. 34 of 1965.
Appeal by special leave from the judgment and decree dated November 6, 1962 of the Allahabad High Court in Second Appeal No. 3745 of 1958.
B. C. Misra and section section Shukla, for the appellants.
section P. Sinha, E. C. Agarwala and P. C. Agarwala, for the respondents.
The Judgment of the Court was delivered by Shah, J.
A piece of agricultural land bearing Survey Nos. 723/2, 724, 725 and 726 of Naugawan, tahsil Fatehabad, District Agra, originally belonged, to two brothers Tota Ram and Lajja Ram.
Tota Ram and Lajja Ram were declared to be bhumidhars in respect of that land and a Sanad was issued in their favour under section 7 of the U.P. Act 10 of 1949.
On October 20, 1951, Tota Ram and Lajja Ram sold their interest in the land 619 to two brothers Sri Ram and Ram Prasad who will hereinafter be called 'the plaintiffs '.
Disputes arose thereafter about the possession of the land between one Pritam Singh and the plaintiffs, and proceedings under section 145 of the Code of Criminal Procedure were started before the Sub Divisional Magistrate at the instance of Pritam Singh.
The Sub Divisional Magistrate attached the land and called upon the parties to agitate the dispute as to their respective rights therein in a civil suit.
The plaintiffs then commenced an action in the Court of the Munsif, Fatehabad, against Pritam Singh and Tota Ram for a declaration of their rights as bhumidhars in possession of the land in suit and for an order "expunging" the name of Pritam Singh from the revenue records.
Pritam Singh resisted the suit contending, inter alia, that the land was abandoned by Tota Ram and Lajja Ram and that since it was under his cultivation continuously since Fasli year 1356 (the year commencing from July 1, 1948 and ending on June 30, 1949) he had acquired the rights of an adhivasi in the land and he was not liable to be evicted from the same.
The Munsif referred the following issue arising out of the pleadings to the Assistant Collector, Agra, for decision: "Whether the defendant No. 1 (Pritam Singh) has acquired adhivasi rights, if so, its effect?" The Assistant Collector held that the revenue records did not "how that Pritam Singh was in possession at any time in or before 'the end of 1359 Fasli and that the entries in the khasra relied upon by Pritam Singh had been fabricated to support his case.
Consistently with the finding of the Assistant Collector, the Munsif passed judgment in favour of the plaintiffs.
But in appeal to the District Court, Agra, that judgment was reversed.
The Appellate Judge held that the revenue entries were genuine entries posted by the Patwari in discharge of his duty and that Pritam Singh was in possession in the year 1356 Fosli and also in 1359 Fasli and he had acquired the rights of an adhivasi.
The plaintiffs then carried the dispute to the High Court of Allahabad.
The High Court reversed the decree passed by the First Appellate Court and restored the decree of the Munsif.
With special leave, the heirs and legal representatives of Pritam Singh have appealed to this Court.
It was not the case of Pritam Singh that he has acquired title to the land by transfer or by adverse possession.
Pritam Singh relied merely.
upon the entries in khasra for 1356 Fasli and his claim of possession of the land in Fasli 1359, and upon statutory consequences arising from the entries under section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951, and section 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952.
The U.P. Zamindari Abolition and Land Reforms Act 1 of 1951 was brought into force from July 1, 1952.
By section 20 certain rights were conferred upon persons whose names were recorded 620 in the revenue records in respect of agricultural land.
The material clause (b) of section 20 on which reliance is placed reads as follows: "20.
Every person who (a) (b) was recorded as occupant (i) of any land (other than grove land or lands to which section 16 applies) in the khasra or khatauni prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901, or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under clause (c) of sub section (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947, or The land in dispute is not grove land, nor it is land to which section 16 of the Act applies.
Pritam Singh claimed that his name was entered as an occupant in the khasra of 1356 Fasli prepared under the U.P. Land Revenue Act, 1901, and he was on that account entitled to the rights of an adhivasi in respect of the land.
It was held by this Court in Amba Prasad vs Abdul Noor Khan and Others(1) that section 20 of U.P. Act 1 of 1951 does not require proof of actual possession: it eliminates inquiries into disputed possession by accepting the record in the khasra or khatauni of 1356 Fasli or its correction before July 1, 1952.
In view of that decision it must be held that the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant.
But the entries on which reliance was placed by Pritam Singh do not support his case that he was recorded as an occupant in the khasra or khatauni of 1356 Fasli.
In the certified extract of the khasra for 1356 Fasli (Ext.
A/ 1) tendered in evidence by Pritam Singh in the column 'Name and caste of cultivator ' the entry is "Tota Ram and others" and in the column for 'remarks ' the entry is "Pritam Singh s/o Pyarelal of Sankuri".
Our attention has not been invited to any provision of the U.P. Tenancy Act or instructions issued by the Revenue authorities which tend to establish that the name of an occupant of land is liable to be entered in the column reserved for 'remarks '.
In order that a person may be regarded as an adhivasi of a piece of land, section 20(b) of Act 1 of 1951 requires that his name must be recorded in the khasra or khatauni for 1356 Fasli as an occupant.
The Assistant Collector has pointed out that according to paragraph 87 of the Land Records Manual it is necessary for a Patwari to make an (1) ; 621 enquiry about the status of the occupant, and if he thinks that a claimant is an occupant, he should enter the name in red ink in khsra as "Kabiz, sajhi etc.".
Admittedly Pritam Singh was not shown as Kabiz or sajhi nor was the entry posted in red ink.
There is also strong evidence on the record which shows that the name of Pritam Singh was surreptitiously entered in the khasra for 1356 Fasli.
In the khasra Barahsala i.e. consolidated khasra for 1347 to 1358 Fasli Tota Ram and Lajja Ram are shown its persons cultivating the land and there is no record of the name of any sub tenant on the land.
Before the Assistant Collector two certified extracts of the khasra for 1356 Fasli in respect of the land in dispute were produced.
In the certified extract Ext.
A/ 1 tendered by Pritam Singh his name was shown in the 'remarks ' column.
in the certified extract tendered by the plaintiffs there was no such entry.
The Assistant Collector did not call for the original record, nor did he attempt to probe into the circumstances in which the entry of Pritam Singh dame to be made.
He, however, observed that in Ext.
A/ 1 the name of Pritam Singh was entered in the 'remarks ' column against Survey No. 723/1 which had fallen in an earlier partition to the share of one Kunjilal and in respect of which Pritam Singh had never claimed any right.
The First Appellate Court did not refer to these important pieces of evidence.
His conclusion cannot be regarded as binding upon the High Court in Second Appeal.
It must therefore be held that relying upon the entry of his name in the 'remarks ' column in the khasra for 1356 Fasli Pritam Singh could not claim that he had established his rights as an adhivasi of the land under section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951.
The alternative case under section 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952 may now be considered.
Section 3 of Act 31 of 1952 provides, insofar as it is material: "(1) Every person who was in cultivatory possession of any land during the year 1359 fasli but is not a, person who as a consequence of vesting under Section 4 'of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) (hereinafter referred to as the said Act), has become a bhumidhar sirdar, adhivasi or asami under Sections 18 to 21 of the said Act shall be and is hereby declared to be, with effect from the appointed date (a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidars or sirdars, all of them were, on the appointed date person or persons referred to in item (i) to (vi) of sub section (2) of Section 10 of the said Act, an asami from year to year, or 622 (b) if the bhumidhar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act.
Explanation A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar sirdar, adhivasi or asami concerned in the actual performance of agricultural operations.
" The section appears to be somewhat involved in its phraseology.
But its purport is fairly clear.
A person who is not in consequence of the provisions of sections 18 to 21 of the U.P. Act 1 of 1951 a bhumidhar, sirdar, adhivasi or asami but who is in "cultivatory possession" of land during 1359 Fasli shall be entitled to the rights in respect of that land of an asami from year to year if the bhumidhar or sirdar of the land was on the appointed date a person who is referred to in item (i) to (vi) of section 10(2) of the U.P. Act 1 of 1951, and he shall be entitled to the rights of an adhivasi if the bhumidhar or sirdar of the land was not a person referred to in items (i) to (vi) of section 10(2).
The U.P. Act 31 of 1952 was enacted to grant protection to certain persons who had been in "cultivatory possession" of land in the holdings of bhumidhars or sirdars, and had been or were being forcibly evicted from the land by the tenure holders.
The language of the section clearly shows that it was intended to grant the rights of an asami or adhivasi according as the case fell within cl.
(a) or cl.
(b) to a person who had been admitted to cultivatory possession and who was in such possession in 1359 Fasli.
Pritam Singh had no right to the land at all and the revenue record shows that till the end of 1358 Fasli i.e. till June 30, 1951, the land was not in his possession.
Pritam Singh is recorded in the khasra of 1359 Fasli in the column for shikmi (sub tenant) as without settlement of rent", and Tota Ram and Lajja Ram are entered as cultivators.
In the khatauni for 1359 Fasli Pritam Singh is shown as "cultivator for ' one year, without settlement of rent".
There are similar entries in the khasra and khatauni for 1361 Fasli, and in 1362 Fasli the names of the plaintiffs are entered in the column of cultivator, and the name of Pritam Singh is shown in the column for shikmi.
The scheme of section 3 of the U J.P. Land Reforms (Supple mentary) Act, 1952 is different from the scheme of section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951.
Whereas under Act 1 of 1951 the entry is made evidence without further enquiry as to his right of the status of the person who is recorded as an occupant, under section 3 of the U.P. Land Reforms (Supplementary) Act, 1952, a person who claims the status of an asami or an adhivasi must establish that he was in "cultivatory 623 possession" of the land during the year 1359 Fasli.
The expression " cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation.
"Cultivatory possession" to be recognized for the purpose of the Act must be lawful, and for the whole year 1359 Fasli.
A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of section 3 of U.P. Act 31 of 1952.
We are of the view that the Allahabad High Court was right in holding in Ram Krishna vs Bhagwan Baksh Singh(1) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal vs Muloo and others(2) that occupation by a wrongdoer without any right to the land is "cultivatory possession" within the meaning of section 3 of the U.P. Act 31 of 1952.
A person who has no right to occupy land may rely upon his occupation against a third person who has no better title, but he cannot set up that right against the owner of the land.
It must be remembered that by section 3 of U.P. Act 31 of 1952 the Legislature conferred rights upon persons in possession of land against the tenure holders, and in the absence of any express provision, we are unable to hold that it was intended by the Act to put a premium upon forcible occupation of land by lawless citizens.
We have no doubt therefore that by forcibly occupying the land after 1358 Fasli, Pritam Singh could not acquire as against the bhumidhar of the land the rights of an adhivasi by virtue of section 3 of U.P. Act 31 of 1952.
Counsel for the appellants contended that the finding recorded by the First Appellate Court that Pritam Singh was in "cultivatory possession" in 1359 Fasli was binding upon the High Court in Second Appeal.
For reasons already set out, possession of a person in wrongful occupation cannot be deemed cultivatory possession.
Again the Appellate Judge in arriving at his conclusion ignored very important evidence on the record, and on that account also the conclusion was not binding on the High Court.
Pritam Singh 's name was recorded in the khasra for the year 1359 Fasli as sub tenant "without settlement of rent".
Pritam Singh did not offer to give evidence at any stage of the trial before the Assistant Collector, and it was not his case that he had entered into any contract of sub tenancy with Tota Ram and Lajja Ram.
The entry which records him as a sub tenant of Tota Ram and Lajja Ram for the year 1359 Fasli is on his own case (1) (2) I.L.R. [1963] All. 751.
624 untrue.
There is further no oral evidence in support of the case of Pritam Singh that he was in actual "cultivatory possession" of land and the entry relied upon by him does not support his case.
To get the benefit of section 3 of U.P. Act 31 of 1952, it had to be established that Pritam Singh was in actual cultivatory possession of the land and that fact is not established by direct evidence of possession, nor is it established by the entry relied upon by him.
The conclusion of the learned Appellate Judge that Pritam Singh was in "cultivatory possession" was partially founded on the conclusion recorded by him that in 1356 Fasli Pritam Singh was in possession of the land.
We have already pointed out that in so concluding he misread the khasra entry for 1356 Fasli and gave no effect to the khasra Baralisala which showed that Pritam Singh was not in possession of the land till the end of 1358 Fasli.
The learned Judge also inferred that because it was stated by Sri Ram the first plaintiff and his witness Maharaj Singh that no crops were cultivated during the Kharif season and as the khasra for 1359 Fasli showed that Bajra was sown in one of the plots in 1359 Fasli and gram was raised in all the plots, Pritam Singh must have been in possession as a sub tenant and must have cultivated the land in the Kharif season of 1.359 Fasli.
This was, in our judgment, a far fetched inference.
The Appellate Judge also did not refer to other evidence to which pointed attention was directed in support of his conclusion, by the Assistant Collector Agra: for instance, Banwari Lal, Naib Registrar examined on behalf of the plaintiffs had clearly stated that Pritam Singh was not in possession of the land prior to 1359 Fasli and that Tota Ram who was examined as a witness stated that Pritam Singh was not in possession of the land and he had not given the land to Pritam Singh on lease, and that he did not receive rent from Pritam Singh.
We are unable, therefore, to hold that a conclusion arrived at only from an entry in the revenue records which does not prima facie support the case of Pritam Singh, that he wrong fully trespassed upon the land and cultivated it may be regarded as conclusive in Second Appeal.
The High Court was, in our judgment, right in reaching the conclusion that Pritam Singh was not in "cultivatory possession" of the land in 1359 Fasli within the meaning of section 3 of Act 31 of 1952.
Counsel for the appellants finally contended that the High Court was incompetent in this suit to grant a decree for possession of the land to the plaintiffs.
Counsel submitted that a suit for possession, even against a trespasser, could lie only in the Revenue Court and not in the Civil Court, and the High Court by allowing amendment of the plaint in the Second Appeal before it could not assume to itself the jurisdiction which the Civil Courts do not possess.
Our attention was not invited to any provision which enacts that even against a rank trespasser the Civil Court may not pass a decree, in favour of an owner of the land, in ejectment in respect of agricultural land.
But even assuming that the statute 625 law in the State of U.P. warrants that submission, we think that the High Court had jurisdiction in the circumstances of the Present case to allow amendment of the plaint and to grant a decree for possession.
it may be recalled that the plaintiffs had originally tiled a suit for a declaration of title and for injunction restraining Pritam Singh from interfering with their possession.
The land was at the date of the suit under attachment by the order of the Magistrate, Ist Class, Agra, in proceedings under section 145 of the Code of Criminal Procedure, started by Pritam Singh, and the Magistrate had directed the parties to establish their possession or right to possession in a competent Civil Court.
A suit for declaration and injunction in that state of affairs was Properly filed.
If the plaintiffs established their title to the land, they could claim an order from the Criminal Court for delivery of Possession, and an injunction restraining Pritam Singh from interfering with their possession was an appropriate relief.
But it ap pears that pursuant to the order of the First Appellate court Pritam Singh obtained possession from the Criminal Court and hereafter the plaintiffs amended the plaint with the leave of the High Court and a decree for possession was claimed.
When the High Court held in favour of the plaintiffs and rejected the claim made by Pritam Singh, in our judgment, the High Court was justified, and indeed bound, to avoid giving a fresh lease of life to his litigation, to make an order consistently with the rights declared by it, since Pritam Singh had during the pendency of the suit managed to obtain possession of the land from the Court Officer who was in possession of the land.
A party who is defeated on the merits of the dispute may not by securing an order from another Court during the pendency of a ,suit be permitted to displace the jurisdiction of the Civil Court to, try the suit which was within its competence when the suit was filed.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
[/INST]Under s.10(1) of the Central Provinces and Berar Sales Tax Act 1947 every dealer required so to do by the Commissioner by notice, and every registered dealer, shall furnish such returns by such dates and so such authority as may be prescribed, and r.19 of the Rules framed under the Act provides that every registered dealer should furnish quarterly returns accompanied by a treasury challan in proof of payment of the tax payable.
If the registered dealer does not so furnish his return, the Commissioner may, after giving the dealer a reasonable opportunity assess him to the best of his judgment (4)(a).
Under s.11(4) (a).
Rule 32 prescribes that ordinarily not less than 30 days notice should be given to an assessee for submitting his explanation before action is taken under s.11(4)(a).
In 1953, s.11A was added to the Act.
Under s.11A(1) if in consequence of any information which has come into his possession, the other Commissioner is satisfied that any turnover of a dealer has escaped assessment, the Commissioner may, within three calendar years from the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to re assess the tax payable on any such turnover and also direct the dealer to pay a penalty.
In 1959, s.11A(3) was added by which, nothing in s.11A(1) shall apply to any proceeding including any notice under s.11, that is, the period of limitation of 3 years mentioned in s.11A(1) shall not apply to a proceeding under s.11(4)(a) on best judgment basis.
The appellants were registered dealers.
Their assessment year was from 1st November to 31st October.
They submitted their quarterly returns upto 30th April 1952.
Since no returns were submitted thereafter, on 13th September 1955, the assessing authority issued a notice with respect to the period 1st January 1953 to 31st December 1953 calling upon them to show cause why action should not be taken against them under s.11(4) (a).
A similar notice was issued on 27th October 1955 for the period 1st January 1954 to 31st December 1954, and on 7th July 1956, for the period 1st January 1955 to 31st December 1955.
The appellants repeatedly took time for submitting their explanation.
In 1958, fresh notices were issued for L/P(N) 7SCI (3)(a) 662 the calendar years1952 to 1955 and the appellants raised the objection, for the first time, that their assessment year was not the calendar year, but 1st November to 31st October.
In view of that objection, the first respondent issued another set of notices on 8th July 1959 for the periods 1st May 1952 to 31st October 1952, 1st November 1952 to 31st October 1953, 1st November 1953 to 31st October 1954 and 1st November 1954 to 31st October 1955 respectively.
The appellants contended that those notices were barred by the 3 year period of limitation under s.11A(1), but the assessing authority assessed the appellants on best judgment basis under section 11 (4) (a).
The appellants thereupon filed writ petitions in the High Court challenging the validity of the notices and the order of assessment, but the petitions were dismissed.
In appeals to this Court, the appellant contended that: (1) Section 11(4), (a) read with s.11A(3) contravenes article 14 of the Constitution, because, a registered dealer who had failed to submit his return could be proceeded against either under s.11(4)(a) or s.11A(1), but, whereas s.11A(1) provides a 3 year period of limitation, a proceeding under section 11(4)(a) could be initiated at any time in view of s.11A(3); (2) the notices of 1959 were barred by time; and (3) the notices of 1955 and 1956 were not valid, because, (a) the issue of one notice for several quarters was contrary to law, (b) that portion of the printed notice which said that the appellants had failed to furnish the return as required by a notice in that behalf served on them under s.10(1) did not apply to the appellants as no notice under s.10(1) had been given to them, (c) the assessment year mentioned in the notice was the calendar year which was not the assessment year of the appellants, and (d) though r. 32 provides that ordinarily not less than 30 days notice should be given to the assessee for submitting his explanation, the first notice gave to the appellants only 9 days time.
Held: (Per Wanchoo C. J., Mitter and Hegde, JJ.) (1) Section 11(4) (a) is void as it is violative of article 14.
The expression 'dealer ' in s.11A(1) includes both registered and unregistered dealers, and it cannot be contended that dealers are classified into registered and unregistered dealers, the former coming under s.11(4)(a) and the latter under s.11A(1).
To be a valid classification, it must not only be founded on an intelligible differential which distinguishes persons and things that are grouped together from others left out of the group, but that differentia must have a reasonable relation to the object sought to be achieved.
In the present case, both s.11(4)(a) and section 11A(1) are concerned with taxing escaped assessments, and judged from this object sought to be achieved by the Act, the classification of dealers into registered and unregistered dealers is not reasonable.
Therefore, even registered dealers are covered by section 11A(1).
As the 'information ' contemplated by s.11A(1) need not be from outside sources but could be gathered by the assessing authority from his own records, his knowledge of the facts that the appellants had not submitted quarterly returns and treasury challans and that they were notassessed to tax with respect to the turnovers in question constituted 'information ' to the assessing authority from which he could be satisfied that the turnovers had escaped assessment.
It would thus be open to the assessing authority to proceed against the appellants either under s.11(4)(a) or s.11A(1).
But as they were proceeded against under section 11(4)(a), they could not get the benefit of the limitation prescribed under section 11A(1).
It follows that section 11(4)(a) has become a discriminatory provision in view of section 11A(3), [672 B; 674 D E; 675 H; 676 A G].
663 Ghanshyam Das vs Regional Assistant Commissioner of Sales tax, Nagpur ; and Suraj Mall Mohta & Co. vs A, V. Visvanatha Sastri & Anr. ; , followed.
Maharaj Kumar Kamal Singh vs Commissioner of Income tax, Bihar & Orissa [1959] Supp. 1 S.C.R. 10, Commissioner of Incometax, Bombay City vs M/s. Narsee Nagsee & Co. Bombay, Salem Provident Fund Society Ltd. vs C. I, T. Madras, and United Mercantile Co. Ltd. vs Commissioner of Income tax, Kerala, referred to.
(2) But s.11(4)(a) is severable from the rest of the Act and its severance does not affect the implementation of the other provisions of the Act.
Therefore, the validity of the notices should be tested under s.11A(1).
So tested, the notices of 1959 are all barred by the 3 year period of limitation.
[676 G H].
(3) Since there was no valid notice for the period 1st May 1952 to 31st October 1952, there could be no assessment in respect of that period.
As regards the quarter 1st November 1952 to 31st January 1953 also, there was no valid notice.
The notice issued on 13th September 1955, no doubt refers to the period 1st January 1953 to 31st January 1953, but that is only a part of the quarter.
As a quarter is a unit in itself and there should be a notice for the entire quarter, the proceeding in respect of the quarter from 1st November 1952 to 31st January 1953 is also barred by limitation [677 E F].
But the notices issued in 1955 and 1956 are valid notices in so far as they relate to the period 1st February 1953 to 31st October 1955.
Any irregularity in the issue of the notices does not vitiate the proceeding, because, the liability to pay tax is founded on the charging sections.
[680 B C].
Chatturam & Ors.
vs C.I.T. Bihar, ; , applied.
Further, (a) The issue of one notice for several quarters is not contrary to law.
[678 E].
State of Orissa and Anr.
vs M/s. Chakobhai Chelabhai & Co. ; , followed.
(b) The assessing authority, by mistake, had failed to strike out the portion in the printed form which was inapplicable to the appellants who were registered dealers and on whom no notice need be served to furnish a return.
But this circumstance could not have prejudiced the appellants and such a mistake does not vitiate the notice.
[678 H].
Chakobhai Chelabhai 's case; , , followed.
(c) The mistake as regards the assessment year in the notices does not render the notices invalid.
The assesses deliberately kept silent and when they felt that the period of limitation prescribed by section 11A had expired, brought the fact to the notice of the authority.
The assesses were not prejudiced and could not be permitted to take advantage of such a mistake.
[679 G H].
(d) Rule 32 prescribes that ordinarily 30 days ' notice should be given.
Therefore, the period is not mandatory.
All that ss.11(4) and 11A require is that an assessee should be given a reasonable opportunity before he is proceeded against.
Since, in the present 664 A case, the appellants appeared before the assessing authority and did not object to the validity of the notices but asked for sub mitting their explanation, and as the time asked for was given, the appellants had a reasonable opportunity, for submitting their explanation.
[679 D G].
(Per Bachawat and Ramaswami JJ.) (1) Section 11(4) is not violative of article 14.
Construing ss.11(4)(a) and 11A(1) together it must be held that cases falling within s.11(4)(a) are excluded from the purview of S.11A(1).
Section 11(4)(a) specially provides for the initiation of proceedings against a registered dealer.
Having made this special provision, the legislature must be taken to have intended that the sales tax authorities must proceed against.
a registered dealer under s.11(4)(a) and not under s.11A(1).
[683 C B].
The classification and differential treatment of registered and unregistered dealers are based on substantial difference having a reasonable relation to the object of the Act.
The legislature did not prescribe a period of limitation for a proceeding initiated under section 11(4)(a) against a registered dealer, because, (i) the registered dealer is under a statutory obligation to file a return, (ii) no penalty is leviable under s.11(4) and (iii) the registered dealer is given many advantages under the Act which are denied to an unregistered dealer.
Therefore, the bar of limitation in the case of an unregistered dealer and the absence of such a bar in the case of a registered dealer cannot be regarded as unjust or discriminatory.[684 B, G H].
Ghanshyam Das vs Regional Assistant Commissioner of sales Tax Nagpur, [1964]4 S.C.R. 436, Maharaj Kumar Kamal Sing vs Commissioner of Income tax, Bihar & Orissa, [1959] Supp. 1 S.C.R. 10 and Commissioner of Income tax vs Narsee Nagsee & Co. , explained.
(2) Section 11A(3) expressly provides that nothing in section 11 A(1) shall apply to any proceeding including any notice under section 11 and the section is retrospective.
It follows that the period of limitation provided by s.11A(1) cannot be applied to a proceeding or notice under section 11(4).
Consequently, the impugned notices of 1959, issued under s.11(4) are not barred by limitation and are not invalid [682 H; 683 A].
Ghanshyam Das 's Case; , , referred to (3) Even the notices issued in 1955 and 1956 initiated proceedings validly under section 11(4) for the period from 1st February 1953 to 31st October 1955, as the irregularities in the notices did not invalidate them.
[685 B C].
</s>
|
<s>[INST] Summarize the judgementAppeals Nos. 244 and 245 of 1958.
Appeal by special leave from the judgment and decree dated February 19, 1953, of the Madras High Court in Second Appeals Nos.
2120 and 2121 of 1947.
A. V. Viswanatha Sastri and M. section K. Iyengar, for the appellants.
K. N. Rajagopala Sastri and M. section K. Sastri, for respondent No. 1A. section V. Venugopalachari and R. Gopalakrishnan, for respondent No. 8A in Appeal No. 244 and respondent No. 7A in Appeal No. 245.
April 27.
The Judgment of the Court was delivered by SUBBA RAO, J.
These two appeals are directed against the judgment of the High Court of Madras dated February 19, 1953, setting aside that of the District Judge, Tirunelveli, and restoring that of the Subordinate Judge, Tuticorin, in O. section Nos. 45 and 46 511 of 1945 on his file, and they raise the question of maintainability of a suit in regard to honors and perquisites in the temple of Athinathalwar in Alwar Tirunagari.
At Alwar Tirunagari in Tirunelveli District there is a famous temple called Athinathalwar temple.
The presiding deity in the temple is Lord Vishnu.
Its origin is lost in antiquity.
In 'the 10th and 11th centuries Vaishnavite saints, called Alwars and Acharyas, who were ardent devotees of Lord Vishnu, worshiped at the temple and sang in praise of the Lord.
As time passed by, 20 smaller temples were erected to commemorate the lives of Alwar8 and Acharya8.
Within the compound of the main shrine, there are three minor shrines of Nachiar, Nammalwar, and Garuda; the rest of the smaller shrines are outside the premises of the main temple.
Each of the said temples has its own manager, archakas and separate endowments; but, presumably because of the fact that the Alwar8 and Acharyas, whose idols are installed in the smaller temples, were originally devotees of Sri Athinathalwar, an interesting and novel practice of mutual and regular exchange of visits between the idols in the smaller shrines and the idol of Athinathalwar has grown over the years.
During certain specified occasions in the year, the idols in the minor temples are brought to the main temple for worship; so too, on specific occasions the idol of Athinathalwar is also taken to the minor shrines; such visits being reminiscent of the days when the Alwars and Acharya8 worshiped in the temple of Athinathalwar.
Sri Ramanujacharya was one of the greatest of the devotees of Lord Vishnu and is well known throughout this vast country as the progenitor of an important school of Indian philosophy.
He died in the year 1127 A. D.
In the 13th century a shrine was built in his honour and his idol was installed therein.
Sri Ramanujacharya is also known as Udayavar or Emberumanar and the shrine built in his dedication is known as Emberumanar temple.
The manager and archaka of the said temple is known as Emberumanar 512 Jeer.
Emberumanar temple also is outside the precincts of the temple of Athinathalwar.
There are also mutual visits between the idol of Emberumanar and the idol of Athinathalwar to each other 's temple.
The present Emberumanar Jeer is the plaintiff in the suits out of which the appeals have arisen.
There is a mutt called the Vanamamalai Mutt in the said District and the head of the mutt is known as Vanamamalai Jeer.
He is a sanyasi held in reverence by Vaishnavites of South India.
He is the first defendant.
The heads of the Ahobilam Mutt and the Tirukkurungudi Mutt are the second and third defendants respectively.
The fourth defendant is the Executive Officer of the temple of Sri Athinathalwar and he was appointed by the Hindu Religious Endowments Board, Madras.
The records disclose that, at any rate from the middle of the last century, there have been disputes between the various Jeers and others as regards the order of priority in which certain honours have to be distributed among the said Jeers when they attend the temple of Sri Athinathalwar for worship.
In the ghoshties (group of worshipers in front of the deity) both on ordinary and special days the said Jeers are shown honours befitting their rank.
The honours consist of distribution of theertham, thulasi, satari and viniyogam, and a few more similar items.
Each of the said Jeers is allotted a particular place in the ghoshti and a certain order of precedence is observed inter se between them.
This order of precedence in the matter of receiving honours has become an unending source of bickering between the religious heads; with the result, the Madras Hindu Religious Endow ments Board, constituted under Act 1 of 1923, with jurisdiction to administer the endowments in the Madras State, had to interfere and settle the disputes inter se between the various Jeers.
On May 12, 1927, the said Board fixed the order of precedence for honours between the various Jeers to be observed both on ordinary and special days.
By the said order the Board recognized the Emberumanar Jeer 's right 513 to the honours and perquisites in precedence over the other Jeers on all the days other than Vaikasi festival days, except the 7th day, and as regards the other days of the festival, namely, 1st to 6th and 8th to 10th days, the Board directed that the other Jeers should be shown on the respective days both the ordinary and special honours in precedence over the rest of the Jeers, including the Emberumanar Jeer.
Not satisfied with the said order, the Emberumanar Jeer filed O. section No. 320 of 1933 in the Court of the District Munsif, Tirunelveli, which was later transferred to the Court of the Subordinate Judge, Tuticorin, as O. section No. 45 of 1945, against the other Jeers and the Hindu Religious Endowments Board, for the declara tion of his right to the first theertham and other per quisites in precedence over all the others in the ghoshties of Sri Athinathalwar temple on the ground that he was entitled to them as the office holder of the, temple of Emberumanar.
Subsequent to the filing of the suit, the Board, by its order dated May 15, 1935, altered the order of precedence giving the Vanamamalai Jeer precedence over the Emberumanar Jeer; and this led to the Emberumanar Jeer filing another suit O. section No. 201 of 1941 in the Court of the District Munsif, Srivaikuntam, for a declaration of his right to the first theertham, etc., in precedence over all the others.
This suit was later transferred to the Court of the Subordinate Judge, Tuticorin as O. section No. 46 of 1945, to be tried along with O. section No. 45 of 1945.
To the suits the Emberumanar Jeer, the Vanamamalai Jeer, the Ahobilam Jeer and the Tirukkurungudi Jeer, and the Executive Officer of the Hindu Religious Endowments Board were made parties.
These suits have had a chequered career.
But we shall briefly refer only to those stages of the long drawn litigation which have some bearing on the questions raised in the present appeals.
O. section No. 320 of 1933 was finally numbered as O. section No. 66 of 1936 and was disposed of on March 25, 1941, by the District Munsif, Tirunelveli.
The learned District Munsif dismissed the suit on the ground that it was not maintainable as the plaintiff had no legal right in respect 514 of which he could seek relief in a civil court.
On appeal, the learned Subordinate Judge, Tirunelveli, came to the conclusion that, as the plaintiff had come to court to establish his right of precedence to receive the theertham, etc., as forming part of the emoluments of his office of aradanaikar in the suit temple, the suit could not be dismissed on the preliminary ground that it was barked under section 9 of the Code of Civil Procedure; on that basis, he set aside the decree of the District Munsif and remanded the case for trial on other issues arising in the case.
Both the parties preferred appeals to the High Court of Madras and they were numbered as C. M. As.
Nos. 1 and 155 of 1943; on January 31,1945, Chandrasekara Aiyar, J., dismissed both the appeals.
The learned Judge propounded alternative theories, and he expressed himself thus: "Of course, before he (plaintiff) can succeed in the suit, the plaintiff has to make out that he being the Aradanaikar and trustee of the Emberumanar temple amounts to his holding an office in the suit temple." The learned Judge agreed with the Subordinate Judge that the suit could not be dismissed in limine without deciding the said question of fact.
On remand, the learned Subordinate Judge, Tuticorin, to whom the said suit and the connected suit, being renumbered O. section Nos. 45 and 46 of 1945, were remanded came to the conclusion that the Emberumanar temple was a sub shrine attached to the main temple of Sri Athina thalwar, and that the plaintiff, who was the aradanaikar of the sub shrine, would be virtually an office holder in the main temple.
He further hold that the privilege of first theertham was attached to the said office as part of its remuneration and, therefore, the suit was one of civil nature falling under section 9 of the Code of Civil Procedure; in that view, having held on the merits that the plaintiff had established his right of precedence, he decreed both the suits.
As many as six appeals were preferred against the decrees in the two suits by the aggrieved parties to the District Court; and the learned District Judge in a common judgment disposed of them on January 23, 1947.
515 The learned District Judge, on a review of the evidence in the case, held that the institutions were not interdependent or intimately connected in such a way that an office holder of the Emberumanar temple was necessarily an office holder of the Athiiiathalwar temple.
On that finding, he held that the plaintiff was not an office holder of the Athinathalwar temple and, therefore, he was not entitled to file a suit with regard to his rights of precedence in being given the theertham, etc.
In the result he allowed the appeals and dismissed both the suits with costs throughout.
Against the said judgment, the plaintiff preferred second appeals to the High Court of Judicature at Madras, being Second Appeals Nos. 2120 and 2121 of 1947.
They were heard by Krishnaswami Nayudu, J., who on a reconsideration of the evidence disagreed with the finding arrived at by the learned District Judge and accepted the finding given by the learned Subordinate Judge.
Not only the learned Judge accepted the finding of the learned Subordinate Judge that the plaintiff as the aradanaikar or the archaka of the sub shrine was virtually an office holder in the main temple, he also went further and held that, as one of the theerthakars, the plaintiff could be considered to be the holder of the office of arulipad in the main temple.
In the result the learned Judge set aside the decree of the District Judge and restored the decrees of the learned Subordinate Judge.
As leave to appeal to a division bench was not given by the learned Judge, the first defendant, i.e., the Vanamamalai Jeer, in the suits, by special leave, has preferred these appeals against the judgment of the High Court.
Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, raised before us the following points: (1) A suit for a declaration that the plaintiff is entitled to honours in a temple would not lie unless he establishes that he holds an office in the said temple and that the said honours form part of the perquisites attached to the said office, and that, as in the present case the plaintiff claimed that he was an aradanaikar and trustee of only the Emberumanar temple and as such entitled to honours in Athinathalwar temple, 516 the suits should have been dismissed in limine on the ground that the plaints did not disclose any claim of civil nature falling under section 9 of the Code of Civil Procedure.
(2) The Courts were not justified in allowing the plaintiff to make out a now case not disclosed in the plaints, namely that the Emberumanar temple was a subordinate shrine of the Athi nathalwar temple and, therefore, the plaintiff was the office holder of the latter temple; assuming that there was justification for the courts in allowing the plaintiff to develop a new case at a very late stage of the proceedings, there was a clear finding of the District Court based on the evidence adduced in the case that the Emberumanar temple was not a sub shrine of the Athinathalwar temple, and the High Court had no jurisdiction to set aside that finding in second appeals.
Mr. Rajagopala Sastri, learned counsel for the respondents, contended that the plaintiff 's alternative case was not really a new one, but all the relevant facts in support of that case were disclosed in the plaints, and that the finding of the District Judge was not a finding of fact but was either a legal inference from proved facts or a mixed question of fact and law.
He argued that the contention of learned counsel for the appellant ignores the religious background and ideas of the class of persons with which we are now concerned, and that, if the matter is approached from a correct perspective, as the High Court did, it would be realized that there was such an association between the two temples as it could be said that one is subordinate to the other leading to the only irresistible inference that the plaintiff, the office holder of the sub shrine, could claim honours in the main temple of which the sub shrine is only a part in the larger sense.
At the outset it would be convenient and necessary to notice briefly the law pertaining to the maintainability of suits in civil courts in respect of honours in temples.
Section 9 of the Code of Civil Procedure describes the nature of suits which a court has jurisdiction to entertain.
It can entertain every suit of a civil nature excepting suits of which its cognizance is 517 either expressly or impliedly barred.
As a corollary to this, it follows that a court cannot entertain a suit which is not of a civil nature.
Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil court, for they do not deal with legal rights of parties.
But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies.
It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies.
It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject matter of a civil suit.
Honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a tem ple cannot be placed on a higher footing than the religious rights or ceremonies, for they are integral part of the said rites or ceremonies in the sense that the said honours are shown to persons partaking in the ceremonies.
Prima facie honours, such as who is to stand in the ghoshti, in what place, who is to get the tulasi, etc., in which order, and similar others, cannot be considered to be part of the remuneration or perquisites attached to an office, for they are only tokens of welcome of an honoured guest within the precincts of a temple.
One would have thought that it would even be a sacrilege to claim a right of precedence in the presence of the Almighty God, for all go before him as humble devotees to earn his blessings and not to assert their self importance or claim their right to preferential treatment.
But a century of case law in that part of the country has recognized certain rights of different grades of devotees and they and their innumerable followers began to cherish them or even to fight for them in criminal and civil courts.
This Court, therefore, does not propose to reconsider the 66 518 question of honours on first principles but only will resurvey the law on the subject with a view to ascertain, and if possible to clarify, the legal position.
The earliest decision is that in Striman Sadagopa vs Kristna Tatachariyar (1).
There, the plaintiff was the gurukkal of Sri Ahobilam Mutt and he sued the trustees of Sri Devarajaswami temple at Conjeevaram for damages for injuries done to him by withholding from him certain honours and emoluments and also sought to have his right to such honours and emoluments established for the future.
Two Schedules were attached to that plaint and they showed inter alia that what was claimed as honours were such as garlands, cocoanuts, prasadams and other paraphernalia attending the ceremonial recitation when the gurukkal visited the temple.
Scotland, C.J., formulated the legal position thus: ". . . these clearly show that every one of the matters in respect of which the suit is brought is purely a matter of religious and sacred observance in connection with the worship and ceremonials at the pagoda, and is claimed by the plaintiff as a matter of devotional respect and display due to his priestly rank or as a votive offering made to him whilst passing in procession through the temples, and when brought to the presence of the principal idol.
" Then the learned Chief Justice proceeded to state: "He (the plaintiff) is not officially connected in any way with the management or control of the pagoda, or its property or funds; and the alleged dues of his office have no doubt been owing to the great reverence at one time entertained for his sacredotal rank in the Hindu religion, and the importance from a religious point of view of his mere presence at the pagoda." He concluded thus: "Such honours and emoluments cannot in any respect be considered as remuneration for duties or ministrations performed by the plaintiff in the secular affairs or religious services of the pagoda." (1) ,3o6.
519 This decision, which has stood the test of time, clearly lays down that a suit to enforce the rights of persons holding offices connected with the management and regulation of temples and for honours and emoluments connected therewith would lie in a civil court; but a suit by a plaintiff, who does not hold an office in the temple, claiming honours customarily shown to him as a matter of devotional respect and display due to his rank is not of a civil nature.
The principle laid down in this case and restated in subsequent cases has been applied by a division bench of the Madras High Court to a claim for first theertham, etc., in Sri Rungachariar vs Rungasami Buttachar (1).
That decision was given in an appeal arising out of a suit for a declaration that the plaintiffs had a hereditary miras right to the offices of Sthalathar, Kutumba First Theertham, Muntrapushpam, Vedaparayanam and Adyapakam from times immemorial in the temple of Sri Parimala Ranga nathaswami at Tiruvilandur, and, by virtue of such right, were entitled to a fourth share of the honours and emoluments due to their offices as detailed in schedule A of the plaint.
The learned Judges, on the evidence, came to the following conclusion: ". . the plaintiffs as hereditary Sthalathars are bound to perform, besides the duties of superintendence attached to their office of Sthalathar, the ceremonial duties of vedaparayanam, etc., and are entitled to receive remuneration for the performance of those duties.
Included in this remuneration is the privilege of first theertham ' from which the plaintiffs are called 'theerthakars".
Then the learned Judges proceeded to observe: "Taking the findings to be, as we do, that the privilege of the first theertham is attached to the hereditary office of the plaintiffs as a part of the remuneration of the office, the Court must, to protect the plaintiffs in the enjoyment of the office, declare what is the honour to which they are entitled.
" This decision recognizes that a suit for a declaration of a plaintiff 's right to an office and for the honours, (1) Mad.291, 208.520 such as first theertham, etc., as part of the remuneration will lie in a civil court.
Athan Sadagopachariar Swamigal vs Elayavalli Sri nivasachariar (1) is a decision relating to honours in Athinathalwar temple itself.
The plaintiff in that case was a trustee of a temple called Pillalokacharyar 's temple.
The principal object of the suit was to prevent the first defendant from claiming to be one of the Adhyapaka Mirasidars in the temple of Nammalwar and Adinathar in Alwar Tirunagari.
It was contended that the first defendant was one of the seven Adhyapaka Mirasidars in the temple and his rank in the ghoshti was just above the plaintiffs.
Sadasiva Aiyar, J., posed the question raised and gave his answer thereto thus: "The legal question I wish to say something about is whether a suit for the honours mentioned in the second item of the 2nd Schedule to the plaint is maintainable in a Civil Court.
It is clear that if those honours are not attached to any office in the temple, no such suit could lie.
The first branch of the question, therefore, is a question of fact, viz., whether these honours are attached to the Adhyapaka Miras office in the temple."
After considering the evidence and other relevant decisions, the learned Judge came to the following conclusion: "I see no difficulty whatever in holding on the evidence in this case that the plaintiffs and the 1st defendant and the 5 other Adhyapaka Mirasidars get their rank in the Goshti and their rank in the distributions of prasadams not because those honours are part of the Adhyapaka Miras office to which they are entitled but because of their being Acharya Purushas or of their families having been very respectable religious families for long or because the mere respect due to their offices has been considered as making them fit in a social, and religious point of view to obtain such honours.
" That would be enough to dispose of that appeal, but the learned Judge proceeded to make certain observations even on the assumption that the said honours (1) , 299, 300, 301. 521 had been attached to emoluments so far as the 7 Adhyapaka Mirasidars were concerned.
The observations of the learned Judge, though obiter, deserve to be quoted not only because of his vast experience in matters of Hindu religion but also because of his well known reformative zeal to remove the cobwebs that shroded the Hindu religion by superstitious ignorance and perverted imposition.
The learned Judge says: ". . the next question of law is whether such honours to be shown in the presence of God can be legally attached to the office as emoluments, in other words, can honours be legally claimed by anybody as receivable by him in a temple? When a trustee chooses to parade the temple elephants and dancing girls before a high official or any other person and gives him prasadams, etc., he does it in order to show 'honours ' to that person and when he does it without prejudice to the conduct of the rituals and ceremonies in the temple, he always says that the God of the temple Himself condescends to treat the official or other persons as God 's guest and shows him these 'honours '.
Such persons to whom respect is shown cannot in my opinion claim such 'honours ' as a legal right, but as a favour shown by the temple Deity.
Such honours in the strict eye of the Shastras cannot be called honours at all but as doles condescendingly given by the temple Deity as a 'favour '.
One of the honours, as is well known, shown to a, Hindu in a Vaishnava temple is to place the impression of the feet of the Deity upon the head or shoulders of the devotee.
Another is the distribution of the 'leavings ' of the food offered to the Deity to the distinguished devotee.
The sandal paste of the feet of the Deity and the leaving of his food and the garland worn by the God are given as marks of pure grace and not as rights and hoilours claimable by the devotee. .
This clearly shows that while we ought to humbly accept the Deity 's leavings given through the trustee or an archaka, a claim for 'honour ' to be shown in the presence of God is a sinful claim and is illegal and unshastraic.
I would therefore respectfully confine the decision in Sri Bungachariar vs Bungaswami Buttachar(1) to cases in which the receiving of the first theertham by an office holder has become indissoluble part of the ritual to b e performed by the recipient as an office holder and the extension of the principle should be carefully guarded against.
These are weighty observations and if they were appropriate in the year 1913 they should be much more so in the year 1961."
We respectfully accept these observations as laying down the correct proposition, namely, that a party claiming an honour like first theertham, etc., has to prove not only that he is an office holder of the temple and that he has been receiving the first theertham in the Ghoshti but also that the receipt of the first theertham, has become an integral part of the ritual to be performed by him as an officeholder; for, the receipt of the first theertham would be consistent with its being shown as a grace from the Lord and also as its being a part of the remuneration to the office.
Another division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponappa Ayyengar (2) had to consider the question of a claim to a religious honour which consisted of receiving theerthams and prasadams in the temple in certain order of precedence.
This case also relates to Athinathalwar temple and to the question of precedence among the theerthakars.
The first question raised was whether there was such an office as theertham office in the temple.
Krishnan, J., delivering the leading judgment, in rejecting that there was such an office observed: "It may be mentioned that among the Theer thakars there are some 5 or 7 in number, who are called Adhyapakamdars, whose special duty it is to recite these Prabandams and they are remunerated by Inam lands given to them.
They are what may be called the official reciters in this temple."
Adverting to the question raised, the learned Judge proceeded to observe: "It is clear that, to constitute an office one, if not (1) Mad, 291, 298.
(2) 961, 962.the essential, thing is the existence of a duty or duties attached to the office which the office holder is under a legal obligation to perform and the nonperformance of which may be visited by penalties ,such as a suspension, dismissal, etc."
Applying the test in the case of Theerthakars and other Adhyapakamdars, the learned Judge said: "The only difference between the outsiders and the Theerthakars, as shown by the evidence, is that the Theerthakars have special places allotted to them in the temple to stand and recite and they are given the honour of Theertham and Prasadam, before the outsiders get them; and they have what is called an 'Arulapad ', that is, their names are called out by the Archaka in a certain order, when, if present, they have to respond by saying 'Nayinde ', meaning 'I am here '.
This does not seem to show that they are anything more than a recognized and privileged class of worshipers who are shown special consideration by having places allotted to them in the temple and by being given the honours before the ordinary worshipers in an order of precedence fixed by the usage of the temple."
On a consideration of the evidence in that case, the learned Judge stated: "On the evidence as set out it must be held that the plaintiffs have not made out the existence of any obligatory duty on the part of the Theerthakars or Of any office called the Theertham office."
This judgment, therefore, establishes that there is no office called the theertham office in the temple, as there is no obligatory duty on the part of the said theerthakars in the temple.
As the claim to the said honour was not established to have been attached as emoluments to the religious office the suit was dismissed.
Sri Emberumanar Jeer Swamigal vs The Board of Commissioners for Hindu Religious Endowments, Madras (1) is a decision of a single Judge of the Madras High Court in a writ petition filed by Emberumanar Jeer questioning the order of the Religious Endowments Board which is the subject matter of (1) , 591. 524 the present appeals.
That writ petition was dismissed on the ground that the Board 's order related to administrative matter and, therefore, a writ of certiorari would not lie to quash the same; but in the course, of the judgment, Pandurang Row, J., made certain relevant observations and they are: "What was determined by the Board was the order of distribution of theertham and honours connected with theertham.
This matter cannot in my opinion be regarded as a determination of any rights of subjects.
The rights of subjects referred to in the rule are rights which can be legally enforced and not mere honours or precedence claimed or recognized as a matter of courtesy or usage.
It is not seriously disputed that the right to obtain the theertham or honours in a particular order of precedence is not a civil right which can be enforced or declared in a Civil Court."
After citing the observations in Sriman Sadagopa vs Kristna Tatachariyar (1), the learned Judge observed: "Indeed the rule that Civil Courts cannot take cognizance of claims to mere honours or privileges of the nature referred to above has been unquestioned for many years and every attempt to evade that rule has met with failure." The observations of the learned Judge are rather wide, for, as the earlier decisions show, though a suit for privileges or honours per se may not lie in a Civil Court, if they are annexed to an office, they can be agitated therein.
This judgment was taken in appeal to a division bench of the High Court, consisting of Leach, C. J., and Somayya, J., who confirmed the same.
They observed: "It is acknowledged that a question relating to the distribution of theertham or other temple honours cannot be made the subject matter of a suit as it is not a question which affects a legal right." The remarks we made in regard to the observations of Pandurang Row, J., would equally apply to these observations.
They do not represent the entire law on the subject, but only a part of it.
(1) 525 It is not necessary to refer to further citations, for the decisions already cited lay down the relevant principles of law clearly.
For convenience of reference we may summarize the law on the subject thus: (1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a civil court.
(2) But a suit to establish one 's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites, is maintainable in a civil court.
(3) The essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non observance of which he may be visited with penalties.
(4) So judged, there cannot be an independent office of theerthakar, for a theerthakar has no obligatory duties to perform; nor can there be an office of arulipad; the said word only connotes that the names of the theerthakars are called out by the archaka in a certain order.
(5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to the office as part of its per quisites in the sense that they have become an integral part of the ritual to be performed by the recipient as the office holder or are only shown to him as a mark of respect on the occasion of his visit to the temple.
Having regard to the said principles, lot us now look at the contentions raised in this case.
The first submission of learned counsel for the appellant is that, in view of the said principles, the suit should have been dismissed in limine on the basis of the allegations in the plaint.
In paragraph 4 of the plaint in O. section No. 45 of 1945, the claim of the plaintiff to the office is stated thus: "The plaintiff is the present Emberumanar Jeer and as such the aradhanaikar and trustee of the said 67 526 Emberuraanar temple having been appointed and nominated by his predecessor Sri Sadagopa Ramanuja Jeer who died in 1930.
" In paragraph 7 of the plaint, his claim to the honours is stated thus: "In his capacity as holder of the office of aradhanaikar and trustee of the Emberumanar temple and as emoluments attached to the said office, the Emberumanar Jeer is by immemorial usage and custom entitled to receive, in the ghoshties that are formed before all the sannidhies in the Adhinathalwar temple on all occasions of each day on all the days of the year without exception, the first theertham and other honours described in Schedule 1 below and the perquisites described in Schedule 11 below." In paragraph 9 it is further stated: "In his capacity as holder of the office of Aradhanalkar and trustee of Emberumanar temple and as emoluments attached to the said office the Emberumanar Jeer is entitled to receive on the 7th day of Vaikasi festival in the Athinathalwar temple, in addition to and along with the honours and perquisites described in Schedules 1 and 11, certain other honours such as the tying of the silk gear, etc., more particularly described in Schedule III hereto.
These are known as special honours while the honours described in Schedules I and II are known as ordinary honours."
It is clear from the said allegations that the claim of the plaintiff to the ordinary and special honours in the Athinathalwar temple is based upon his capacity as office holder as Aradhanaikar and trustee of Emberu manar temple.
There is no allegation that he is an officeholder in Athinathalwar temple.
In the written statements filed by the defendants the claim of the plaintiff to the said honours is denied.
In O.S. No. 46 of 1945 also the claim of the plaintiff to the honours is based upon the same allegations that are made in the plaint in O. section No. 45 of 1945.
In the written statement filed by the defendants the said claim is denied.
Indeed, the original issues reflected 527 only the allegations found in the pleadings.
If the courts had directed their minds to the pleadings, as they should have done, instead of traveling beyond them in search of some plausible basis to sustain the plaintiff 's claim the suits would have been dismissed for the simple reason that on the allegations in the plaint the plaintiff was not an office holder in the temple of Athinathalwar and, therefore, he ' could not claim the honours shown to him in the said temple as perquisites attached to his office; but unfortunately this was not done, and we think that it is too late to dismiss the suit on that ground when all the parties adduced voluminous evidence on the alternative ground and took the decision of the courts.
We shall, therefore, pro ceed to consider the case on the alternative basis on which the claim has been put forward on behalf of the plaintiff in the courts below.
To appreciate the said basis, it is necessary to re capitulate the relevant facts.
Originally, the District Munsif dismissed the suit O. section No. 320 of 1933 (0. section No. 45 of 1945 on the file of the Court of the Subordinate Judge, Tuticorin) on the ground that the plaintiff has no legal right in respect of which he could seek relief in a civil court.
But on appeal the learned Subordinate Judge set aside the decree and remanded the suit for trial.
In paragraph 18 of his judgment, the learned Subordinate Judge stated: "In view of the above authorities I am of opinion that when the present plaintiff has come to Court with a specific case set out in paragraphs 7 and 9 of his plaint that his right of precedence to receive theertham, thulasi, satari, prasadam and other per quisites forms part of the emoluments of his office of aradanaikar in the suit temple, the suit cannot be dismissed on the preliminary ground that it is barred under Section 9, Civil Procedure Code.
There is an obvious mistake in this statement, for in the paragraphs mentioned therein it is not alleged that the plaintiff has an office in the Athinathalwar temple."
Presumably this mistake lead the learned Judge to come to the conclusion which he did.
On appeal, in the High Court it was pointed out to the court that 528 temple.
But Chandrasekara Aiyar, J., for the first time, allowed the plaintiff to make out a new case.
The learned Judge stated the said case in the following words: "One view to take up in this case is what was adopted by the District Munsif, namely, that as the plaintiff admittedly holds no office in the Athinathalwar temple he cannot claim these honours.
The other view which found favour with the Subordinate Judge is that owing to the alleged associations of the two temples, their interlinking and their interdependence, the Aradanaikar and trustee of the Emberumanar temple might claim to be regarded as an office holder in the Athinathalwar temple."
The learned Judge did not decide the point, but he observed: "But the idea of two temples or Mutts, of equal rank and co ordinate and independent authority or where one is the primary institution and the other its subsidiary or adjunct being linked together for certain purposes of worship and observance of rituals cannot be said to be entirely foreign to Hindu notions."
He concluded thus: "Of course, before he can succeed in the suit, the plaintiff has to make out that he being the Aradanaikar and trustee of the Emberumanar temple amounts to his holding an office in the suit temple." The question whether the origin of this new case is found in the judgment of the Subordinate Judge or that of Chandrasekara Aiyar, J., need not detain us.
This is a new case not disclosed in the plaint; but after remand both the parties directed their attention to this question and adduced all the relevant evidence pertaining thereto.
On remand, the learned Subordinate Judge in an elaborate judgment considered the said aspect of the case.
He considered the evidence under three heads, namely, (i) historical, (ii) administrative, and (iii) financial.
On the first head after considering the origin of the two temples, the learned Judge came to the 529 conclusion that the idea that the Emberumanar temple was historically connected with Athinathalwar temple could not be "poopoohed".
Under the administrative head, he found that till 1926 Emberumanar temple was merely a sub shrine attached to the bigger Athinathalwar temple, and the trustees of the latter temple were exercising administrative control over it as such.
Coming then to the financial side, he found that there was sufficient evidence to justify the inference that the two were intimately connected even financially.
Passing on to the question of ceremonial and religious association between these two temples, the learned Judge found that there was similarity in the mode of routine and day to day worship in the two temples; but there was no interlinking or interdependence between them in that matter.
Then the learned Subordinate Judge pointed out that notwithstanding that there was no interlinking and interdependence in that matter, they were so intimately associated with each other in other religious rites and ceremonies as to lead to the inference that the Emberumanar temple was after all only a sub shrine attached to the main temple of Athinathalwar.
Then he pointed out that the question in the said form was not before Chandrasekara Aiyar, J., but thought that it was open to him to go into the said question.
After going into the evidence, he finally came to the conclusion that apart from historical and secular association, there had been also ceremonial and religious association between the two temples and, therefore, the Emberumanar temple was nothing but a sub shrine attached to the main temple of Athinathalwar.
On that finding he further held that the plaintiff who was admittedly the aradhanaikar of the said temple was virtually an office holder in the main temple.
In the appeals filed by the various parties against the decrees of the learned Subordinate Judge, the learned District Judge of Tirunelveli reviewed the evidence once again under the said three heads and came to a contrary conclusion.
On the administrative side he found that the Emberumanar temple was not subordinate to the 530 temple of Athinathalwar, in the sense that the authorities of the latter temple could give orders to the authorities of the Emberumanar temple, that is, the former was not subordinate to the latter temple administratively.
On the financial side, he was equally emphatic that the two institutions were not interdependent.
On the religious or ritual aspect, the learned District Judge held that, as both the institutions were constructed in the same place, there must have been some connection between the two and in that sense in a general way the Emberumanar temple might be described as a sub shrine.
On the said facts, the learned Judge posed the following question for his consideration: "What is the inference to be derived? On the evidence, he answered the question thus: "I hold on the evidence that these institutions are not interdependent or intimately connected in such a way that an office holder of Emberumanar temple is necessarily an office holder of the Athi nathalwar temple.
I hold therefore that the plaintiff is not an office holder of the Athinathalwar temple and therefore he is not entitled to file a suit with regard to his rights of precedence in being given theertham."
This finding is certainly a finding of fact based upon the entire evidence in the case.
In the second appeal, the learned Judge of the High Court, on a review of the evidence, disagreed with the learned District Judge and accepted the finding of the learned Subordinate Judge, and held, for similar reasons, that the plaintiff was virtually an office holder in the main temple; he further held that the plaintiff could also be considered to be the holder of the office of arulipad and, in that capacity also he was entitled to the first theertham and other honours.
The first question is one of fact.
The learned District Judge, though he differed from the Subordinate Judge, held, on a consideration of the entire evidence that the plaintiff was not an office holder in the Athinathalwar temple.
It has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of 531 fact however gross the error may seem to be.
The judgment of the learned Judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge.
The second ground of decision of the High Court is based upon a case that was raised for the first time before it.
Nowhere in the plaints or before the two subordinate courts the plaintiff attempted to sustain his claim on his being the holder of the office of arulipad.
The High Court, therefore, was not justified in allowing the plaintiff to set out any such claim for the first time in the second appeal.
That apart, it does not appear that there is an office called arulipad.
A division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponnappa Ayyengar (1) had an occasion to define the word "arulipad".
There, a claim was made to the office of Theerthakar.
On the evidence it was held that the plaintiffs had not made out the existence of any obligatory duty on the part of Theerthakar in the temple.
In that context Krishnan, J., observed thus: ". . . the Theerthakars have special places allotted to them in the temple, to stand and recite and they are given the honour of Thertham and Prasadam, before the outsiders get them; and they have what is called an "Arulipad", that is, their names are called out by the Archaka in a certain order, when, if present, they have to respond by saying 'Nayinde ', meaning 'I am here '."
It is, therefore, clear that there is no office designated as " arulipad", but that word only describes the duty of the archaka to call their names to ascertain whether the theerthakars are present in the ghoshti.
There is no evidence in this case that the plaintiff, as a theerthakar, has any obligatory duty in the Athinathalwar temple to perform and, therefore, it is not possible to treat him as an office holder in that capacity in the said temple.
This leads us to the argument of the counsel for the respondent that, though it cannot be said that the Emberumanar temple is a part or a subordinate of the Athinathalwar temple in the sense that all the (1) 532 office holders of the former are the office holders of the latter, there is sufficient ritual connection between the two which in the consciousness of the religious public is treated as sufficiently intimate to make the one subordinate to the other.
This intimate religious connection, the argument proceeds, flows from the historical, administrative and financial ties, however loose they may be, that have existed for over a century between the said two temples.
This argument may have some validity in a theological discussion or an ecclesiastical court, but cannot obviously be accepted in a civil court.
Krishnaswami Nayudu, J., sum marizes the facts in his judgment which, in his view, support the conclusion that the Emberumanar Jeer was virtually an office holder in the Athinathalwar temple.
As the correctness of the said facts is not questioned before us, it will be convenient to extract them in the words of the learned Judge: "In all Vaishnavite temples, the Alwars and the Acharyas take a prominent place in the religious ceremonies and observances of the temple.
An attempt was made to show that there has been an interlinking and interdependence of the ritual and ceremonies between these two temples, but, as rightly found by the learned Subordinate Judge, in the matter of routine and day to day worship and rituals such interlinking and interdependence have not been satisfactorily made out.
The rituals or the manner of performing divine service are uniform in every Vaishnavite temple.
But, as found by the learned Subordinate Judge, though a ritual in the main temple is not dependent upon the ritual in the sub shrine, the Emberumanar deity being an Acharya is intimately associated with the deity in the main temple in all the important festivals, the most important of which are the Margali and Vaikasi festivals and other religious ceremonies.
There are several Mandagapadis for the Athinatha Alwar in the Emberumanar temple.
There is Sethu Thirumanjam for the Athinatha Alwar and Embe rumanar deities on three occasions, two of them in the Emberumanar temple and one in the main 533 temple.
Then there is what is called Alwar Sayanam which has to take place on the 10th day of the Margali festival and which is performed in the main temple.
There are several other similar religious observances, where the two deities meet and certain rituals and religious ceremonies are gone through.
The daily ritual in a Vaishnavite temple is a routine matter and on occasions, for instance, in the months of Margali and Vaikasi and on other festival days, there is necessity for the Alwars and the Acharyas to meet the main deity and ceremonies suitable to the occasions are performed.
It is not possible to imagine a temple where God Vishnu is installed without the presence of the Alwars and Acharyas.
Alwars and Acharyas are devotees of God Vishnu who have received divine recognition in their lives and the festivals in relation to them depict incidents of such manifestation of divine grace to his devotees.
It may also be mentioned that the installation of each Emberumanar Jeer,, who it may be stated is a Sanyasi, is in the Athinatha Alwar temple under its Dwajasthamba, the flag staff, and the declaration of the status of the succeeding Jeer is made only ill the presence of the deity of the main temple.
" We may also add to the said facts that at one time the share of tasdik allowance to the Emberumanar temple was paid through the trustee of Athinathalwar temple and there was also an occasion when a trustee of the Emberumanar temple was dismissed by the trustee of the Athinathalwar temple.
On the other hand, both the temples are under different managements, they have their separate officeholders, distinct rituals, different budgets, and separate endowments; and in the year 1926 on an application filed by the Emberumanar Jeer, the Religious Endowments Board declared the temple as an excepted temple indicating thereby that the Emberumanar temple was a separate legal entity and that the said Jeer was its hereditary trustee.
only question, therefore, is whether the said facts enable a court to 68 534 hold that one temple is subordinate or part of the other temple, so that the office holders of one temple would become the office holders of the other.
The facts clearly establish that in fact and in law the two institutions are different legal entities.
In the past, the trustees of Athinathalwar temple might have disbursed tasdik allowances contributed by the Government to the various temples, including the Emberumanar temple, but it is well known that for convenience of administration the services of the trustees of a larger temple were very often utilized by the Government in that regard; it might have been that sometimes the amounts payable to the smaller temples were allowed to lapse, but there is nothing on the record to show that it was not out of negligence of the trustees of the minor shrines in not making any pressing demands on the trustees of Athinathalwar temple; it might also have been that the trustee of the bigger temple, in his supervisory capacity, dismissed once in a way the trustee of a smaller shrine in the locality, but that could be explained by the paramount position of the trustee of the bigger temple in the locality compared to that of the minor temples.
These and such acts may show that the trustee of the Athinathalwar temple had exercised similar supervisory control in the past over the minor temples; but that in itself does not make the trustee of the temple of Emberumanar an office holder in the bigger temple.
It is well known that in the past the temples were under the supervision of the Revenue Board and later on under various temple committees.
It cannot be suggested that on that account.
the trustees of the minor temples were officers in the Revenue Board or the temple committees, as the case may be.
We cannot also appreciate how the mutual visits of the idols to the other 's temple and the honours shown to the idols on such visits could have any bearing on the question to be decided, though they reflect the intimate relationship that exists between the Lord and his ardent devotee Ramanuja in the public consciousness.
But such cordial relationship existing between two independent temples cannot in the eye of law make the 535 one a part of the other.
Two independent institutions legally cannot, except in the manner known to law, be amalgamated into one institution by developing merely sentimental attachment between them.
This argument was rightly rejected by the learned District Judge, and the High Court went wrong in accepting it.
Before we close we must make it clear that by this judgment we have not in any way intended to express our view in the matter of honours that are customarily shown to one or other of the parties in these appeals in the temple of Athinathalwar.
In the result we hold, agreeing with the District Judge, that the suits were not maintainable in the civil court.
The appeals are, therefore, allowed with costs throughout.
Appeals allowed.
[/INST]The respondent as the aradanaikar and trustee of the Emberumanar temple, dedicated to Sri Ramanujacharya, which was one of the group of temples built around the main temple of Athinathalwar in the Tirunelveli District, brought the two suits, out of which present appeals arose, for declaration of his right to the first theertham and other honours and perquisites in precedence over all other worshippers in the temple of Athinathalwar and his case was that he was entitled to them by virtue of his office in the Emberumanar temple.
The matters came up to the High Court.
There was a remand order and the Subordinate Judge who tried the suits thereafter held that the Emberumanar temple was a sub shrine attached to the main temple and as such the plaintiff was virtually an office holder in the main temple and the precedence claimed by him was attached to that office as part of the remuneration and decreed the suits.
On appeal the District judge, on a review of the entire evidence, set aside the findings arrived at by the trial court and dismissed the suits as not maintainable.
The appeals to the High Court were heard by a single judge who, on a reconsideration of the evidence, reversed the findings of the District judge and affirmed those of the Subordinate judge and decreed the suits.
It was, further, held by the High Court that, as one of the theerthakars, the appellant could be considered to be the holder of the office of arulipad in the main temple.
Held, that although it was not permissible under section 9 of the Code of Civil Procedure for a civil Court to entertain a suit for a declaration of religious honours and privileges simpliciter, it could entertain a suit to establish one 's right to an office in a temple and to the honours and privileges attached to such office as its remuneration or perquisites.
But the essential condition for the existence of an office was that its holder must be under a legal obligation to discharge the duties attached to it and be liable to penalty on failure to do so.
So judged, there could neither be an independent office of theerthakar, for he had no obligatory duties to perform, nor that of an arulipad, since that word only connoted that the names of theerthakays were called out by the archaka in a particular order.
65 510 The question whether first theertham or any other honours shown to a person were merely as a mark of respect on the occasion of his visit to the temple, or were part of the remunera tion attached to his office, must in every case be decided on evidence and in the latter case such honours must be shown to have formed an integral part of the ritual to be performed by the recipient as the holder of the office.
Athan Sadagopachariar Swamigal vs Elayavalli Srinivasa chariar, , approved.
Striman Sadagopa vs Krishna Tatachariyar, (1863) 1 M.H.C.R. 301, Sri Rungachariar vs Rungasami Buttachar, (1909) I.L.R. and Vathiar Venkatachariar vs P. Ponappa Ayyangar, , referred to.
Sri Emberumanar jeer Swamigal vs The Board of Commissioners for Hindu Religious Endowments, Madras, (1936) 71 M.L.J. 588, considered.
Held, further, that it was well settled that the High Court bad no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error might seem to be.
In the instant case, the High Court was clearly in error in reversing the finding of the District judge, which was one of fact, that the Emberumanar temple was neither subordinate to, nore part of the Athinathalwar temple and no office holder of the former could, therefore, become an office holder of the latter.
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<s>[INST] Summarize the judgementos. 621, 655 and 678 of 1955.
Under Article 32 of the Constitution for the en forcement of fundamental rights.
N.C. Chatterjee (section K. Kapur and Ganpat Rai, with him) for the petitioners.
533 M. C. Setalvad, Attorney General for India (Kan Singh and P. G. Gokhale, with him) for respondent No. 1.
K.R. Chowdhury, for Goma, Ghisa and Rama, respondents in Petition No. 655 and Dhira, respondent in petition No.678.
September 27.
The judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are applications under article 32 of the Constitution by certain jagir dars of Marwar, challenging the constitutionality of sections 81 to 86 of the Marwar Land Revenue Act No. XL of 1949 (hereinafter referred to as the Act) on the ground that they infringe the fundamental rights of the petitioners under article 14, article 19(1) (f) and article 31(2) of the Constitution.
These sections provide for fixing fair and equitable rent payable by the tenants and prescribe the procedure to be followed therefor.
Section 81 of the Act provides that when any local area has been brought under settlement operations by a notification under section 64, the Settlement Officer or an Assistant Settlement Officer shall inspect every village in the local area, divide it into soil classes and assessment circles, select rentrates for the area and publish them in such manner as may be prescribed.
If objections to these proposals are received, he has to consider them, and submit his report to the Board of Revenue.
The Board has the power to sanction the proposals with or without any modifications, and it has also the power to direct further enquiry into the matters.
With a view to arriving at fair and equitable rates, the Settlement Officer is required under section 82 to have regard to the collection of rent and cesses in the nature of rent during the ten years preceding the settlement excluding such years as the Government may, by notification in the Official Gazette, declare to be abnormal the average of the prices of agricultural produce during the same period, the nature of the crops grown and the quantity of the produce and their value.
Section 82(2) provides that the rent rates shall not 534 exceed one third of, the value of the produce of unirrigated lands and one fourth of the value of the produce of irrigated lands.
Under section 84, the Settlement Officer shall determine rents whether by way of abatement, enhancement or commutation payable for all holdings in the occupation of tenants on the basis of the rates sanctioned by the Board of Revenue.
Section 86 enacts that any rent fixed by order of the Settlement Officer shall be payable from the first day of July next following the date of such order, "unless the Settlement Officer thinks fit for any reasons to direct that it shall be payable from some earlier date".
Acting under section 81 of the Act, the Settlement Officer formulated certain proposals with reference to the rent rates in the villages comprised in the jagirs of the petitioners, and they were published in the Gazette on 12th December 1953.
Objections to those rates were filed by the petitioners on the 12th January, 1954.
On 13th October 1954 the Additional Settlement Commissioner submitted his final proposals to the Settlement Officer, who forwarded the same to the Board of Revenue for sanction.
After making further enquiry, the Board passed an order on 4 12 1954 determining the rent rates payable.
Subsequent to this, an order was also passed under section 86 of the Act bringing the sanctioned rate into operation from 1 7 1954.
This order is not itself the subject of attack in these proceedings, and it cannot be, seeing that Petition No. 621 of 1954 was filed on 24th November 1954 before that order was passed, and Petitions Nos. 655 and 678 of 1954 merely repeat verbatim the allegations in Petition No. 621 of 1954.
Before us, the petitioners conceded that they were not impugning the correctness of the order passed under section 86 in so far as it gave operation to the rates of rent from 1st July, on its merits, but that they were attacking the section as bad only as a step in establishing that the scheme of the Act, of which section 86 is an integral part is, taken as a whole, an infringement of their fundamental rights under articles 14, 19 and 31(2).
We have now to consider 535 whether sections 81 to 86 of the Act are bad as infringing the above provisions of the Constitution.
The contention that sections 81 to 86 of the Act are void as being repugnant to article 14 is sought to be made out on two grounds.
It is stated firstly that the Act applies ' only to what was prior to its merger the State of Marwar, that the present State of Rajasthan comprises Marwar and 17 other States which have merged in it, and that as the Act, as it stands, is directed against the jagirdars in one area of the State and not the whole of it, it has become discriminatory and void.
This contention is clearly untenable.
What article 14 prohibits is the unequal treatment of persons similarly situated, and therefore before the petitioners can claim the protection of that article, it is incumbent on them to establish that the conditions which prevail in other areas in the State of Rajasthan are similar to those which obtain in Marwar.
But of this, there has been neither allegation nor proof.
On the contrary, it is stated by the respondents in para 10 of their statement that the tenants in the jagirs of Marwar were paying much more by way of rent and cesses than those in the Khalsa area of the State, that with a view to remove the inequality between the two classes of tenants within the State, a law was passed in 1943 providing for settlement of rent, and that again on 10 1 1947 another law was passed abolishing all cesses (lags) and fixing the maximum share of rent payable in kind.
These special features, it is argued, form sufficient justification for a separate legislation for this area, It is also stated that the other States had their own rent laws suited to their conditions.
There are no materials on which we could hold that the impugned Act is discriminatory in character, and we cannot strike it down merely on the ground that it does not apply to the whole of the State of Rajasthan.
A similar question arose for decision in Bowman vs Lewis(1).
There, some of the areas in the State of Missouri were governed by a judicial procedure diff (1) ; 68 536 erent from that which prevailed in others.
Repelling the contention that this differentiation offended the equal protection clauses of the Fourteenth Amendment, the Court observed: "Each State has the right to make political subdivisions, of its territory for municipal purposes, and to regulate their local government.
As respects the administration of justice, it may establish one system of courts for cities and another for rural districts; one system for one portion of its territory and another system for another portion.
Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right If a Mexican State should be acquired by a treaty and added to an adjoining State or part of a State in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion and the common law and its corresponding judicature in the other portion.
Such an arrangement would not be prohibited in any fair construction of the Fourteenth Amend ment.
It would not be based on any respect of persons or classes, but on municipal considerations alone and a regard to the welfare of all classes within the particular territory or jurisdiction".
This Court has also repeatedly held that classification might properly be made on territorial basis if that was germane to the purposes of the enactment.
Having regard to the fact that the conditions of tenants vary from locality to locality, we have no hesitation in holding that a tenancy legislation restricted to a portion of a State cannot be held on this ground alone to contravene article 14.
The second ground urged in support of the contention that article 14 has been infringed is that discrimination must result from the settlement of rent being taken up only with reference to portions of the 537 area to which the Act applies and not to the whole of it, because the rent rate is to be fixed on the basis of the average of the ten years preceding the settlement; and if the proceedings are started for different areas on different dates, that might result in different rates being fixed, and that would make for inequality such as is prohibited by article 14.
We are unable to agree with this,.contention.
Settlement operations can be conducted only by a specialised staff having technical knowledge and administrative experience, and it might be beyond the capacity of the State to undertake them for the whole area at one and the same time.
To accede to the contention of the petitioners would, in effect, be to prevent the States from carrying on settlement operations.
It was held by this Court in Biswambhar Singh vs The State of Orissa and other8(1) and in Thakur Amar Singhji vs State of Rajasthan(2) that a provision authorising the taking over of estates on different dates was not repugnant to article 14, and the principle of those decisions would apply to the present case as well.
The contention that the impugned provisions are in contravention of article 14 must, therefore, be rejected.
It is then contended that the provisions in question are repugnant to article 19(1) (f) of the Constitution, because they deprive landlords of their right to realise rents from the tenants freely and without hindrance, and are an encroahment on their right to hold property.
The provision in section 82 that the Settlement Officer should, in determining the average collection for the previous ten years,exclude from consideration abnormal years as notified by the Government was particularly attacked as a. device to reduce the rent payable to the landlord and an invasion of his rights to the property.
We are unable to agree with this contention.
The fundamental right which a citizen has to hold and enjoy property imports only a right to recover reasonable rent when the lands are cultivated by a tenant, and therefore a legislation whose object is to fix fair and equitable (1) ; , 845.
(2) ; , 538 rent cannot be said to invade that right.
The contention that the provision in section 82(1) (a) that abnormal years as notified in the Gazette should be excluded in determining average collections is calculated to reduce the rent, and is therefore unreasonable is unfounded, because a declaration that a year is abnormal is made not only when there are bumper crops but also when the yield is very low, and the provision is intended equally for the benefit of the tenant and of the landlord.
A provision of this kind is usual in all tenancy legislation, and there is nothing unreasonable or unfair about it.
It was next contended and this was the contention most pressed on us that section 86 is bad as it confers on the Settlement Officer a power to bring the rent rates into operation from a date earlier than ' the succeeding year and even retrospectively from a date prior to the settlement, and that such a power was repugnant to both article 19(1)(f) and article 31(2).
The argument with reference to Article 19(1)(f) is that section 86 is an encroachment on the rights of a person to hold property, and can be valid only if it falls within article 19(5), that it is only a law of 'a regulatory character that is protected by article 19 (5), that there could be regulation only with reference to rights to be exercised in future,.
and that a law giving retrospective operation is consequently outside article 19(5).
This contention rests on an assumption for which there is no basis.
The question whether a law is valid under.
Article 19 (5) can arise only when there is a violation of the fundamental right declared in article 19 (1) (f), and if the right to hold property imports, as we have held it does, only a fight to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation.
If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the future and that is conceded it cannot be an encroachment as regards 539 the past.
A consideration, therefore, of the question whether a law under article 19(5) should be regulatory ' and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controversy.
The argument in support of the contention that section 86 is repugnant to article 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation.
But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within article 31(2), even though it has the effect of reducing his rights.
In Thakur Jagannath Baksh Singh vs United Provinces(1), the question arose for decision whether the provisions of Act XVII of 1939, United Provinces, under which the rent payable to a landlord became diminished were obnoxious to section 299(2) of the Government of India Act, 1935.
It was held by the Federal Court that they were not, and in affirming this decision on appeal, the Privy Council in Thakur Jagannath Baksh Singh vs United Provinces(2) observed: "The appellant relies on certain express provisions of the Government of India Act.
Thus he relies on section 299 of the Act, which provides that no person, shall be deprived of his property in British India save by authority of law, and that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition of 'land for public purposes save on the basis of providing for the payment of compensation.
But in the present case there is no question of confiscatory legislation.
To regulate the relations of landlord and tenant and thereby diminish rights, hitherto exercised by the landlord in connection with his land, is different from compulsory acquisition of the land".
It was finally urged that section 86 in so far as it (1) [1948] 6 F.L. J. 55; A.I.R. 1948 F.C. 29.
(2) [1946] L.R. 73 I.A. 123.
540 conferred authority on the Settlement Officer to give retrospective operation to the rent rates was bad, because the exercise of that authority was left to his arbitrary and uncontrolled discretion, that the Act laid down no rules and prescribed no conditions under which the discretion had to be exercised, and that the power conferred in those terms must be held to be unconstitutional.
The decision in Thakur Raghubir Singh vs Court of Wards, Ajmer and another(1) was relied on, in support of this contention.
There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a. tenant".
Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner., and that was final and not liable to be questioned in civil courts.
It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under article 19(1)(f), and that it was not saved by article 19(5).
But, in the present case, section 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons.
There is no force in the contention that section 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority.
Discretion which is wide is not necessarily arbitrary.
It was said that under section 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under section 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement.
We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, (1) ; 541 and that it invades no fundamental rights of the landlord.
For the reasons given above, we must hold that the scheme embodied in sections 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid.
In the result, the petitions are dismissed but in the circumstances, without costs.
[/INST]The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court.
According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion con sistent with the innocence of the accused.
The appellant was convicted under section 302 of the Indian Penal Code and sentenced to transportation for life.
There were no eyewitnesses to the murder and the conviction of the appellant rested solely on the circumstantial evidence which was relied on by the courts below.
The various facts which formed the links in the chain of circumstantial evidence in the present case taken together advanced the case against the appellant very much beyond suspicion and reasonably and definitely pointed to the appellant as the person who committed the murder.
In a case like the present when the various links in the chain had been satisfactorily made out and the circumstances pointed to the appellant as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation, and be offered no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completed the chain.
Hanumant vs The State of Madhya Pradesh ([1952] S.C.R. 1091), referred to.
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<s>[INST] Summarize the judgementminal Appeal No. 128 of 1955.
Appeal from the judgment and order dated February 8, 1955, of the Allahabad High Court in Government Appeal No. 165 of 1954, arising out of the judgment and order dated July 24, 1953, of the Court of the Civil and Sessions Judge at Gorakhpur in Sessions Trial No. 5 of 1953.
G. C. Mathur and C. P. Lal, for the appellant.
section N. Andley, for the respondents.
February 14.
The following Judgment of the Court was delivered by DAS C. J.
The respondents before us were put up for trial for offences under sections 147, 302, 325 and 326, Indian Penal Code read with section 149 of the same Code.
On July 24, 1953, the temporary Civil Sessions Judge, Gorakhpur, acquitted them, The State of Uttar Pra 162 1276 desh apparently felt aggrieved by this acquittal and intended to appeal to the High Court under section 417 of the Code of Criminal Procedure.
Under article 157 of the Indian Limitation Act an appeal under the Code of Criminal Procedure from an order of acquittal is required to be filed within six months from the date of the order appealed from.
The period of limitation for appealing from the order of acquittal passed by the Sessions Judge on July 24,1953, therefore, expired on January 24, 1954.
That day being a Sunday the Deputy Government Advocate on January 25, 1954, filed a. petition of appeal on behalf of that State.
A plain copy of the judgment sought to be appealed from was filed with that petition.
The High Court office immediately made a note that the copy of the judgment filed along with the petition of appeal did not appear to be a certified copy.
After the judicial records of the case had been received by the High Court, an application for a certified copy of the judgment of the trial court was made on behalf of the State on February 12, 1954.
The certified copy was received by the Deputy Government Advocate on February 23,1954 and he presented it before the High Court (in February 25, 1954, when Harish Chandra J. made an order that the certified copy be accepted and that three days ' further time be granted to the appellant for making an application under section 5 of the Indian Limitation Act for condoning the delay in the filing of the certified copy.
Accordingly an application for the condonation of delay was made by the appellant on the same day and that application was directed to be laid before a Division Bench for necessary orders.
The application came up for hearing before a Division Bench consisting of M. C. Desai and N. U. Beg JJ.
Ai the hearing of that application learned counsel appearing for the appellant urged that as there was, in the circumstances of this case, sufficient cause for not filing the certified copy along with the petition of appeal the delay should be condoned and that, in any event, the filing of the plain copy of the judgment of the trial court along with the petition of appeal constituted a sufficient compliance with the requirements 1277 of section 419 of the Code of Criminal Procedure.
By their judgment delivered on December 7, 1954, both the learned Judges took the view that no case had been made out for extending the period of limitation under section 5 of the Indian Limitation Act and dismissed the application and nothing further need be said on that point.
The learned judges, however, differed on the question as to whether the filing of a plain copy of the judgment appealed from was a sufficient compliance with the law, M. C. Desai J. holding that it was and N. U. Beg J. taking the contrary view.
The two Judges having differed they directed the case to be laid before the Chief Justice for obtaining a third Judge 's opinion on that question.
Raghubar Dayal J. to whom the matter was referred, by his judgment dated January 31, 1955, expressed the opinion that the word " copy " in section 419 meant a certified copy, and directed his opinion to be laid before the Division Bench.
In view of the opinion of the third Judge, the Division Bench held that the memorandum of appeal had not been accompanied by " a copy " within the meaning of section 419 and that on February 25, 1954, when a certified copy came to be filed the period of limitation for appealing against the order of acquittal passed on July 24, 1953, had already expired and that as the application for extension of the period of limitation had been dismissed the appeal was time barred and they accordingly dismissed the appeal.
The learned Judges, however, by the same order gave the appellant a certificate that the case was a fit one for appeal to this Court.
Hence this appeal.
Section 419 of the Code of Criminal Procedure, under which the appeal was filed, provides as follows: " 419.
Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under section 367.
1278 The sole question raised in this appeal is whether this section requires a petition of appeal to be accompanied by a certified copy of the judgment or order appealed from.
It will be noticed that the section requires " a copy " of the judgment to be filed along with the petition of appeal.
There can be no doubt that the ordinary dictionary meaning of the word " copy " is a reproduction or transcription of an original writing.
As the section does not, in terms, require a certified copy, it is urged on behalf of the appellant that the word " copy " with reference to a document has only one ordinary meaning namely: a transcript or reproduction of the original document and that there being nothing uncertain or ambiguous about the word " copy ", no question of construction or interpretation of the section can at all arise.
It is contended that it is the duty of the court to apply its aforesaid ordinary and grammatical meaning to the word " copy " appearing in section 419 and that it should be held that the filing of a plain copy of the judgment along with the petition of appeal was a sufficient compliance with the requirements of that section.
The matter, however, does not appear to us to be quite so simple.
A " copy " may be a plain copy, i. e., an un official copy, or a certified copy, i. e., an official copy.
If a certified copy of the judgment is annexed to the petition of appeal nobody can say that the requirements of section 419 have not been complied with, for a certified copy is none the less a " copy ".
That being the position a question of construction does arise as to whether the word " copy " used in section 419 refers to a plain copy or to a certified copy or covers both varieties of copy.
It is well settled that " the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they beat harmonise with the subject of the enactment and the object which the Legislature has in view.
Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. " (Maxwell 's Interpretation of Statutes, 10th Edition, 1279 page 52).
In order, therefore, to come to a decision as to the true meaning of a word used in a Statute one has to enquire as to the subject matter of the enactment and the object which the Legislature had in view.
This leads us to a consideration of some of the relevant sections of the Code of Criminal Procedure and other enactments having a material bearing on the question before us.
Section 366 of the Code of Criminal Procedure, which is in Chapter XXVI headed "Of the Judgment ", requires that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court and in the language of the court.
Section 367 requires every such judgment to be written by the presiding officer (or from his dictationtion ) in the language of the court or in English, containing the point or points for determination, the decision thereon and the reasons for the decision.
The judgement has to be dated land signed by the presiding officer in open court.
Except as otherwise provided by law, section 369 forbids the court, after it has signed its judgment, from altering or reviewing the same except to correct mere clerical errors.
After the judgment is pronounced and signed it has, under section 372, to be filed with the record of proceedings and becomes a part of the record and remains in the custody of the officer who is in charge of the records.
Under section 371, when an accused is sentenced to death and an appeal lies from such judgment as of right, the court is to inform him of the period within which he may, if he so wishes, prefer his appeal and when he is sentenced to imprisonment a copy of the findings and sentence must as soon as may be after the delivery of the judgment be given to him free of cost without any application.
This, however, is without prejudice to his right to obtain free of cost on an application made by him, a " copy " of the judgment or order and in trials by jury a " copy " of the heads of charge to the jury.
The copy that is supplied to the accused under sub section
(4) of section 371 is not a full copy of the entire judgment, but the copies supplied to him under sub sections (1) and (2) of section 371 on application made by 1280 him are full copies of the judgment or the heads of the charge to the jury as the case may be.
The copy of the findings ' and the sentence which is supplied to the accused under sub section
(4) without his asking for the same is presumably to enable him to decide for himself whether he would appeal against his conviction and the sentence.
The copies, which are supplied to the accused under sub sections
(1) and (2) on his application for such copies, are obviously full copies of the entire judgment or the heads of charges as the case may be and are intended to enable him to prepare his grounds of appeal should he decide to prefer one and to file the same along with his petition of appeal as required by section 419 of the Code of Criminal Procedure.
There are no provisions corresponding to section 371 for giving any copy of the judgment to the State or the public prosecutor representing the State in case of an act uittal.
If, therefore, the State desires to file an appeal against acquittal under section 417 of the Code of Criminal Procedure the State will have to procure a copy of the judgment or the heads of charge in order to enable it to file the same along with its petition of appeal and thereby to comply with the requirements of section 419.
According to section 74 of the Indian Evidence Act a judgment, being the Act or record of the act of a judicial officer, would be included in the category of public documents.
Under section 548 of the Code of Criminal Procedure if a person affected by a judgment desires to have a copy of the judge 's charge to the jury or of any order or deposition or other part of the record he has the right, on applying for such copy, to be furnished therewith.
A person desirous of such a copy has to apply for it to the public officer having the custody of it and, under section 76 of the Indian Evidence Act, such public officer is bound to.
give that person, on demand, a copy of it on payment of the legal fees thereof together with a certificate written at the foot of such copy that it is a true copy of such document, that is to say, to supply to the applicant what is known as a certified copy.
Therefore, whether it is the accused person who applies for a copy under section 371 , 1281 sub sections
(1) and (2) or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy.
Then when section 419 requires that a copy of the judgment or of the heads of charge be filed along with the petition of appeal, it is not unreasonable to hold that it is the certified copy so obtained that must be filed.
Under articles 154, 155 and 157 of the Indian Limitation Act the petition of appeal has to be filed within the time specified in those articles.
Obviously it may take a little time to apply for and procure a certified copy.
In order that the full period of limitation be available to the intending appellant section 12 of the Limitation Act permits the deduction of the time requisite for obtaining the copy of the judgment or the heads of charge in ascertaining whether the appeal is filed within time.
A certified copy of the judgment will on the face of it show when the copy was applied for, when it was ready for delivery and when it was actually delivered and the court may at a glance ascertain what time was requisite for obtaining the copy so as to deduct the same from the computation of the period of limitation.
Taking all relevant facts into consideration, namely, that a St copy " of the judgment has to be filed along with the petition of appeal, that the copies of the judgment which the accused gets free of cost under section 371 (1) and (2) read with section 76 of the Indian Evidence Act and which the State can obtain on an application made by it under section 76 of the last mentioned Act can only be certified copies, that the time requisite for obtaining such copies is to be excluded from the computation of the period of limitation all quite clearly indicate that the copy to be filed with the petition of appeal must be a certified copy.
Section 419 requires a copy of the judgment or order appealed against to be filed not without some purpose.
That purpose becomes clear when we pass on to section 421 of the Code of Criminal Procedure.
That section enjoins the court, on receiving the petition of appeal and copy of the judgment or order appealed from under section 419, to peruse the same and after 1282 perusing the same to do one of the two things, namely, if it finds that there is no sufficient ground for interfering, to dismiss the appeal summarily or when the court does not dismiss the appeal summarily, then under section 422 to cause notice to be given to the appellant or his pleader and to such officer as the Provincial Cxovernment may appoint in this behalf, of the time and place at which such appeal will be heard and furnish such officer with a copy of the grounds of appeal and in a case of appeal under section 417, as in the present case, to cause a like notice to be given to the accused.
The act of summarily rejecting the appeal or admitting it and issuing notice is necessarily a judicial act and obviously it must be founded on proper materials.
The authenticity or correctness of the copy of a judgment is also essential in order to enable the appellate court to make interlocutory orders which may have serious consequences.
In the case of an appeal by the accused he may ask for the stay of the execution of the order, e.g., of the realisation of the fine or he may move the court for bail.
Likewise in the case of an appeal by the State, the State may ask for the accused to be apprehended and brought before the court under warrant of arrest.
Orders made on these applications are all judicial acts and accordingly it is essential that the appellate court in order to take these judicial decisions have proper materials before it.
Therefore, it is of the utmost importance that the copy to be filed with the petition of appeal is a full and correct copy of the judgment or order appealed against.
Under section 76 of the Indian Evidence Act the public officer who is to supply a copy is required to append a certificate in writing at the foot of such copy that it is a true copy and then to put, the date and to subscribe the same with his name and official title.
Therefore, the production of a certified copy ipso facto and without anything more will show ex facie that it is a correct copy on which the appellate court may safely act.
The fact that the appellate court is by law enjoined to peruse the copy of the judgment and take judicial decision on it indicates that it must have before it a correct copy of the judgment 1283 and this further indicates that the copy required to be filed with the petition of appeal under section 419 should be a certified copy which will ipso facto assure the appellate court of its correctness.
It is said that the appellate court may not summarily reject or admit the appeal or make an inter ' locutory order until the record is produced or until a certified copy of the judgment or order is presented before it.
There is no doubt that the court can under section 421 of the Code of Criminal Procedure call for the record of the case, but the court is not bound to do so.
The calling for the records in every case or keeping the proceedings in abeyance until a certified copy is presented before the court is bound to involve delay and there is no apparent reason why there should be any delay in disposing of criminal matters involving the personal liberty of the convicted accused.
All this inconvenience may easily be obviated if section 419 be read and understood to require a certified copy to be filed along with the petition of appeal.
Learned counsel for the appellant urges that in case of urgency the court need not wait until the record or the certified copy is received, but may call upon the appellant to adduce evidence to prove the correctness of the judgment in order to induce the court to act upon it and take a judicial decision thereon.
In the first place there is no such procedure envisaged in the Code of Criminal Procedure.
In the next place adoption of such a procedure may cause much delay and in the third place no question ordinarily arises under section 419 of proving the correctness of the judgment under appeal in the way in which a document is to be proved in order to tender it in evidence in the case.
But assuming that the correctness of the judgment under appeal is to be established then as soon as the appellant is out to " prove" by oral evidence of witnesses the contents of the original judgment so as to establish the correctness of the plain copy filed along with his petition of appeal the question will immediately arise whether such evidence is admissible under the law.
As already stated section 367 of the Code of Criminal Procedure requires the judgment to be 163 1284 reduced to writing.
Section 91 of the Indian Evidence Act provides, inter alia, that in all cases in which any matter is required by law to be reduced to the form of a document and a judgment is so required,,no evidence shall be given for the proof of the terms of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the earlier provisions of that Act.
In the absence of the production of, the original judgment if a witness is put into a witness box and is asked to say whether the copy produced before the appellate court is a correct copy of the original judgment filed of record in the trial court he will necessarily have to say that he read the original judgment and from his memory he can say that the copy correctly reproduces the text of the original judgment.
This means that he will give secondary evidence as to the contents of the original judgment which under the law is required to be reduced to the form of a document.
A further question will, therefore, arise if such evidence, which at best is secondary evidence, is admissible under the Indian Evidence Act.
As already stated the judgment, which under section 367 of the Code of Criminal Procedure has to be in writing and under section 372 has to be filed with the record of the proceedings, becomes, under section 74 of the Indian Evidence Act, a public document. ' As the original judgment is a public document within the meaning of section 74, only a certified copy of such document and no other kind of secondary evidence is admissible under section 65.
This circumstance also indicates that the word " copy " in section 419 means, in the context, a certified copy and so it was held in Ram Lat vs Ghanasham Das (1).
The decision in Firm Chhota LalAmba Parshad vs Firm Basdeo Mal Hira Lal (2), proceeded on its peculiar facts, namely , that no certified copy could be obtained as the original judgment could not be traced in the record and the decision can be supported on the ground that the court had, in the circumstances, dispensed with the production of a certified copy.
(i) A.I.R. (1923)Lab.
(2) A.I.R. (1926) Lah.
1285 Learned counsel for the appellant next urges that the fact that the appellate court to which the petition of appeal is presented is given power to dispense with the filing of a copy of the judgment appealed against indicates that the Legislature did not consider the c. filing of the copy to be essential and that if the filing of the copy is not essential and copy can be wholly dispensed with, a plain copy should be sufficient for the purpose of section 419.
This power of dispensation had to be given to the court for very good reasons.
In certain cases an order staying the operation of the order sought to be appealed from may be immediately necessary and the matter may be so urgent that it cannot brook the delay which will inevitably occur if a certified copy of the judgment or order has to be obtained.
In some cases it may be that a certified copy of the same judgment is already before the same court in an analogous or connected appeal and the filing of another certified copy of that very judgment may be an unnecessary formality.
The circumstance that the court may, in urgent cases, dispense with the filing of a copy does not imply that in a case where the court does not think fit to do so it should be content with a plain copy of the document which ex facie contains no guarantee as to its correctness.
Reference has been made to a number of sections of the Code of Criminal Procedure where the word " copy " has been used and to sections 425, 428, 442 and 511 which, it is said, talk about certified copy and on this circumstance is founded the argument that where the Legislature insists on the production of a certified copy it says so expressly and that as the word "copy" used in section 419 is not qualified by the word " certified " the inference is irresistible that the filing of a plain copy was intended to be sufficient for the purpose of that section.
Turning to the four last mentioned sections, it will be noticed that the first three sections 425, 428 and 442 do not really refer to any certified copy of any document at all.
Section 425 requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it shall certify its judgment or order to the court by which the finding, sentence or 1286 order appealed against was recorded or passed.
It really means that the High Court is to formally communicate its decision on the appeal to the court against whose decision the appeal had been taken.
Likewise section 428 requires the court taking additional evidence to certify such evidence to the appellate court.
Section 442 requires the High Court to certify its decision on revision to the court by which the finding, sentence or order revised was recorded or passed.
Lastly section 511 lays down the mode of proof of a previous conviction or acquittal, namely, by the production of an extract certified under the hand of the officer having the custody of the records of the court to be a copy of the sentence or order.
Therefore, the four sections relied on do not in reality refer to certified copy of a judgment or order supplied to a party on his application for such copy and consosuently no argument such as has been sought to be raised is maintainable.
The question whether a copy in a particular section means a plain copy or a certified copy must depend on the subject or context in which the word " copy " is used in such section.
In many sections relied on, the " copy " is intended to serve only as a notice to the person concerned or the public and is not intended to be acted upon by a court for the purpose of making a judicial order thereon.
We think that N. U. Beg J. rightly pointed out that the object and purpose of such sections are distinguishable from those of section 419 where the copy is intended to be acted upon by the appellate court for the purpose of founding its judicial decision on it.
We do not consider it desirable on the present occasion to express any opinion as to whether any of those sections relied on requires a plain copy or a certified copy.
It will suffice for us to hold that so far as section 419 is concerned, having regard to the context and the purpose of that section, the copy to be filed along with the petition of appeal must be a certified copy.
We have also been referred to several sections of the Code of Civil Procedure where the word " copy " is used.
We do not consider it right to enter upon a 1287 discussion as to the true interpretation of the word " copy" occurring in any of those sections for we think that each section in each Act must, for its true meaning and effect, depend on its own language, context and setting.
In the result, for reasons stated above, we agree that the order passed by the Allahabad High Court on February 8, 1955 was correct and this appeal should be dismissed.
Appeal dismissed.
[/INST]% A complaint filed in the court of the Chief Metropolitan Magistrate by the appellant, Chief Controller of Imports and Exports, against respondents Nos. 1 and 2, a private limited company and its Managing Director for the alleged commission of an offence under section 5 of the Imports and Exports (Control) Act, 1947 was subsequently transferred to another court and cognizance of the offence alleged was taken without examining the appellant as proviso (a) of section 200 of the Code of Criminal Procedure was applicable to this complaint.
An application filed by the accused persons for recall of summons and dismissal of complaint was dismissed by the trial Magistrate.
An appeal against the aforesaid order was dismissed by the High Court.
A special leave application filed against the High Court 's order was dismissed by the Supreme Court.
An application made at the trial stage for the discharge of respondent No. 2, the Managing Director on the plea that there was no allegation of any criminal misconduct against him and the Company respondent No. 1 was prepared to admit its guilt and may be appropriately penalised, was dismissed by the trial court.
On appeal, the High Court quashed the process issued against respondent No. 2 on the ground that the order of issuance of process 297 was clearly as a result of non application of mind by the trial Judge because when the process was issued against the petitioners, the Department and the State had merely filed a complaint case along with list of witnesses and documents, and none of the statements of witnesses or copies of documents was produced before the trial Judge, and that respondent No. 2 could not be prosecuted under section 5 of the Act, as the prosecution intended to charge him as principal offender alongwith respondent No. 1 the Company and there were no allegations in the complaint that respondent No. 2 either aided or abetted in the contravention of the licence conditions by respondent No. 1 Company.
Allowing the Department 's appeal, ^ HELD: 1.1 The High Court had not cared to look into procedural law applicable to the factual situation before it.
If a reference had been made to section 200, Proviso (a) of Code of Criminal Procedure, the proceedings against respondent No. 2 could not have been quashed.
[299G H] 1.2 Records of investigation are not evidence in the instant case, and a complaint could not be quashed by referring to the investigation records, particularly when the petition of the complainant did allege facts which prima facie show commission of an offence.
[300B] The High Court overlooked the fact that similar objections raised earlier were rejected by the same High Court, and this decision was upheld by the Supreme Court, and drew a distinction between the two situations, by saying that records of investigation were not available on the earlier occasion.
[300A B] 1.3 The licensee was a company and a company by itself could not act, and has to act through someone.
Since there was clear allegation that the Managing Director had committed the offence, acting on behalf of the licensee, there was no justification for quashing the proceedings against respondent No. 2.
[300C] Order of the High Court is vacated.
However, since the offence was committed 20 years back, it would not be in the interest of justice to allow a prosecution to start and the trial to be proceeded with at this belated stage even though respondent No. 2 has no equity in his favour and the delay has been mostly on account of his mala fide move.
Hence the case against respondent No. 2 is directed to be closed forthwith.
[300E,G]
</s>
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<s>[INST] Summarize the judgementN: Criminal Appeal Nos.
373 374 of 1978.
Appeals by Special Leave from the Judgment and Orders dated 10 1 1978 and 14 9 1978 of the Delhi High Court in Criminal Misc.
(M) No. 323 and 322/77 and Criminal Misc.
1083, 1149 of 1978 in Special Misc.
(M) No. 322/77.
Ram Jethmalani (In Crl. A.373), A. K. Sen (In Crl. A.374) and Harjinder Singh for the Appellants.
U. R. Lalit and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On the intervening night of 31st March 1967 and Ist April 1967, two sandstone pillars of great antiquity, beauty and value were stolen from Suraj Kund temple, in Village Amin (District Karnal, Haryana).
They were of the Sunga period (2nd Century B.C.) and their present estimated value in the International Art Treasures ' Market is said to be around five hundred thousand American dollars.
A first information report (F.I.R. No. 72 of 1967) was registered by the Police of Butana, District Karnal.
The pillars were recovered on 2nd May 1967.
On completion of investigation a charge sheet was filed on 3rd October 1967 in the Court of the Ilaqa Magistrate at Karnal, against one Bali Ram Sharma and two others.
3 119 SCI/79 928 The case ended in their acquittal on 16th July 1968.
During the pendency of the case one Narinder Nath Malik (N. N. Malik) filed an application before the Magistrate alleging that he was a research scholar and requesting that he might be given custody of the two pillars to enable him to make a detailed study.
At the instance of H. L. Mehra, the then Chief Judicial Magistrate, Karnal and a friend of N. N. Malik, the learned Ilaqa Magistrate gave custody of the two pillars to N. N. Malik on his executing a personal bond in a sum of Rs. 20,000/ .
The order was written by H. L. Mehra himself and signed by the Ilaqa Magistrate.
The pillars remained in the custody of N. N. Malik from Ist March 1968 to 27th May 1968, when N. N. Malik purported to return them to the Court of the Ilaqa Magistrate, Karnal.
After the acquittal of Bali Ram Sharma and others, the pillars were handed over to the Lambardar of village Amin.
Later, it came to light that the pillars returned by N. N. Malik were not the original pillars but fakes.
Thereupon, First Information Report No. RC.2/71 CIA/SPE/CBI was registered at Delhi against N. N. Malik and H. L. Mehra under Section 120 B read with Sections 406 and 420 Indian Penal Code.
After completing the investigation the C.B.I. filed a charge sheet No. R.C. 2 of 1971 in the Court of Special Magistrate, Ambala, against N. N. Malik and H. L. Mehra for alleged offences under Section 120 B read with Sections 406 and 420 Indian Penal Code.
The charge sheet was filed on 30th December, 1972.
On 17th May, 1976, the learned Special Magistrate, Ambala, passed an order directing the framing of charges against N. N. Malik and H. L. Mehra.
But, no charges were actually framed as the accused were not present in the Court.
On 17th April, 1977, the Public Prosecutor filed an application under Section 494 Criminal Procedure Code for permission to withdraw the case against Malik and Mehra.
The learned Special Magistrate, Ambala, by his order dated 16th May 1977, permitted the withdrawal of the case and discharged the accused.
Between May 1976 and May 1977 several other things happened and the Narang brothers, the appellants in the two appeals, made their appearance on the scene.
It may be mentioned here, that of the three Narang brothers, Om Prakash alias Omi Narang had been living in London since 1970, Manohar Lal alias Manu Narang had been similarly living in London since July 1974 and Ram Lal Narang alone had been living in India.
Ram Lal Narang was detained first under the MISA from September 1974 till he was released under orders of the High Court, and later, under the COFEPOSA from 1st July 1975 till after the revocation of the internal Emergency in March 1977.
929 The two genuine pillars which had been removed from Suraj Kund temple were traced and found in London in the warehouse of Messrs Spink & Co. It was suspected that Manoharlal Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubhai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London.
A First Information Report (R.C. 4/76 CIU(A)/SPE) was registered by the Superintendent of Police, CIU (Antiquities, SPE/CBI, New Delhi) against Manohar Lal Narang and others, for alleged offences under Section 120 B Indian Penal Code read with Section 411 Indian Penal Code and Section 25(1) of the , On 26th June, 1976, N. N. Malik made and application before the Chief Metropolitan Magistrate, Delhi, in case R.C. No. 4/76 CIU(A)/SPE, New Delhi, purporting to be under Section 306 of the Code of Criminal Procedure, 1973, praying that he might be granted pardon.
The application mentioned Sections 411, 406 and 420 Indian Penal Code read with Section 120 B and Section 25(1) of the , as the offences involved.
The application was supported by the reply filed by the Superintendent of Police, C.B.I. On 3rd July 1976, the Chief Metropolitan Magistrate, Delhi, granted pardon to N. N. Malik.
Before the grant of pardon the confessional statement of N. N. Malik was got recorded by the Metropolitan Magistrate, Delhi.
Thereafter, on 19th July 1976, a charge sheet (R.C. 4/1976) was filed in the Court of Chief Judicial Magistrate, Delhi, for offences under Section 120 B Indian Penal Code read with Sections 420, 411 and 406 Indian Penal Code and Section 25 of the .
The case was transferred to the Court of the Additional Chief Metropolitan Magistrate.
On 20th July 1976, the Additional Metropolitan Magistrate issued process for the appearance of the three Narang brothers.
The learned Magistrate also issued warrants for the extradition of Omi Narang and Manu Narang who were in London.
Extradition proceedings were initiated in Britain at the instance of the Government of India.
The Metropolitan Magistrate, Bow Street, London ordered the detention of Omi Narang and Manu Narang pending the issue of warrants by the Secretary of State under Section 5 of the Fugitive Offenders Act.
A petition for the issue of Writ of Habeas Corpus Ad Subjiciendum was filed in the High Court of Justice, Queen 's Bench Division, London.
The Divisional Court directed the release of Omi Narang and Manu Narang.
The Government of India filed an appeal to the House of Lords and on 24th March, 1977, the appeal was allowed.
Omi Narang and Manu Narang were finally extradited and brought to India on 27th July, 1977.
930 Meanwhile internal emergency was lifted in India in March 1977 and Ram Lal Narang was released.
Almost immediately he filed a petition before the Additional Metropolitan Magistrate to drop the proceedings against him, to cancel the extradition warrants and to discharge the accused.
The contention was that the entire investigation in First Information Report No. R.C. 4/76 was illegal as a case on the same facts was already pending before the Ambala Court and that the Delhi Court acted without jurisdiction in taking cognizance of the case pursuant to a report of police based upon such illegal investigation.
The learned Magistrate held that he was not competent to sit in judgment, as it were, over the order of his predecessor taking cognizance of the case.
He, however, found that the conspiracy which was the subject matter of the case before the Court at Ambala and the conspiracy which was the subject matter of the case before himself were one and the same, but, he held that the question as to which Court should proceed with the case, was not for him to decide; it was a matter for the High Court to decide under Section 186 Criminal Procedure Code.
The learned Magistrate also noticed an application filed before him, after the conclusion of arguments, informing him that the case in the Court at Ambala against Malik and Mehra had since been withdrawn on 16th May 1977.
On 21st June 1977, two applications were filed in the Delhi High Court under Section 482 Criminal Procedure Code, one by Ramlal Narang and the other on behalf of Omi Narang and Manu Narang who were still in England awaiting extradition.
The applicants sought quashing of the orders of the learned Metropolitan Magistrate issuing process to them and warrants for the extradition of Omi Narang and Manu Narang.
It was also sought to be declared that the entire investigation in R.C. 4 of 1976 was illegal and the orders of the Chief Metropolitan Magistrate and the Additional Metropolitan Magistrate taking cognizance of R.C. 4 of 1976 were illegal.
The grant of pardon to N. N. Malik was questioned.
It was also prayed that the proceedings before the Metropolitan Magistrate might be quashed.
The petitions were admitted by the Delhi High Court on 22nd June, 1977, but ultimately dismissed on 10th January 1978, by a common judgment.
Ramlal Narang having obtained special leave from this Court has filed Criminal Appeal No. 373 of 1978 and Omi and Manu Narang have preferred Criminal Appeal No. 374 of 1978.
We may mention here that on 1st August, 1977, a supplemental charge sheet was filed making Mehra an accused in the Delhi case, the case in the Ambala Court having been withdrawn on 16th May, 1977, as mentioned earlier.
Malik, we may add, died sometime during August, 1977.
931 We are given to understand that Mehra also was subsequently granted pardon.
Shri Harjinder Singh, learned Counsel for the appellant in Criminal Appeal No. 373 of 1978 and Shri Ashok Sen, learned Counsel for the appellants in Criminal Appeal No. 374 of 1978 argued that the conspiracy and the overt acts which were the subject matter of the two First Information Reports and the two charge sheets were the same and, therefore, there was an implied bar to the power of the Police to investigate into First Information Report No. R.C. 4 of 1976 and the power of the Court at Delhi to take cognizance of the case upon the report of such information.
It was submitted that the mere circumstance that some more persons were mentioned as involved or the mere circumstance that the property was said to have been recovered later would not affect the legal position.
It was submitted that gist of the conspiracy in both the cases was to obtain possession of the pillars.
The offence of conspiracy relating to the obtaining of the pillars having been investigated and a charge sheet having been filed in the Ambala Court, the Police had no authority in law to start a fresh investigation under the Criminal Procedure Code by registering another First Information Report and to submit a charge sheet in the Delhi Court for the very same offence.
That was an unwarranted interference by the Police with the proceedings pending in the Court.
The whole of the investigation subsequent to the filing of the charge sheet in the Ambala Court was without jurisdiction and no material or fact gathered during the course of such illegal investigation could be used to found further proceedings.
The Delhi Court was, therefore, in error in taking cognizance of offences which had already been investigated and which were the subject matter of proceedings in another Court.
It was also argued that the subsequent withdrawal of the case from the Ambala Court did not and could not confer jurisdiction on the Delhi Court.
The withdrawal itself was an abuse of the process of the Court.
Shri Lalit, learned Counsel for the respondents urged that the conspiracy which was the subject matter of the charge sheet filed in the Delhi Court was not the same as the conspiracy which was the subject matter of the charge sheet filed in the Ambala Court.
The circumstance that some of the conspirators were common and part of the case was the same did not make the two conspiracies identical with each other.
There was, therefore, no question of any bar against the Delhi Court from taking cognizance of the case based upon the wider conspiracy merely because the Ambala Court had taken cognizance of the case based upon the narrower conspiracy.
Shri Lalit also urged that the statutory right of the Police to investigate into cognizable 932 offences was not fettered and did not end with the submission of a charge sheet to the Court.
He submitted that the Police had the right and indeed, the duty, to investigate into fresh facts coming to light and to appraise the Court of the same.
The basic submission on behalf of the appellants was that the two conspiracies alleged in the two cases were but one.
The sequitur was that the investigation into and the taking of cognizance of the second case were without jurisdiction.
We will first examine the question whether the conspiracy which was investigated by the Police and which investigation led to the filing of the charge sheet in the Ambala case can be said to be the same as the conspiracy which was later investigated and which led to the filing of the charge sheet in the Delhi Court.
For this purpose, it is necessary to compare the First Information Report and the charge sheet in the two cases.
The First Information Report relating to the case in the Ambala Court was registered against "N. N. Malik and others" for alleged offences under "Section 120 B Indian Penal Code read with Section 420 and Section 406 Indian Penal Code.
" It was stated therein that N. N. Malik applied to the Court of the Judicial Magistrate 1st Class, Karnal and obtained possession of the two stone pillars and dishonestly substituted two fake pillars in their place and returned them to the Court.
The charge sheet which was filed on 30th December, 1972 mentioned N. N. Malik and H. L. Mehra as the two accused in the case and recited that N. N. Malik was introduced by Mehra to the Magistrate as an eminent archaeologist and that he obtained possession of the pillars on the pretext that he wanted to make some research.
The actual order granting custody of the pillars to Malik was written by Mehra but signed by the Magistrate R. K. Sen.
It was further recited that sometime after the pillars were returned by Malik to the Court it was discovered that the pillars so returned were fakes and that N. N. Malik was not an archaeologist.
It was finally said that Malik and Mehra had "thus dishonestly made misrepresentation of fact and got the delivery of the two statues which were subsequently substituted by them" and they had "thus committed the offence under Section 120 B read with Section 420 Indian Penal Code and Section 406 Indian Penal Code.
" It is, therefore, seen from the allegations in the charge sheet filed in the Ambala Court that the conspirators involved in the conspiracy which was its subject matter were two, namely, Malik and Mehra, that the object of the conspiracy was to dishonestly obtain possession of the pillars by making false representation to the Magistrate and to substitute the pillars by fakes after 933 obtaining possession of the same and that the offences committed were under Section 120 B read with Section 420 and 406 Indian Penal Code.
The First Information Report in the Delhi case was registered on 13th May, 1976, and the offences mentioned were Section 120 B Indian Penal Code read with Section 411 Indian Penal Code and Section 25(1) of the .
The accused mentioned in the report were Manu Narang and Ramlal Narang.
After reciting that the pillars had been taken from the Court by N. N. Malik and had been substituted by fake pillars, the First Information Report went on to recite that the genuine pillars, which were stolen from Suraj Kund temple as mentioned above were found to be in the possession and control of Manohar Lal alias Manu Narang in London.
It was further recited that Manu Narang was negotiating the sale of the pillars through some London brokers and the price expected to be fetched was approximately five hundred American dollars.
It was recited further that Manu Narang and his brother Ramlal Narang had commissioned two well known sculptors of Delhi to make three sets of fake pillars.
The two brothers and others, acting in conspiracy, had dishonestly received and exported the two stone pillars.
The charge sheet which followed the investigation was filed on 19th July 1976 in the Delhi Court.
The charge sheet mentioned the three Narang brothers, Ramlal Narang, Manoharlal Narang and Om Parkash Narang, as the three accused persons sent up for trial and H. L. Mehra as a person not sent up for trial as he was already facing trial before the Special Magistrate, Ambala.
The charge sheet recited, among other facts, that the Narang brothers had come to know in or about the month of February 1978 about the invaluable nature of the pillars and devised a stratagem to get the custody of the pillars.
They discussed their stratagem with their family friend N. N. Malik, informing him that the pillars were worth a fortune.
Ramlal Narang and Malik met Mehra and it was decided that Malik should file an application for temporary custody of the pillars and that Mehra should wield his influence over the Magistrate to help N. N. Malik to get such temporary custody.
That was done.
Temporary custody of the pillars was obtained and they were removed to Delhi in a truck at the instance of the Narang brothers to a place in Defence Colony, New Delhi.
Replicas of the pillars were made by Balkrishan Rawal and Natwarlal, two eminent sculptors of Delhi under the supervision of Ramlal Narang and Omi Narang.
Manu Narang also used to visit Delhi and check the progress made.
The original pillars were transported to Bombay by Manu Narang and smuggled out of the country.
934 Fake pillars were substituted and returned by N. N. Malik to the Court.
Later on, suspicion was created by the discovery of two fake pillars which were also attempted to be smuggled out of the country.
The two pillars returned by N. N. Malik were then got examined by experts and were found to be fakes.
Malik was presented by the Narang brothers with a Fiat car, a revolving brass bed and a sum of Rs. 70,000/ .
They also paid for two pleasure trips made by Malik and his wife to Bombay.
It was recited in the charge sheet that the facts disclosed "the commission of offences under Section 406 (criminal breach of trust), Section 411 (receiving and retaining stolen property), Section 420 (cheating) Indian Penal Code and Section 25(1) of the , all read with Section 120 B Indian Penal Code, in pursuance of criminal conspiracy to which Manoharlal Narang, Ramlal Narang and Om Prakash Narang, H. L. Mehra and N. N. Malik (already granted pardon) were parties.
" It was further recited "Manoharlal Narang, Ramlal Narang and Omi Narang also abetted the commission of offences under Section 420 and Section 406 Indian Penal Code by N. N. Malik approver and these three accused were, therefore, liable for prosecution under Section 406 and Section 420 Indian Penal Code read with Section 109 Indian Penal Code and they had also committed other offences under Section 411 Indian Penal Code.
" It was further mentioned in the charge sheet that Manoharlal Narang and Omi Narang were in London and that proceedings for their extradition were under way.
It was also mentioned that H. L. Mehra was facing trial before the Special Magistrate, Ambala, for the offences committed by him and, therefore, he was nor being sent up for trial in this case.
It is obvious that neither at the time when the First Information Report pertaining to the Ambala case was registered nor at the time when the charge sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture.
The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court.
The First Information Report and the charge sheet were concerned primarily with the offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra.
At that stage, the investigating agency was not aware of any conspiracy to send the pillars out of the country.
It was not known that the Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court.
It was much later that the pillars surfaced in London and were discovered to be in the constructive possession of Narang brothers.
Even then, the precise connection between Malik and Mehra on the one side and 935 Narang brothers on the other was not known.
All that was known was that the pillars which were stolen property within the definition of the expression in Section 410 Indian Penal Code were found to be in the possession of Narang brothers in London.
On the discovery of the genuine pillars in the possession of Narang brothers, without anything further to connect Narang brothers with Malik and Mehra, the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers.
That was what was done.
No fault could, therefore, be found with the police for registering a First Information Report against the Narang brothers for the offence of conspiracy to commit an offence under Section 411 Indian Penal Code.
In the course of the investigation into this offence, it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by cheating.
Facts came to light which indicated that the conspiracy, which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy.
The fresh facts which came to light resulted in the filing of the second charge sheet.
The several facts and circumstances mentioned by us earlier and a comparison of the two First Information Reports and the two charge sheets show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case.
The conspirators were different.
Malik and Mehra alone were stated to be the conspirators in the first case, while the three Narang brothers were alleged to be the principal conspirators in the second case.
The objects of the two conspiracies were different.
The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them.
The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London.
The offences alleged in the first case was Section 120 B read with Section 420 and Section 406 Indian Penal Code, while the offences alleged in the second case were Section 120 B read with Section 411 Indian Penal Code and Section 25 of the .
It is true that the had not yet come into force on the date when the First Information Report was registered.
It is also true that Omi Narang and Manu Narang were not extradited for the offence under the and, therefore, they could not be tried for that offence in India.
But the question whether any of the accused may be tried for a contravention of the or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two 936 conspiracies are one and the same.
The trite argument that a Court takes cognizance of offences and not offenders was also advanced.
This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance.
The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy.
The question is whether the two conspiracies are in substance and truth the same.
Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions.
We are clear, in the present case, that the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject matter of the second case.
As we mentioned earlier, when investigation commenced in First Information Report No. R.C. 4 of 1976, apart from the circumstance that the property involved was the same; the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.
The further connected questions arising for consideration are, what was the duty of the police on discovering that the conspiracy, which was the subject matter of the earlier case, was part of a larger conspiracy, whether the police acted without jurisdiction in investigating or in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case ? In order to answer these questions, it is necessary to refer to the relevant provisions of the Criminal Procedure Code.
Counsel on both sides argued the questions on the basis that the Old Criminal Procedure Code governed the situation.
We proceed on that assumption without deciding whether the trial in the Delhi Court will be governed by the old Code or the new one.
Under the Criminal Procedure Code, 1898, whenever an officer in charge of the Police Station received information relating to the commission of a cognizable offence, he was required to enter the substance thereof in a book kept by him, for that purpose, in the prescribed form (Section 154 Criminal Procdure Code).
Section 156 Criminal Procedure Code invested the Police with the power to investigate into 937 cognizable offences without the order of a Court.
If, from the information received or otherwise, the officer in charge of a Police Station suspected the commission of a cognizable offence, he was required to send forthwith a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and than to proceed in person or depute one of his subordinate officers to proceed to the spot, to investigate the facts and circumstances of the case and to take measures for the discovery and arrest of the offender (Section 157 Criminal Procedure Code).
He was required to complete the investigation without unnecessary delay, and, as soon as it was completed, to forward to a Magistrate empowered to take cognizance of the offence upon a police report, a report in the prescribed form, setting forth the names of the parties, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case (Section 173(1) Criminal Procedure Code).
He was also required to state whether the accused had been forwarded in custody or had been released on bail.
Upon receipt of the report submitted under Section 173(1) Criminal Procedure Code by the officer incharge of the Police Station, the Magistrate empowered to take cognizance of an offence upon a police report might take cognizance of the offence (Section 190(1) (b) Criminal Procedure Code).
Thereafter, if, in the opinion of the Magistrate taking cognizance of the offence, there was sufficient ground for proceeding, the Magistrate was required to issue the necessary process to secure the attendance of the accused (Section 204 Criminal Procedure Code).
The scheme of the Code thus was that the First Information Report was followed by investigation, the investigation led to the submission of a report to the Magistrate, the Magistrate took cognizance of the offence on receipt of the police report and, finally, the Magistrate taking cognizance issued process to the accused.
The police thus had the statutory right and duty to 'register ' every information relating to the commission of a cognizable offence.
The police also had the statutory right and duty to investigate the facts and circumstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report.
These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the Police to investigate into a cognizable offence.
This position in law was well established.
In King Emperor 938 vs Khwaja Nazir Ahmed(1), the Privy Council observed as follows: "Just as it is essential that every one accused of a crime should have free access to a Court of justice, so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry.
In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the Court.
The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Courts, to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus.
In such a case as the present, however, the Court 's function begin when a charge is preferred before it and not until then. .
In the present case, the police have under Sections 154 and 156 of the Criminal Procedure Code, a statutory right to investigate a cognizable offence without requiring the sanction of the Court. .
Ordinarily, the right and duty of the police would end with the submission of a report under Section 173(1) Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence.
There was no provision in the 1898 Code prescribing the procedure to be followed by the police, where, after the submission of a report under Section 173(1) Criminal Procedure Code and after the Magistrate had taken cognizance of the offence, fresh facts came to light which required further investigation.
There was, of course, no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence.
As we shall presently point out, it was generally, thought by many High 939 Courts, though doubted by a few, that the police were not barred from further investigation by the circumstance that a report under Section 173(1) had already been submitted and a Magistrate had already taken cognizance of the offence.
The Law Commission in its 41st report recognized the position and recommended that the right of the police to make further investigation should be statutorily affirmed.
The Law Commission said : "14.23.
A report under Section 173 is normally the end of the investigation.
Sometimes, however, the police officer after submitting, the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused.
We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned.
It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re open the investigation.
This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused.
It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate.
Copies concerning the fresh material must of course be furnished to the accused".
Accordingly, in the Criminal Procedure Code, 1973, a new provision, Section 173(8), was introduced and it says: "Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police Station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed, and the provisions of sub sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub section (2)".
The right of the police to make repeated investigations under the old Code was recognised by the Madras High Court as early as in 1919 in Divakar Singh vs A. Ramamurthi Naidu (1), where Phillips and Krishnan, JJ., observed as follows: 940 "Another contention is put forward that when a report of investigation has been sent in under Section 173, Criminal P.C., the police has no further powers of investigation, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received".
In re.
Palaniswami Goundan(1) the Madras High Court held that notwithstanding the filing of a final charge sheet, a police officer could still investigate and lay further charge sheets if he got information and that there was no finality either to the investigation or to the laying of charge sheets.
In Md. Niwaz vs The Crown(2) a Bench of the Lahore High Court consisting of Din Mohammad and Cornelius JJ., cited with approval the decision of the Division Bench of the Madras High Court in Divakar Singh vs A. Ramamurthi Naidu(3) already referred to by us.
In Prosecuting Inspector vs Minaketan Mahato(4), the High Court of Orissa held that the police had the right to reopen investigation even after the submission of the charge sheet under Section 173 Criminal Procedure Code if fresh facts came to light.
In Rama Shanker vs State of U.P.(5) a Division Bench of Allahabad High Court took the view that the submission of a charge sheet not being a judicial act, the submission of a fresh charge sheet after submission of a report under Section 173 Criminal Procedure Code was not illegal.
In re.
State of Kerala vs State Prosecutor(6) a Division Bench of the Kerala High Court thought it was well settled law that the police had the right to reopen the investigation even after the submission of a charge sheet under Section 173 Criminal Procedure Code and that there was no bar for further investigation or for filing of supplementary report.
In H. N. Rishbud vs The State of Delhi(7),this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case.
While noticing that a police report resulting from an investigation was provided in Section 190 Criminal Procedure Code as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the Court to take cognizance.
941 It was held that where cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice had been caused thereby.
It was said that a defect or illegality in investigation, however serious, had no direct bearing on the competence of the procedure relating to cognizance or trial.
However, it was observed: "It does not follow that the invalidity of the investigation is to be completely ignored by a Court during trial.
When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re investigation as the circumstances of an individual case may call for".
This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it.
In Tara Singh vs State(1) the police first submitted a report styled as "an incomplete challan", which, however, contained all the particulars prescribed by Section 173(1).
Later, two supplemental challans were submitted containing the names of certain formal witnesses.
The Magistrate had taken cognizance of the case when the incomplete challan was submitted.
It was urged that the Magistrate had taken cognizance of the case illegally and the statements of witneses examined before submission of the supplemental challans should be excluded from the record.
This Court held that the so called incomplete challan was in fact a complete report of the kind contemplated by Section 173(1) (a), and, therefore, the Magistrate had properly taken cognizance of the case.
The Court declined to express any opinion on the question whether the police could be permitted to send incomplete reports under Section 173(1) Criminal Procedure Code.
This case while neither approving nor disapproving the practice of submitting incomplete challans in the first instance, certainly notices the existence of such practice.
Some High Courts took the view that with the submission of a charge sheet under Section 173 the power of the police to investigate came to an end and the Magistrate 's cognizance of the offence started.
942 It was said that any further investigation by the police would trench upon the magisterial cognizance.
Vide Ram Gopal Neotia vs State of West Bengal(1).
In Hanuman & Anr.
vs Raj.(2) it was held that when a case was pending before a Magistrate, the action of the police in resuming investigation and putting up a new challan against a person not originally an accused as a result of the further investigation was unauthorised and unlawful.
In State vs Mehar Singh & Ors.(3), a Full Bench of the High Court of Punjab and Haryana held that the police became functus officio once the Court took cognizance of an offence on the filing of a charge sheet by the police and thereafter further investigation by the police was not permissible.
The police, it was said, could not 'tinker ' with the proceedings pending in the Court.
It was, however, observed that it would be open to the Magistrate to 'suspend cognizance ' and direct the police to make further investigation into the case and submit a report.
The High Court of Punjab and Haryana acknowledged the existence of the practice of submitting supplemental charge sheets, but was of the view that such practice was not sanctioned by the Code.
Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the Court, the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance and ordering further investigation.
The procedure of 'suspending cognizance ' suggested by the High Court of Punjab and Haryana does not appear to us to be warranted by the provisions of the Criminal Procedure Code.
Anyone acquainted with the day today working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report.
It is in the interests of both the prosecution and the defence that the police should have such power.
It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused.
When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the investigating agency has greater resources at its command than a private individual.
Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information.
It is their duty 943 to investigate and submit a report to the Magistrate upon the involvement of the other persons.
In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him.
If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial.
If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case.
What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate.
The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate.
That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation.
We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence.
We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate.
Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence.
Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts.
In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light.
Where the police desi 944 ed to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.
As in the present case, occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation.
Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together.
The Magistrates themselves may take action suo motu.
In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency.
It was submitted to us that the submission of a charge sheet to the Delhi Court and the withdrawal of the case in the Ambala Court amounted to an abuse of the process of the Court.
We do not think that the prosecution acted with any oblique motive.
In the charge sheet filed in the Delhi Court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial.
In the application made to the Ambala Court under Section 494 Criminal Procedure Code, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court.
The Court granted its permission for the withdrawal of the case.
Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, we are satisfied that the investigating agency did not act out of any malice.
We are also satisfied that there has been no illegality.
Both the appeals are, therefore, dismissed.
M.R. Appeals dismissed.
[/INST]The respondent was appointed as a Sub Inspector of police in a temporary post in 1955.
He was discharged from service on July 13, 1957.
A Writ Petition filed by him in the Allahabad High Court was allowed on August 4, 1959 and consequently he was re instated in service on December 15, 1959.
Thereafter, on January 21, 1960 his services were terminated on the ground that they were no longer required by the State.
A suit for declaration that the said order of termination was null and void was decreed in his favour by the trial court which was affirmed in appeal and also by the High Court in second appeal.
Allowing the State appeal by special leave the Court, ^ HELD: 1.
The considerations which prevailed with the High Court in reaching its findings on the application of Article 311(2) of the Constitution and the bona fides of the superior authority in making the impugned order of termination simpliciter are not warranted in law.
[1130D] 2.
The order terminating the services was order of termination simpliciter passed in accordance with the rules applicable to temporary Government servants.
After the original order of discharge was quashed by the High Court, the respondent was reinstated, allowed increment in pay and one month 's salary in lieu of notice under the 'general rules for termination of services of temporary government servants was also given.
[1128F G] 3.
It was open to the superior authority to terminate the respondent 's services on the ground on which it did so.
And the evidence disclosed no personal motive had influenced the order or that it was passed by way of punishment.
A departmental enquiry is not required under the law.
Instead of instituting disciplinary proceedings against the government servant, the suitability for retention in service could be decided.
[1128H, 1129A, E] State of U.P.v.
Ram Chandra Trivedi; , ; Champaklal Chimanlal Shah vs The Union of India, , Jagdish Mitter vs Union of India, A.I.R. 1964 S.C. 449 and State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, ; ; referred to.
Union of India & Ors.
vs R. section Dhaba, , State of Bihar & Ors.
vs Shiva Bhikshuk Mishra and R. section Sial vs The State of U.P. and Ors., ; applied.
The State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 SC 689 and Madan Gopal vs The State of Punjab, [1963] 3 SCR 716; distinguished. 1127
</s>
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<s>[INST] Summarize the judgementAppeal No. 2340 of 1966.
Appeal from the judgment and order dated October 7, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Appli cation No. 940 of 1965.
M. C. Setalvad, N. section Bindra and R. H. Dhebar, for appellant No. 1.
A. section Bobde, and section G. Kukdey, for respondent No. 1.
M. M. Kinkhede, G. L. Sanghi and A. G. Ratnaparkhi, for respondents Nos.
3 16, 19 31, 33, 34, 36 45, 47 53, 55 and 57.
The Judgment of the Court was delivered by Bachawat, J.
This appeal arises out of a writ petition filed by respondent No. 1 before the Nagpur Bench of the Bombay High Court, challenging the show cause notice dated July 21, 1965 and the order dated September 29, 1965, superseding the municipal corporation of the city of Nagpur.
In July, 1962, the term of office of the present Councillors commenced.
On July 21, 1965, the Government of Maharashtra issued a notice to respondent No. 1, the Mayor of the Nagpur Municipal Corporation, asking him to show cause why the corporation should not be superseded.
On August 1, 1965, respondent No. I filed his reply to the show cause notice.
On September 29, 1965, the State Government passed the impugned order superseding the corporation under sections 408 and 409 of the City of Nagpur Corporation Act 1948 (C. P. & Berar Act 11 of 1950).
On September 30, 1965, respondent No. I filed a writ petition challenging the show cause notice and the order of supersession.
The High Court allowed the writ petition and quashed the order of supersession.
The High Court held that the State Government exercised its power under section 408 on grounds which were not reasonably related to its legitimate exercise and the finding upon which the order was passed was rationally impossible on the materials before the State Government.
The State of Maharashtra now appeals to this Court on a certificate granted by the High Court.
By an order of this Court, the Administrator of the City of Nagpur appointed under the order of supersession of September 29, 1965, has been joined as the second appellant.
585 Section 408 of the City of Nagpur Corporation Act 1948 is in 'these terms: "408.
(1) If at any time upon representations made or otherwise it appears to the State the Corporation is not competent to perform or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the time being in force, or exceeds or abuses its powers the State Government may ', after having given an opportunity to the Corp oration to show cause why such an order should not be made, or if it" appears to the State Government that the case is one of emergency, forthwith issue an order directing that all the Councillors shall retire from office as and from such date as may be appointed and declare the Corporation to be superseded.
Such order shall be published in the Gazette and the reasons for making it shall be stated therein.
(2) Notwithstanding anything contained in sections 17 and 20, all Councillors shall vacate their office from the date mentioned in any order under sub section (1).".
The consequence of supersession of the corporation under section 408 is that all its members vacate their office, all powers and duties of the; corporation; the Standing Committee and the chief executive officer may be exercised by the administrator of the city appointed by the State government, and all property vested in the corporation vests in the administrator (section 408).
The conditions for the exercise of he power under section 408 are clearly stated in the section.
It must appear to the State government that the corporation is not competent or persistently makes default in the performance of the duties imposed on it by or under the Act or any other law for the time being in force, or exceeds or abuses its powers.
Except in cases of emerge icy, the State government must give to the corporation an opportunity to show cause why the order under the section should not be made.
If on a consideration of the explanation submitted by the corporation, the State government considers that there is no ground for making the order, the Government may drop the proceeding.
Otherwise, it may issue an order declaring the corporation to 'be superseded and directing that all the Councillors shall retire from office.
The order must be published in the Gazette and the reasons: For making it must be stated therein.
There is no appeal to the court from the order under section 408.
in a writ application the court will not review the facts as an appellate body.
But the order is liable to be set aside if no reasonable person on a proper consideration of the materials before the State government could form the opinion that the corporation "is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the 586 time being in force, or exceeds or abuses its powers".
Likewise, the order is liable to be set aside if it was passed in bad faith or if in a case which was not one, of emergency, due opportunity to show cause was not given to the corporation.
In all such cases, the order is in excess of the statutory power under section 408 and is invalid.
On the question whether the order under section 408 is an administrative or quasi judicial act, our attention was drawn to the decisions in Municipal Committed, Karali and Another, vs The State of Madhya Pradesh(1) and Shri Radheshyam Khare and Anr.
vs The State of Madhya Pradesh and Others.(2) These cases turned on the construction of sections 53A and 57 of the C. P. & Berar Municipalities Act 1922 (Act 11 of 1922).
The point whether the order under section 408 is quasi judicial or administrative act is not very material, for it is common ground,that the present case was not one of emergency and the State government was bound to give opportunity to the corporation to show cause why the order should not be made.
The order dated September 29, 1965 was in these terms: "Whereas it is reported to the Government of Maharashtra that the Municipal Corporation of the City of Nagpur (hereinafter referred to as 'the Municipal Corporation ') constituted under the City of Nagpur Municipal Corporation Act, 1948 (C.P. & Berar Act 11 of 1950) (hereinafter.
referred to as 'the said Act ') (a) has, since the present Councillors entered upon their office, planned its expenditure on the basis of uncertain receipts as shown below, that is to say Year Receipts in budget as Actual of previous passed by Corporation year Rs. in lacs Rs. in lacs.
1963 64 351 173 1964 65 221 190 1965 66 258 (200 to 215 lacs anticipated.
and without exercising the proper controls provided by or under the said Act has allowed its financial position to deteriorate rapidly and seriously to such an extent that the free cash balance of Rs. 5.81 lacs approximately in March 1962 was reduced to Rs. 53,000 approximately on the 12th July, 1965: and that the Corporation had no funds even to (1) A.I.R. 1958 M.P. 323.
(2) 587 disburse the salaries of its officers and 'servants as is noticed from the Resolution of the Municipal Corporation No. 98, dated the 4th September, 1965; and (b) has neglected to under take the improvement of water supply and to provide a sufficient supply of suitable water for public and private purposes; And whereas, an opportunity was given to the Municipal Corporation to show cause why in the aforesaid circumstances an order of supersession under sub section (1) of section 408 of the said Act should not be made , And whereas, after considering the reply of the Municipal Corporation and subsequent it submissions made by it the Government of Maharashtra is of the opinion that the Municipal Corporation is not competent to perform the duties imposed on it by or under the said Act; Now ' therefore, in exercise of the powers conferred by sub section (1) of section 408 and subsection (1) of section 409 of the said Act, and of all other powers enabling it in this behalf, the Government of Maharashtra for the reasons specified aforesaid, hereby (1) directs that all the Councillors of the Municipal Corporation shall retire from office as and from the 1st day of October, 1965; (2) declares the Municipal Corporation to be superseded from that date; and (3) appoints Shri D. H. Deshmukh to be the Administrator of the City of Nagpur From the order it appears that there were two grounds on which the State government formed the opinion that the corporation was not competent to perform the duties imposed on it by or under the Nagpur Municipal Corporation Act, 1948.
Annexure 2 to the show cause notice dated July 21, 1965 Set out the following facts relatable to the first ground mentioned in paragraph 1(a) of the order: "II.
(1) In March 1962, the free cash balance with the Corporation was Rs., 5.
81 lacs.
On 12 7 65, the opening cash balance of the Corporation ",as Rs. 53,821.
The Statement 'A ' appended hereto will reveal the financial.
position of the Corporation.
On the basis of average daily receipts the Corporation will have an opening balance of Rs. 7 74 lacs on 1 8 65 as against that their immediate liabilities are of the order of Rs. 30 84 lacs. 'It is 588 thus clear that the Corporation is heading for a grave.
financial crisis and it will not be in a position even to pay fully the salaries and wages of their permanent and temporary employees.
Under Chapter IV of the City of Nagpur corporation Act, the Corporation is required to pay salaries to their officers and servants as provided for in Sections 47, 49 and 50 of the said Act.
The liability arising out of the payment of salaries; and wages is the third charge on the municipal fund the.
previous two charges being repayment of all loans payable by the Corporation under Chapter IX of that Act and the second being the payment for discharge of all liabilities imposed on the Corporation in respect of debts ' and obligations and contracts of ' the Municipality, of Nagpur, to whom the Corporation is a successor.
It is assumed that such liabilities do not any ' longer exist.
Thus the payment of salaries etc., is the ,second charge on the municipal fund, and it is very obvious from the figures in Statement `A ' that the Corporation is not in a position to discharge that liability.
" The opinion of the State, government so far as it is based on the first ground cannot be supported.
The show cause notice did not mention the charge that the Councillors planned the expenditure on the basis of uncertain receipts or that they did not exercise .proper controls provided by or under the Act.
No opportunity was given to the corporation to explain the charge.
Without giving such an opportunity, the State government could not lawfully and that the charge was proved.
The cash balances of the cor poration vary from day to day.
No reasonable person could possibly come to the conclusion hat the financial position of the corporation had deteriorated from the fact that the cash balances were Rs. 5,81,000 in March 1962 and Rs. 53,000 on July 12, 1965.
The, statement that the corporation had no funds to disburse the salaries of its officers and servants had no factual basis.
As a matter of fact, the corporation paid the salaries.
The dearness allowance was not paid because the bills were not scrutinized. ' The resolution dated September 4, 1965 referred to in the order was passed long after the show cause notice was issued and the corporation was not given an, opportunity to explain it.
The resolution did not say that the co ' oration had no ' funds even to disburse ' the salaries of its officers and servants.
The, corporation resolved to raise a loan of Rs. 15 lacs from the State; Government, but, the; loan was not raised.
The High Court also pointed out that many of the statements in the. statement "A" referred to in the show cause notice were factually incorrect.
The opinion of the State government, based on the first ground cannot be sustained, firstly because the corporation had no, opportunity to show cause against the charge, and secondly, because no reasonable Person on the materials 589 before the State government could possibly form the opinion that the charge was proved: The second.
ground referred to in paragraph 1 (b) of the order dated September 29, 1965 is more serious.
Section 57(1)(k) of the City of Nagpur Corporation Act, 1948 provides that the corporation shall make adequate provision by any means or measures which it may lawfully use or take for. . . "(k) the management and maintenance of all municipal water works and the construction and maintenance of new works and Means for providing sufficient supply of suitable water for public and private purposes.
" The charge was that the corporation neglected to undertake the improvement of water, supply and to provide a sufficient supply of suitable water for public and private purposes.
The relevant facts were set out in annexure 1 1(1) to (4) and annexure 11 to the show cause notice.
It is ' common ground that the water supply of the city of Nagpur was inadequate.
The population of the city was fast increasing and it was the duty of the corporation to augment the supply.
The improvement of the head works at the Kanhan Stage III and also the re modelling and redesigning of the distribution system was necessary for augmenting and,improving the water supply.
The work at Kanhan Stage.111 commenced in 1964 and.
for that purpose the Government sanctioned an ad hoc loan of Rs. 21 lacs.
The cost of the remaining work at Kanhan Stage III and the work of re modelling and redesigning of distribution system was estimated to be Rs. 70 lacs.
The corporation could not meet the cost without.
raising a loan.
II had the power to raise a loan for this purpose with the previous sanction of the State government under section 90 of the City of Nagpur Corporation Act 1948.
The corporation was not in a position to raise 1 he loan in the open market unless the repayment of the loan was guaranteed by the Government.
It approached the.
Government to give the guarantee.
The Government was willing to give the guarantee if two conditions were fulfilled (1) the co oration would meter the water supply immediately, and (2) in the annual budget, the budget of the water works department for the supply of water would be shown separately.
The Government was not willing to, give the guarantee unless conditions were fulfilled.
In May/June,.965, these conditions were communicated by, the minister in charge to the municipal commissioner and the chairman of the standing committee.
On June 5, 1965, the standing committee resolved: "(i) The Corporation may raise in the open market loan of Rs. 70 lacs for the purpose of completing the Kanhan Stage III head works and provision of Alteration plant and for re modelling and redesigning the water distribution system in Nagpur Corporation are.
590 (ii) The principle of universal meterisation should be accepted and all water connection in future should only be in the meter system ' (iii) The principle of providing a separate subsidiary budget for water supply should be accepted.
" At a meeting held on June 30, 1965, the corporation appears to have disapproved of the standing committee 's resolution regarding the principle of universal meterisation and setting up a separate subsidiary budget for water supply though no specific resolution to that effect was passed.
A meeting of the corporation on July 5, 1965 was convened to discuss the matter of raising a loan of Rs. 70 lacs.
In the notice calling the meeting, the following office note appeared at the foot of the relevant agenda: "In this connection the State Government demanded the following two assurances from the Corporation, (1) Nagpur Corporation should meter the water supply immediately.
(2) In the annual budget of the Corporation,budget of the water works department should be shown separately for supply of water.
In the said budget provision for payment of loans, sinking.
fund and future increase, in expenditure should be made separately.
After making these provisions the Corporation can expend the money for other works.
" On July 5, 1965, the meeting was adjourned.
On July 1,2, 1965, the corporation passed the, following resolution: "The Corporation gives its approval to the raising of a loan of Rs. 70 lakhs, in the next three years.
Such a loan comprising of Rs. 24 lakhs for Kanhan 3 Stage scheme and Rs. 45 lakhs for improvement in the Distribution System necessitated in view of the additional 29 million gallons of water that will be available after completion of the Kanhan 3 Stage Scheme.
The office should take necessary action to obtain the guarantee of the State Government for raising this loan in the open market in accordance with the above Resolution.
" The resolution is not printed in the paper book, but an agreed copy of the resolution was filed before us.
:The State government was of the view that by the resolution dated July 12, 1965, the corporation refused to accept the two conditions mentioned in the office note and thereby made it impossible for the corporation to meet the cost of construction of the head works and the.
remodelling and 591 redesigning of the distribution system and to provide a sufficient supply of water for the public and private purposes.
The corporation could not raise the loan without the Government guarantee and the government could, not reasonably guarantee the loan unless the two conditions of universal meterisation and the separate budget for the water supply were accepted.
The two conditions were reasonable.
The adoption of universal meterisation would have curtailed the wastage of water and secured adequate revenues necessary for the repayment of the loan and the setting up of an adequate sinking and development fund for the water supply.
A separate budget for the supply of water would have ensured that the receipts from the/ supply of water were a located to the expenditure on the water supply scheme.
The answer of the corporation was twofold.
The corporation said firstly that the resolution dated July 12, 1965 neither accepted nor rejected the two conditions and the question of accepting the conditions was left for future negotiations with the government after the government would be approached for the sanction of the loan under section 420(2)(r) of the City of Nagpur Corporation Act 1948, read with City of Nagpur Corporation Loans Rules 1951.
The corporation said secondly that the cost of immediate meterisation of the old connections would be Rs. 52 lacs and it was impossible for the corporation to raise this sum, nor could it lawfully divert any portion of the loan of Rs. 70 lacs for meeting this cost.
The High Court accepted the contention that at the meeting held on July 12, 1965, the corporation had resolved that the matter with regard to the conditions imposed by the government for giving the loan should be left for further negotiations with the government.
But it is to be noticed that the resolution dated July 12, 1965 did riot state that there should be any further negotiations with the government on the matter, nor did it disclose the financial problem with regard to meterisation or the basis upon which further negotiations should take place.
On June 30, 1965, he corporation had talked out the recommendation of the standing committee with regard to the universal meterisation and separate budget.
In this background, the State government.
could reasonably hold that the passing of the resolution excluding the office note amounted to virtual rejection of the conditions mentioned in the note.
The High Court was in error in accepting the first contention.
The High Court was also in error in holding that the Govern ment passed the order of September 29, 1965 without considering that universal meterisation posed a formidable problem which could not be overcome without a loan of Rs. 52, lacs in addition to the loan of Rs. 70 lacs.
The resolution of July 12, 1965 did not state that the corporation wanted an additional loan of Rs. 52 lacs for meeting the cost of universal meterisation.
Even in the answer to the showcause notice, the corporation did not say that it wanted to raise 592 an additional loan of Rs. 52 lacs.
The answer stated that the raising of this sum for the present was an impossibility.
There is nothing to show that the State, government would not have guaranteed repayment of this additional loan or that it was not possible to raise the loan backed, by a government guarantee.
In the writ petition respondent No.1 gave a summary of the reply to the show cause notice.
But there was no specific averment in the petition supported by affidavit that Rs. 52 lacs was necessary for the meterisation and that the raising of this sum was an impossibility.
That is why the point was not dealt with in the return to the writ, petition.
Even assuming that the meterisation would cost Rs. 52 lacs, there is nothing to show that the government would not have guaranteed the loan for this sum or that the corporation could not have raised the loan with this, guarantee.
Moreover, if the Government was right in assuming that the corporation had refused to entertain the proposal of meterisation, the question of raising funds for the meterisation would not arise and would be irrelevant.
The government passed the order after taking into consideration the reply to the show cause notice.
There were materials be "ore the State Government upon which it could find that the corporation had neglected to undertake an improvement of water supply and to provide a sufficient supply of water for private and public purpose.
On the basis of this finding, the State government could form the opinion that the corporation was not competent to perform the duties imposed on it by or under the Act.
Mr. Bobde contended that the opinion of the State government was based on two grounds arid as one of them is found to be non existent or irrelevant, the order is invalid and should be set aside.
The cases relied on by him may, be briefly noticed.
In a number of cases, the Court has quashed orders of preventive detention based on several grounds one of which is found to be irrelevant or illusory.
After reviewing the earlier cases Jagannadhadas J, in Dwarka Dass Bhatia vs The State of Jammu and Kashmir (1) said: "The principle underlying all these decisions is 'this.
Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety 'of reasons all taken together, and if some out of them are found to be non existent or irrelevant, the very exercise of that power is bad.
This is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based.
If 'some out of them are found to be non existent or irrelevant, the Court cannot pre dicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or (1) ; ,955.
593 reasons.
To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the.
statutory authority.
In applying these principles, however, the Court must be.
satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority.
It is not merely because some ground or reason of a comparatively un essential nature is defective that such an order based on subjective satisfaction can be held to be invalid.
The Court, while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders." In Maursinha vs State of Madhya Pradesh(1), the Madhya Pradesh High Court, following the principle of the preventive detention cases, held that an order of supersession of the municipality under section 208 of the Madhya Bharat Municipal ties Act 1954, based on several grounds, most of which were found to be irrelevant, was invalid.
In Dhirajlal Girdharilal vs Commissioner of Income tax(2) Mahajan, C. J., said with reference to the order of an income tax tribunal "The learned Attorney General frankly conceded that it could not be denied that to a certain extent the Tribunal had drawn upon its own imagination and had made use of a number of surmises and conjectures in reaching its result.
He, however, contended that eliminating the irrelevant material employed by the Tribunal in arriving at its conclusion, there was sufficient material on which the finding of fact could be supported.
In our opinion, this contention is not well founded.
It is well established that when a court of facts acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the 'mind of ' the court was affected by the irrelevant material used by it in arriving at its finding.
Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises.
" In State of Orissa vs Bidyabhushan Mahapatra(3) an administrative tribunal in a disciplinary proceeding against a public servant found the second charge and four out of the five heads under the first charge proved and recommended his dismissal.
The Governor after giving him a reasonable opportunity to show cause against the proposed punishment dismissed him.
The High Court held that, the findings on two of the heads under the first charge could not be sustained as in arriving at those findings the tribunal had violated rules of natural justice.
It held that the second charge and only (1) A.I.R. 1958 M.P. 397 (2) A.I.R. 1956 S.C., 271 273.
(3) [1963] Supp.
I S.C.R. 618,665 6.
594 two heads of the first charge were established and directed the Governor to reconsider whether on the basis of these charges the punishment of dismissal should be maintained.
On appeal, this Court set aside the order of the High Court.
In the course of the judgment, Shah, J, observed: "If the High Court is satisfied that if some but not all of the findings of the Tribunal were 'unassailable ', the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty, for as we have already observed the order Of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional prote ction ha* been complied with, is not justiciable.
Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant.
The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of same of the findings but not all it appears that there had been violation of the rules of natural justice.
" The principle underlying these decisions appears to be this.
An administrative or quasi judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds.
On the other hand, an order based on several grounds some of which are found to be non existent or irrelevant, can be sustained if the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non existent grounds could not have affected the ultimate opinion or decision.
Now, the opinion of the State government that the corporation was not competent to perform the duties imposed on it by or under the Act, was based on two grounds one of Which is relevant and the other irrelevant.
Both the grounds as also other grounds were set out in paragraphs 1 and 2 read with annexures 1 and 2 of the showcause notice dated July 21, 1965.
Para 3 of the show cause notice stated, "And whereas the grounds aforesaid jointly as well as severally appear serious enough to warrant action under section 408(1) of the said Act".
The (order dated September 29, 1965, 595 read with the notice dated July 21, 1965 shows that in the opinion of the State government the second ground alone was serious enough to warrant action under section 408(1) and was sufficient to establish that the corporation was not competent to perform its duties under the Act.
The fact that the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order.
We are reasonably certain that the State government would have passed the order on the basis of the second ground alone.
The order is, therefore, valid and cannot be set aside.
In the result, the appeal is allowed, the order of the High Court is set aside and the writ petition is dismissed.
In all the circumstances, there will be no order as to costs in this Court and, in the court below.
Y.P. Appeal allowed.
[/INST]Under section 42(1) of the , no owner of a trans port vehicle shall use it or permit it to be used in any public place save in accordance with the conditions of a permit issued by the appropriated authority.
A "transport vehicle" means, under section 2(33) a "public ser , vice vehiicle" and a "public service vehicle" means,, under section 2(25), a motor vehicle either used or adapted to be used for the carriage of passengers for hire or reward.
The respondent was the owner of a motor vehicle registered as a "motor car" as defined in section 2(16) of the Act and not, as a "transport vehicle".
He was charged with an offence under section 42(1) read with section 123 of the Act, as the car was used on one occasion, for carrying passengers on payment of hire, that is for having used the car as a "transport vehicle" without the requisite permit.
The trial court, and the High Court on appeal, acquitted him on the ground that as section 42(1) uses the words "owner of a transport vehicle" the sub section applies only to cases where the motor vehicle was registered as a transport vehicle.
In appeal to this Court, HELD : It is the use of the motor vehicle for carrying passengers for hire or reward which determines the category of the vehicle and the.appli 'cation of section 42(1).
Therefore, even if the motor vehicle was occasionally used for carrying passengers for hire or reward, it must be regarded when so used, as a "public service vehicle" and therefore a "transport vehicle ' and, if it was so used without the necessary permit the owner who uses it or permits it to be so used would be liable under section 42(1) read with,: section 123.
The interpretation of the High Court would lead to the anomalous result, namely : that whereas the owner of a transport vehicle is required to have the permit, the owner of a motor vehicle not constructed or adapted as a transport vehicle could carry with impunity passengers without any permit, and such an interpretation would defeat the object of the legislature in making the provision in the interest of the safety of passengeii.
A B; 677 H; 678 A B] B section Usman Saheb vs State of Mysore, and.
Jayaram vs State of Mysore, , overruled.
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<s>[INST] Summarize the judgementivil Appeal No. 350 of 1977.
From the Judgment and Order dated 19.10.1976 of the Madhya Pradesh High Court in Second Appeal No. 385 of 1974.
S.N. Kacker and Shri Narain for the Appellants.
Harish N. Salve, Mrs. P.S. Shroff, S.S. Shroff and S.A. Shroff for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave arises out of a suit filed by the respondent for setting aside the decree in an earlier suit being Suit No. 61 A of 1955 instituted by Dammu Lal, husband of the respondent No. 1 and father of respondent No. 2 to 12, for eviction of the appellants from a building in Raipur which is in their occupation as tenants.
Dammu Lal also prayed for a decree for arrears of rent and damages.
The prayer for eviction was allowed along with a money decree for Rs.260 as arrears of rent and Rs.137 as damages the tenants filed an appeal which was numbered as Civil Appeal No 7 A of 1965.
During the pendency of the appeal Dammu Lal died and his legal representatives were substituted as respondents.
Some of his children were minor who were placed under the guardianship of their mother Smt.
Sugandhibai, respondent No. l.
An application purporting to be a compromise petition on behalf of all the parties was filed before the court which was recorded and the suit was disposed of in its terms by the appellate court on 23.4.1966.
According to the compromise the entire decree was set aside and the suit was dismissed, with the parties bearing their own costs.
The respondents have challenged the compromise decree by the present suit.
The trial court dismissed the suit.
On appeal the first appellate court reversed the decision, set aside the compromise decree and directed the Civil Appel No. 7 A of 1965 to be disposed of afresh1 in accordance with law.
By PG NO 198 the impugned judgment the High Court dismissed the second appeal preferred by the appellants.
Mr. Kacker, the learned counsel appearing in support of the appeal, placed the facts relevant to the several questions raised by the parties and decided by the courts below and contended that the decision of the High Court is illegal on several grounds.
We do not consider it necessary to go into all the questions disposed of by the courts below as the respondents are, in our view, entitled to succeed in the suit on one of the several points urged on their behalf which is discussed below.
As has been stated earlier, some of the party respondents in Civil Appeal No. 7 A of 1965 including Kamal Kumar, one of the sons of Dammu Lal, were minor and were represented by Mr. Makasdar, Advocate.
In view of the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure, it was essential for the court to have granted permission to the guardian to enter into the compromise only after considering all the relevant circumstances.
From the records of the case it appears that the court before recording the compromise sanctioned leave in the following words: "As the appellant is prepared to forego the entire cost of the proceedings, it is in the interest of the minors and benefit of the minors that this appeal be compromised.
The minor respondents are represented by senior counsel and his opinion is that it will be in the interest of the minor to compromise the appeal.
In view of this, I have no reason to disagree with him.
I am satisfied that the compromise is in the interest of the minors, hence, I allow the application and grant the necessary permission under Order 32 Rule 7 C.P.C. to the learned counsel of the minor respondents to compromise the appeal.
" On the face of it, the compromise was one sided whereby the minors were giving up their right under the trial court 's decree both in respect to eviction as well as arrears of rent and damages.
It is said that as a consideration for the compromise the appellants were giving up their right to claim costs which might have been decreed by the appellate court in case of their success c.n merits.
According to the respondents ' case which has been accepted by the two courts below the guardian of the minors was guilty of gross negligence in entering into the com promise by failing to take into account the interest of the minors.
On behalf of the appellants it has been contended PG NO 199 that during the pendency of Civil Appeal No. 7 A of 1965 the M.P. Accommodation Control Act was passed and the decree of the trial court was likely to be set aside.
In that view, it is urged, the minor 's guardian through Mr. Makasdar acted rightly in settling the dispute and thus saving a decree for costs which could have been passed against them.
According to the further case of the respondents the relevant circumstances and the terms of the compromise were never explained to the respondent No. 1 and Mr. Mokasdar asked for the court 's permission to enter into the compromise on behalf of the minor without any instruction from their guardian in this regard.
It is also urged that the language of the order whereby the court granted its permission indicates that the court did not apply its mind independently.
However, we do not consider it necessary to decide these points as also several others raised by the parties as in our view the compromise decree must be set aside on the ground of gross negligence.
It has not been suggested on behalf of the appellants in the present case that there was any ground available to them to successfully challenge the money decree passed in the earlier suit.
Mr. Kacker also has not suggested any possible ground against that part of the decree.
He, however, said that the decree was not for a substantial amount as it was for less than Rs.400, and should therefore be ignored for the purposes of this case.
The question as to whether the amount was substantial or not has to be judged in the light of the circumstances in the case.
Here the building in question was a small one fetching a small amount of rent and a sum of Rs.400 could not be ignored as inconsequential or unsubstantial.
It has also to be remembered that even the cost in such a suit which was the sole consideration for the compromise could not be a large sum.
Besides, neither the minors advocate nor the court appears to have really considered the impact of the rent Act on the fate of the appeal which came in force during the pendency of the litigation.
We, therefore, hold that the compromise decree is fit to be set aside, and the decision of the court below does not call for any interference.
Accordingly Civil Appeal No. 7 A of 1965 is restored to its file before the II Additional District Judge, Raipur and will now be disposed of in accordance with law.
The appeal is dismissed with costs payable to respondents No. I to 12.
P. S .
Appeal dismissed .
[/INST]The appellant who was a Sub Inspector of Police was dismissed by the Superintendent of Police by an order dated 29th January, 1973, exercising powes under clause (b) of the second proviso to Article 311(2) of the Constitution of India.
The appellant preferred an appeal to the Inspector General of Police, and the said appeal Having been dismissed, he challenged the order of dismissal as well as the appellate order in an application under Article 226 of the Constitution in the High Court.
A Division Bench, however, dismissed the application.
In the appeal by special leave to this Court, it was contended on behalf of the appellant that: (1) the appellant having been appointed as Sub Inspector of Police by the Inspector General of Police, the order of his dismissal by the Superintendent of Police was illegal being in contravention of Article 311(1) of the Constitution, and (2) the provisions of clause (b) of the second proviso to Article 311(2) of the Constitution were not attracted to the facts of the case and consequently the order of dismissal was illegal having been passed without compliance with the requirements of Article 311(2).
Dismissing the Appeal, the Court, HELD: 1.
The Superintendent of Police and Principal, Police Training College, Assam are authorities having coordinate jurisdiction to appoint Sub Inspectors under Rule PG NO 324 11(X) and Schedule Column II of the Assam Police Manual, Part III.
[329E; 328H] In the instant case, the appellant having been appointed by the Principal Police Training College Darrang, Assam, and having been dismissed by the Superintendent of Police, Darrang, District Tejpur who was a coordinate authority, the submission that the order of dismissal was illegal as having been passed by an authority subordinate to that by which he was appointed has no substance.
[329E F] 2.
While construing the words "it is not reasonably practicable to hold such enquiry" used in clause (b) of the second proviso to Article 311(2) it was held in Union of India vs Tulsi Ram Patel and Others, [1985] Supplement 2 SCR 131, that whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.
It is not a total or absolute impracticability which is required.
What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.
One of the illustrations justifying clause (b) of the second proviso to Article 311(2) being invoked, is the non availability of the witnesses on account of fear of the officer concerned.
[330G H; 331A B, 332A] In the instant case, it is apparent from the order of dismissal that this was the main ground for invoking the said clause (b).
The Superintendent of Police who passed the order of dismissal was the best authority on the spot to assess the situation in the circumstances prevailing at the relevant time and this Court does not find any good ground to interfere with the view taken by the Superintendent of Police in this behalf.
In such matters the Court will not sit in judgment over the relevancy of the reasons given by the disciplinary authority for invoking clause (b) like a Court of appeal.
Even in those cases where two views are possible, the Court will decline to interfere.
[332A B. C]
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<s>[INST] Summarize the judgementAppeal No. 97 of 1966.
Appeal from the judgment and decree dated January 11, 1962 of the Madhya Pradesh High Court in First Appeal No. I 1 5 of 1958.
M. section Gupta, for the appellants.
I. N. Shroff for respondent No.1 .
The Judgment of the Court was delivered by P. Jaganmohan Reddy, J.
This appeal is by certificate granted by the High Court of Madhya Pradesh under Article 133 (i) (a) of the Constitution of India against its judgment and decree by which it reversed the judgment and decree of the Addl.
209 District Judge, Ambikapur.
The High Court held that the claim of the appellant on the promisory note executed by the Maharaja of Surguja an erstwhile Ruler whose state was merged in Madhya Pradesh, could not be enforced against the Ist Respondent the State of Madhya Pradesh because after the cession of the erstwhile State, the new State had not expressly or impliedly undertaken to meet that liability.
In other words, the plea of 'an act of 'State ' raised by the 1st respondent was accepted.
The circumstances in which the suit was filed by the appellants and the array of parties may now be stated.
Appellants 1, 2, 3 and deceased Hira Lal were brothers and members of a Joint Hindu family.
Appellant 4 is the wife of Hira Lal, appellants 5 to 7 are his sons and appellant 8 is the grand son.
All these appellants along with appellants I to 3 constitute a Joint Hindu family which was carrying on business of construction of buildings under the name and style of Hira Lal & Bros. at Ambikapur in the erstwhile State of Surguja.
The allegations in the suit filed by the appellant against the respondent State was that they had constructed buildings of the District Court and the Secretariat at Ambikapur in 1936.
The work was completed but in so far as payment was concerned, there was a difference of opinion about the measurements etc.
but ultimately it was decided to pay to the appellants Rs. 80,000 on account of the said construction and accordingly the Maharaja of Surguja 2nd respondent executed a promisory note in favour of the appellants on 27 9 1947 for Rs. 80,000 with interest @ Rs. 3 per annum.
Thereafter the Madhya Pradesh Government took over the administration of the State of Surguja on 1 1 48 after the merger of the Chattisgarh State and consequently the Court building as well as Secretariat building.were taken possession of by the Government.
When the appellants claimed the money from the State of Madhya Pradesh, it neither accepted the claim nor paid them.
The appellants after giving a notice u/s 80 of the Code of Civil Procedure filed a suit.
On the pleadings, the Trial Court had framed several issues but it is unnecessary to notice them in any great detail except to say that the claim of Rs. 80,000 was held to be valid, that this amount was payable on account of the construction of the build, , things known as Court, and Secretariat buildings, that the promote was not without consideration, that the first defendant was the successor in interest of Surguja State and is liable to pay the claim with interest and that the amount was not due to the plaintiffs on account of the personal obligation and liability of the 2nd respondent.
The Court also found against the first respondent on the issue relating to jurisdiction and negatived the defence that it is not liable because of an act of State.
In so far as the defendant the Maharaja of Surguja was concerned, it held that the suit was 210 not maintainable against him without the consent of the Central Govt.
as required under section 86 of the Civil Procedure Code and that the liability was not a personal obligation of the Maharaja but an obligation" incurred on account of his State.
In the result as we said earlier the Court awarded a decree for Rs. 87,200 with full cost against the first defendant and discharged the second defendant.
In appeal the High Court noticing that it is the admitted case of the parties that the District Court and the Secretariat building were public property and were in the possession of the first defendant as such and that that the liability in respect thereof was incurred by the Maharaja was not merely his personal liability but was a liability incurred on behalf of the State of Surguja, however, reversed the judgment of the Trial Court by holding "the the liability of the State of Surguja under the pronote was at best a contractual liability and this liability could only be enforced against the State of Madhya Pradesh if after the cession of the erstwhile State of Surguja, the new State had expressly or impliedly, undertaken to meet that liability" which it had not done.
When this appeal came up on an earlier occasion, a Civil Miscellaneous Petition 429 of 1969 was filed by the appellant; that inasmuch as the petitioners had been advised to approach the State Govt.
again for making proper representation and to canvass their claim before the appropriate authority on the basis of the concurrent findings of the Courts below and or any other appropriate orders, permission may be accorded to them to pursue this course.
The Respondents advocate did not oppose this petition and accordingly the matter was adjourned.
But it would appear that no concrete results could be achieved.
In this appeal what we have to consider is whether the plea of an act of State is sustainable having regard to the concurrent findings of the Court namely that the Court and Secretariat buildings were constructed by the appellants, that the erstwhile Maharaja the second respondent had admitted the claim and executed a. promisory note, that the liability was incurred in respect of public buildings for which the State of Surguja was liable.
The fact that appellants were asked to supply details of their claim and the first respondent was prepared to consider it has been urged as being tantamount to the acceptance of the liability.
In our view no such inference can be drawn.
It is open to the State to examine and to satisfy itself whether it is going to honour the liability or not, but that is not to say that it had waived its defence of an act of State if such a defence was open to it.
What constitutes an act of State has been considered and the principles enunciated in numerous cases both of the Privy Council and of this Court have been stated.
Many of these, decisions were examined and discussed by the High Court in its judgment and it is unnecessary for (1) 211 us to re examine them in any great detail.
These decisions lay down clearly that when a territory is acquired by a sovereign state for the first time that is an act of State.
As pointed out in Raja Rajender Chand vs Sukhi & other( ') that it matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler.
In all cases the result is the same.
Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised.
The principle upon which the liability of an erstwhile ruler is contested by the plea of an act of State "is an exercise of sovereign power against an alien and neither intended nor purporting to be legally founded.
A defence of this kind does not seek to justify the action with reference to the law but questions the very jurisdiction of the Courts to pronounce upon the legality or justice of the Action 's vide State of Saurashtra vs Memon Haji Ismail( ').
In Vaje Singh Ji Joravar Singh and others vs Secretary of State for India in Council( '), it was observed : "After a sovereign State has Acquired territory, either by conquest, or by cession under treaty, or by the occupation of territory theretofore unoccupied by a recognized ruler, or otherwise, an inhabitant of the territory can enforce in the Municipal Courts only such proprietary rights as the sovereign has conferred or recognized.
Even if a treaty of cession stipulates that certain, inhabitants shall enjoy certain rights that gives them no right which they can so enforce.
The meaning of a general statement in a proclamation that existing rights will be recognized is that the Government will recognize such rights as upon investigation it finds existed.
The Government does not thereby renounce its right to recognize only such titles as it considers should be recognized, nor confer upon the Municipal Courts any power to adjudicate in the matter".
"It is the acceptance of the claim which would have bound the new sovereign State and the act of State would then have come to an end.
But short of an acceptance, either express or implied, the time for the exercise of the Sovereign right to reject a claim was still open", 212 It appears to us that an act of State is an exercise of sovereign power over a territory which was not earlier subject to its sway.
When such an event takes place, and the territory is merged, although sovereign might allow the inhabitants to retain their old laws and customs or undertake to honour the liabilities etc., it could not be itself bound by them until it purported to act within the laws by bringing to an end the defence of 'act of State '.
The learned advocate for the appellant was unable to refer us to any authority which will justify any variation of this rule, in the case of liability incurred in respect of a public property of the erstwhile State which the successor State has taken over and retains as part ,of its public property.
The judgment of the High Court is in accord with the well recognized principles of law declared from time to time by this Court.
In our view the defence of 'Act of State ' however unreasonable and unjust it may appear to be can be successfully pleaded and sustained by Ist respondent to non suit the appellants.
The appeal is dismissed accordingly but without costs.
R.K.P.S. Appeal dismissed.
[/INST]The appellants constructed certain public buildings in a princely state and the Maharaja admitted the claim of the appellants and executed a promissory note for the amount claimed.
The princely State was merged with State of Madhya Pradesh and the State Government (respondent) took over the possession of the public buildings.
On the question of the liability of the respondent to pay the amount of the promissory note, HELD: (1) The fact that the appellants were asked by the respondent to supply details of their claim did not amount to an acceptance of the liability.
It was open to the respondent to examine and satisfy itself whether it should honour the liability or not and it could not be said that the State had waived its defence.
of Act of State.
(2) An Act of State is an exercise of sovereign power over a territory which was not earlier subject to its sway.
When such an event takes place and territory is merged, although the sovereign might allow the inhabitants to retain their old laws and customs or undertake to honour the liabilities, it could not be itself bound by them until it purported to act within the laws by bringing to an end the defence of Act of State. 'he rule applies even in case of a public property of the erstwhile State which the successor State takes over and retains as part of its public property.
[212 A] Raja Rajender Chand vs Sukhi & Ors.
State of Saurashtra vs Memon Haji Ismali, A. I.R. and Vaje Singh ji Joravar Singh & Ors.
vs Secretary of State for India, 51 I.A. 357, referred to.
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<s>[INST] Summarize the judgementivil Appeal No. 1252 of 1976.
Appeal by special Leave from the Judgment and Order dated 13 8 1975 of the Allahabad High Court in Second Appeal No. 179/ 75.
K. Gupta, for the Appellant.
S.T. Desai and R.B. Datar for the Respondent.
SHINGHAL, J.
This appeal, by special leave, is directed against the summary dismissal of defendant Piarey Lal 's second appeal on August 13, 1975.
As the leave has been limited to the question of interpretation of clauses (a) and (b) of section 30 of the U.P. Consolidation of Holdings Act, 1953, (hereinafter referred to as the Act), "for the pur pose of deciding whether the liability of the petitioner to specifically perform the contract of sale of the old hold ing was transferred to the new 'chak ' allotted to him on consolidation," it will be enough to state the facts which bear on it.
916 Respondent Hori Lal raised the suit for specific per formance of an agreement dated March 6, 1966, for the sale of six plote of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur.
It was alleged in the plaint that Rs. 3000/ were paid by the plaintiff Hori Lal in advance, and the balance of Rs. 2000/was to be paid at the time of the execution of the sale deed, within one year of the agreement.
It was also pleaded that as defendant Piarey Lal refused to execute the ' sale deed, the plaintiff was driven to the necessity of filing the suit for specific performance of the agreement for sale and, in the alterna tive, for the recovery of Rs. 3000/which had been paid as advance.
Defendant Piarey Lal denied the execution of the agreement for sale and the receipt of Rs. 3,000/ , and pleaded that as new plots had been allotted as a result of the consolidation of his holding under the Act, he could not perform the agreement for sale.
The trial court framed issues, inter alia, on questions relating to the execution of the agreement for sale, payment of Rs. 3000/ to the defendant, and the inability of the defendant to perform the contract.
That court held that the plaintiff had proved the agreement for sale and the payment of Rs. 3000/ ' .
It also held that the agreement for sale could be "enforced for plots allotted to the defendant in lieu of plot mentioned in the agreement in consolidation.
" It therefore decreed the suit for specific performance by its judgment dated August 23, 1973.
The Second Additional District Judge, Badaun, upheld the decree, and as the High Court has dismissed the second appeal as aforesaid, defendant Piarey Lal has come to this Court for a redress of his grievance by special leave.
As has been stated, the limited question for considera tion in this Court is whether the defendant was liable to specifically perform the contract for sale of his old hold ing even after its consolidation and the allotment of a 'chak ' ?
It appears that there was controversy in the Allahabad High Court on the question whether an agreement for sale, in the circumstances of a case like this, was rendered void under section 56 of the Contract Act because of the order of consolidation allotting new plots for the earlier plots in respect of which the agreement for sale had been executed.
A Single Judge of that Court took the view in Sugna and another vs Kali Ram and others(1) that the agreement became void and impossible of performance, and was not saved by section 30 of the Act.
A different view was however taken by another Single Judge in Chetan Singh and others vs Hira Singh and others(1).
The matter was re ferred to a Division Bench in Shanti Prasad vs Akhtar and another.(2) One of the Judges in the Division Bench was the Judge who had given the decision in Chetan Singh 's case.
The Bench held that the duty of the seller to execute the conveyance of the property agreed to be sold, was a liabil ity recognised by law and was enforceable as the liability "relates to the land mentioned in the agreement" and was "transferred to the new 'chak '" under section 30(b) of the Act.
The decision in Shanti Prasad 's case formed the basis of the decision of the first appellate (1) (2) (3) 917 court in this case, and that appears to be the reason why the High Court has dismissed the second appeal summarily.
The controversy therefore turns on the proper interpretation of section 30 of the Act which deals with the consequences which ensue on exchange of possession as a result of the allotment of a 'chak ' to the tenure holder.
Clauses (a) and (b) of section 30 of the Act provide as follows, "30.Consequences which shall ensue on exchange of possession.
With effect from the date on which a tenure holder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance with the provi sions of this Act, the following consequences shall ensue (a) the rights, title, interests and liabili ties (i) of the tensure holder entering, or deemed to have entered, into possession, and (ii) of the former tenure holder of the plots comprising the chak, in their respective original holdings shall cease; and (b) the tenure holder entering into pos session, or deemed to have entered into pos session, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source, till such source exists, as the former tenure holder of the plots compris ing the chak had in regard to them.
" It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of the tenure holder entering into possession of the 'chak ', as well as of the former tenure holder of the plots comprising the 'chak ', in their respective original holdings, and provides that those rights, title, interests and liabilities shall "cease", clause (b) provides that the tenure holder entering into possession of the 'chak ' shall have, in that 'chak ', the same rights, title, interests and liabilities "as he had in the original holdings.
" The expression 'chak ' has been defined in section 3(1 A) of the Act to mean "the parcel of land allotted to a tenure holder on consolidation."
The two clauses therefore are quite simple and clear, and ' do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), under the aforesaid agreement for the sale of his original holding ?
As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure holder to whom the 'chak ' has been allot ted, and of the former tenure holder 918 of the plots comprising the 'chak ' in their respective original holdings".
There is no controversy that this was so in the present case.
It is also no body 's case that the rights, title, and interests of the tenure holder entering into possession of his 'chak ' have any bearing on the con troversy relating to the specified performance of the agree ment for sale, for all that has been urged before us is that the defendant, as the tenure holder of the new holding or 'chak ' had the same "liabilities" in that 'chak ' as he had in the original holding.
What therefore remains for consider ation is whether, on the defendant 's entering into posses sion of his new land or 'chak ', there was the same liability "in" the new land as "in" the original holding.
It there fore to be examined whether, by virtue of the agreement for sale, any liability accrued "in" the original holding ? A cross reference to section 54 of the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It has however been specifically provided in ' the section that such a contract "does not, of itself, create any interest in or charge on such property.
" It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure holder.
That being so, there could be no occasion for the transfer of any such "liability in" the new land or 'chak ' of the defendant so aS to attract clause (b) of section 30 of the Act.
In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer ' of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property.
So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of clause (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by clause (a) or clause (b) of section 30 of the Act.
We have gone through the decision in Shanti Prasad 's case (supra), but we find that while the High Court took note of the fact that the right 's, title, interests and liabilities of the tenure holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the 'chak ' allotted to him, it lost sight of the significance of the word "in", and the afore said provisions of section 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether "the tenureholder" was subject to any liability "in respect of" his old holding.
That was why it fell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his 'chak ' on his entering into its possession.
As has been shown, that was an erroneous view which has to be rectified.
It may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was the subject matter of the agreement of sale, because, that holding had been substituted" by the 'chak '.
919 He also tried to argue that the 'chak ' allotted to the defendant by way of consolidation of his holding was the same as his original holding so that there was no occasion to invoke section 30 of the Act.
Counsel could not however support his argument by reference to the law, or the facts of the case.
Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of the Act.
It would thus appear that the plaintiff respondent 's suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view.
Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/ along with interest at 6 per cent per annum from the date of payment.
The appeal is allowed with costs, the impugned judgment of the High Court is set aside, and the suit of plaintiff respondent Hori Lal is dismissed in so far as it relates to specific performance of the agreement for sale.
It is however ordered that the defendant shall repay Rs. 3000/ to the plaintiff, along with interest at 6 per cent per annum from the date of payment, within three months from today.
M.R. Appeal allowed.
[/INST]An application was filed by the first respondent under section 162 clauses (v) and (vi) of the Indian Companies Act for the winding up of the Company on the grounds, inter alia, that the affairs of the Company were being mismanaged and that the directors had misappropriated the funds of the Company.
In the alternative it was prayed that action might be taken under section 153 C and appropriate orders be passed to protect the interests of the shareholders.
The High Court held (i) that the charges set out in the application bad been substantially proved and that it was a fit case for an order for winding up being made under section 162(vi) and (ii) that under the circumstances action could be taken under section 153 C and accordingly it appointed two administrators with all the powers of directors to look after the affairs of the Company.
On appeal by special leave to the Supreme Court by the Company it was contended that the 1067 application under section 153 C was not maintainable inasmuch as there was no proof that the applicant had obtained the consent of requisite number of shareholders as provided in sub clause (3)(a)(i) to section 153 C, that clause providing that a member applying for relief must obtain the consent in writing of not less than one hundred members of the Company or not less than one tenth of the members of the Company whichever is less.
It was alleged that thirteen members who had given their consent to the filing of the application had subsequently withdrawn their consent.
Held that the validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation.
The withdrawal of consent by thirteen of the members, even if true, could not affect either the right of the applicant to proceed with the application or the juris diction of the court to dispose of it on its own merits.
Held further that before taking action under section 153 C the court must be satisfied that circumstances exist on which an order for winding up could be made under section 162 and where therefore the facts proved do not make out a case for winding up under section 162, no order can be passed under section 153 C.
The words "just and equitable" in section 162(vi) are not to be construed ejusdem generis with the matters mentioned in clauses (i) to (v) of the section.
If there is merely a misconduct of the directors in misappropriating the funds of the Company an order for winding up would not be just and equitable but if in addition to such misconduct, circumstances exist which render it desirable in the interests of the shareholders that the Company should be wound up, section 162(vi) would be no bar to the jurisdiction of the court to make such an order.
The order for winding up was just and equitable in the cir cumstances of the present case.
In re Anglo Greek Steam Company ([1866] L.R. 2 Eq. 1), In re Diamond Fuel Company ([1879] , Spackman 's Case ([1849] 1 M. & G. 170), Be Suburban Hotel Company ([1867] , Be European Life Assurance Society ([1869] I,.
R. , In re Amalgamated Syndicate ([1897] 2 Ch.
600) and Loch vs John Blackwood Ltd. ([1924] A. C. 783, 790), referred to.
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<s>[INST] Summarize the judgementn No. 105 of 1961.
Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
A. V. Viswanatha Sastri, M. K. B. Namburdripat and M. R. K. Pillai" for the petitioner.
M. C. Setalvad Attorney General of India, K. K. Mathew, Advocate General for the State of Kerala, Sardar Bahadur, George Pudissary and V. A. Seyid Muhammad, for the respondent.
December 5.
The Judgment of P.B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo and K. C. Das Gupta, JJ., was delivered by Gajendragadkar, J. N. Rajagopala Ayyangar, J., delivered a separate judgment.
GAJENDRAGADKAR, J.
This petition has been filed under article 32 of the Constitution and it seeks to challenge the validity of the Kerala Agrarian Relations Act, 1960 (Act 4 of 1961) (hereafter called the Act).
The petitioner owns about 1, 250 acres of land in the Kerala State.
These lands were originally situated within the erstwhile State of Cochin which now forms part of the Kerala State.
757 Out of the lands owned by the petitioner nearly 900 acres are classified in the land records maintained by the State as Pandaravaka holdings while the remaining lands are classified as Puravaka holdings.
By his petition the petitioner claims a declaration that the Act is ultra vires and unconstitutional and prays for a writ of certiorari or other appropriate writ, order or direction against the respondent, the State of Kerala, restraining it from implementing the provisions of the Act.
It appears that a notification has been issued by the respondent on February 15, 1961, directing the implementation of sections 1 to 40, 57,58,60,74 to 79 as well as sections 81 to 95 of the Act from the date of the notification.
The petitioner contends that the notification issued under the Act is also ultra vires, unconstitutional and illegal and as such he wants an appropriate writ or order to be issued quashing the said notification.
That in brief is the nature of the reliefs claimed by the petitioner.
The Kerala Agrarian Relations Bill which has ultimately become the Act was published in the Government Gazette of Kerala on December 18, 1957, and was introduced in the Kerala Legislative Assembly on December 21, 1957, by the Communist Government which was then in power.
The bill was discussed in the Assembly and was ultimately passed by it on June 10, 1959.
It was then reserved by the Governor of the State for the assent of the President under article 200 of the Constitution.
Meanwhile, on July 31, 1959 the President issued a proclamation under article 356 and the Assembly was dissolved.
In February 1960 mid term general elections took place in Kerala and as a result a coalition Government came into power.
On July 27,1960, the President for whose assent the bill was pending sent it back with his message requesting the Legislative Assembly to reconsider the bill in the light of the specific amendments suggested by him.
On August 2, 1960, the Governor returned the bill 758 remitted by the President with his message and the amendments suggested by him to the new Assembly for consideration.
On September 26, 1960, the amendments suggested by the President were taken up for consideration by the Assembly and ultimately on October 15, 1960, the bill as amended in the light of the President 's recommendations was passed by the Assembly.
It then received the assent of the President on January 21, 1961, and after it thus became law the impugned notification was issued by the respondent on February 15, 1961.
On March 9, 1961, the present writ petition was filed.
Broadly stated three points fall to be considered in this petition.
The petitioner challenges the validity of the Act on the preliminary ground that the bill which was pending before the President for his assent at the time when the Legislative Assembly was dissolved lapsed in consequence of the said dissolution and so it was not competent to the President to give his assent to a lapsed bill with the result that the said assent and all proceedings taken subsequent to it are constitutionally invalid.
If this preliminary point is upheld no further question would arise and the petition will have to be allowed on that ground alone.
If however, this preliminary challenge to the validity of the bill does not succeed the respondent raises its preliminary objection that the Act is protected under article 31 A (1) (a) and as such its validity cannot be challenged on the ground that it is inconsistent with, or takes away, or abridges, any of the rights conferred by articles 14, 19 and 31.
This point raises the question as to whether the properties owned and possessed by the petitioner are an "estate" within the meaning of article 31 A (2) (a).
If this question is answered in the affirmative then the Act would be protected under article 31 A (1) (a) and the challenge to its validity on the ground that it is inconsistent with articles 14,19 and 31 will not 759 survive.
If, however, it is held that the whole or any part of the properties with which the petitioner is concerned is outside the purview of "estate" as described by article 31 A (2) (a) the challenge to the validity of the Act on the merits would have to be considered.
The petitioner contends that the material provisions of the Act contravenes the fundamental rights guaranteed by Arts, 14, 19 (1) (f) and 31 of the Constitution.
That is how three principal points would call for our decision in the present writ petition.
Let us first examine the argument that the bill which was pending the assent of the President at the time when the legislative Assembly was dissolved has lapsed and so no further proceedings could have been validly taken in.
respect of it.
In support of this argument it is urged that wherever the English parliamentary form of Government prevails the words "prorogation" and "dissolution" have acquired the status of terms of art and their significance and consequence are well settled.
The argument is that if there is no provision to the contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India.
There is no doubt that, in England, in addition to bringing a session of Parliament to a close prorogation puts and end to all business which is pending consideration before either House at the time of such prorogation; as a result any proceedings either in the House or in any Committee of the house lapse with the session Dissolution of Parliament is invariably preceded by prorogation, and what is true about the result of prorogation is, it is said, a fortiori true about the result of dissolution (1).
Dissolution of Parliament is sometimes described as "a civil death of Parliament".
Ilbert, in his work on 760 'Parliament ', has observed that "prorogation means the end of a session (not of a Parliament)"; and adds that "like dissolution, it kills all bills which have not yet passed".
He also describes dissolution as an "end of a Parliament (not merely of a session) by royal proclamation", and observes that "it wipes the slate clean of all uncompleted bills or other proceedings".
Thus, the petitioner contends that the inevitable conventional consequence of dissolution of Parliament is that there is a civil death of Parliament and all uncompleted business pending before Parliament lapses.
In this connection it would be relevant to see how Parliament is prorogued.
This is how prorogation is described in May 's "Parliamentary Practice": "If Her Majesty attends in person to prorogue Parliament at the end of the session.
the same ceremonies are observed as at the opening of Parliament: the attendance of the Commons in the House of Peers is commanded; and, on their arrival at the bar, the Speaker addresses Her Majesty, on presenting the supply bills, and adverts to the most important measures that have received the sanction of Parliament during the session.
The royal assent is then given to the bills which are awaiting that sanction, and Her Majesty 's Speech is read to both Houses of Parliament by herself or by her Chancellor; after which the Lord Chancellor, having received directions from Her Majesty for that purpose, addresses both Houses in this manner: "My Lords and Members of the House of Commons, it is Her Majesty 's royal will and pleasure that this Parliament be prorogued (to a certain day) to be then here holden; and this Parliament is accordingly prorogued" (2).
According to May, the effect of prorogation is at once to suspend all business until Parliament shall be summoned again.
Not only are the proceedings of Parliament at an end but all proceedings pending at the time are quashed except 761 impeachment by the Commons and appeals before the House of Lords.
Every bill must therefore be renewed after prorogation as if it had never been introduced.
To the same effect are the statements in Halsbury 's "Laws of England" (Vide: Vol.
28, pp. 371, 372, paragraphs 648 to 651).
According to Anson, "prorogation ends the session of both Houses simultaneously and terminates all pending business.
A bill which has passed through some stages but which is not ripe for royal assent at the date of prorogation must begin at the earliest stage when Parliament is summoned again and opened by a speech from the throne" (1).
It would thus be seen that under English parliamentary practice bills which have passed by both Houses and are awaiting assent of the Crown receive the royal assent before the Houses of Parliament are prorogued.
In other words, the procedure which appears to be invariably followed in proroguing and dissolving the Houses shows that no bill pending royal assent is left outstanding at the time of prorogation or dissolution.
That is why the question as to whether a bill which is pending assent lapses as a result of prorogation or dissolution does not normally arise in England.
Thus, there can be no doubt that in England the dissolution of the Houses of Parliament kills all business pending before either House at the time of dissolution.
According to the petitioner, under our Constitution the result of dissolution should be held to be the same; and since the bill in question did not receive the assent of the President before the Assembly was dissolved it should be held that the said bill lapsed.
This argument has taken another form.
The duration of the Legislative Assembly is prescribed by article 172(1), and normally at the end of five years the life of the Assembly would come to an end.
Its life could come to an end even before the expiration of the said period 762 of five years if during the said five years the President acts under article 356.
In any case there is no continuity in the personality of the Assembly where the life of one Assembly comes to an end and another Assembly is in due course elected.
If that be so, a bill passed by one Assembly cannot, on well recognised principles of democratic government.
be brought back to the successor Assembly as though a change in the personality of the Assembly had not taken place.
The scheme of the Constitution in regard to the duration of the life of State Legislative Assembly, it is urged, supports the argument that with the dissolution of the Assembly all business pending before the Assembly at the date of dissolution must lapse.
This position would be consonant with the well recognised principles of democratic rule.
The Assembly derives its sovereign power to legislate essentially because it represents the will of the citizens of the State, and when one Assembly has been dissolved and another has been elected in its place, the successor Assembly cannot be required to carry on with the business pending before its predecessor, because that would assume continuity of personality which in the eyes of the Constitution does not exist.
Therefore, sending the bill back to the successor Assembly with the message of the President would be inconsistent with this basic principle of democracy.
It is also urged that in dealing with the effect of the relevant provisions of the legislative procedure prescribed by article 196 it would be necessary to bear in mind that the powers of the legislature which are recognised in England will also be available to the State Legislature under article 194 (3).
The argument is that whether or not a successor Legislative Assembly can carry on with the business pending before its predecessor at the time of its dissolution is really 763 a matter of the power of the Legislature and as such the powers of the Legislative Assembly shall be "such as may from time to time be defined, by the Legislature by law, and, until so defined, shall be those of the House of Commons of Parliament of the United Kingdom, and of its Members and Committees, at the commencement of this Constitution".
In other words, this argument assumes that the conventional position with regard to the effect of dissolution of Parliament which prevails in England is expressly saved in India by virtue of article 194(3) until a definite law is passed by the State Legislature in that behalf to the contrary.
It would be noticed that this argument purports to supply a constitutional basis for the contention which we have already set out that the word "dissolution" is a term of art and its effect should be the same in India as it is in England.
It may incidentally be pointed out that the corresponding provisions for our Parliament are contained in article 104(3).
As we have already mentioned there is no doubt that dissolution of the House of Parliament in England brings to a close and in that sense kills all business pending before either House at the time of dissolution; but, before accepting the broad argument that this must inevitably be the consequence in every country which has adopted the English Parliamentary form of Government it would be necessary to enquire whether there are any provisions made by our Constitution which deal with the matter; and if the relevant provisions of our Constitution provide for the solution of the problem it is that solution which obviously must be adopted.
This position is not disputed.
Therefore, in determining the validity of the contentions raised by the petitioner it would be necessary to interpret the provisions of article 196 and determine their effect.
The corresponding provisions in regard to the 764 legislative procedure of Parliament are contained in article 107.
The argument based on the provisions of article 194(3) is, in our opinion, entirely misconceived.
The powers, privileges and immunities of State Legislatures and their members with which the said Article deals have no reference or relevance to the legislative procedure which is the subject matter of the provisions of article 196.
In the context, the word 'powers ' used in article 194(3) must be considered along with the words "privileges and immunities" to which the said clause refers, and there can be no doubt that the said word can have no reference to the effect of dissolution with which we are concerned.
The powers of the House of the Legislature of a State to which reference is made in article 194(3) may, for instance, refer to the powers of the House to punish contempt of the House.
The two topics are entirely different and distinct and the provisions in respect of one cannot be invoked in regard to the other.
Therefore, there is no constitutional basis for the argument that unless the Legislature by law has made a contrary provision the English convention with regard to the effect of dissolution shall prevail in this country.
What then is the result of the provisions of article 196 which deals with the legislative procedure and makes provisions in regard to the introduction and passing of bills? Before dealing with this question it may be useful to refer to some relevant provisions in regard to the State Legislature under the constitution.
Article 168 provides that for every State there shall be a Legislature which shall consist of the Governor and (a) in the States of Bihar, Bombay, Madhya Pradesh, Madras, Mysore, Punjab, Uttar Pradesh and West Bengal, two Houses, and (b) in other States, one House.
In the present petition we are concerned with the State of Kerala which has only one House 765 Article 168 (2) provides that where there are two House of the Legislature of a State.
one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly.
Article 170 deals with the composition of the Legislative Assembly.
and article 171 with that of the Legislative Council.
Article, 172 provides for the duration of the State Legislatures.
Under article 172(1) the normal period for the life of the Assembly is five years unless it is sooner dissolved.
Article 172(2) provides that the Legislative Council of a State shall not be subjected to dissolution, but as nearly as possible one third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
It would thus be seen that under the Constitution where the State Legislature is bicameral the Legislative Council is not subject to dissolution and this is a feature which distinguishes the State Legislatures from the England Houses of Parliament.
When the Parliament is dissolved both the Houses stand dissolved, whereas the position is different in India.
In the States with bicameral Legislature only the Legislative Assembly can be dissolved but not the Legislative Council.
The same is the position under article 83 in regard to the House of the People and the Council of States.
This material distinction has to be borne in mind in construing the provisions of article 196 and appreciating their effect.
Article 196 reads thus: "196.
(1) Subject to the provisions of Articles 198 and 207 with respect to Money Bills and other financial Bills, a Bill may originate in either House of the Legislature of a State which has a Legislative Council.
766 (2) Subject to the provision of articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses either without amendment or with such amendments only as are agreed to by both Houses.
(3) A Bill pending in the Legislature of a State shall not lapse by reason of the prorogation of the House or Houses thereof.
(4) A Bill pending in the Legislative Council of a State which has not been passed by the Legislative Assembly shall not lapse on a dissolution of the Assembly.
(5) A Bill which is pending the Legislative Assembly of a State, or which having been passed by the Legislative Assembly is pending in the Legislative Council, shall lapse on a dissolution of the Assembly".
With the first two clauses of this Article we are not directly concerned in the present petition.
It is the last three clauses that call for our examination Under cl.
(3) a Bill pending in the Legislature of a State will not lapse by reason of the prorogation of the House or Houses thereof.
Thus, this clause marks a complete departure from the English convention inasmuch as the prorogation of the House or Houses does not affect the business pending before the Legislature at the time of prorogation.
In considering the effect of dissolution on pending business it is therefore necessary to bear in mind this significant departure made by the Constitution in regard to the effect of prorogation.
Under this clause the pending business may be pending either in the Legislative Assembly or in the Legislative Council or may be pending the assent of the Governor.
At whichever stage the 767 pending business may stand, so long as it is pending before the Legislature of a state it shall not lapse by the prorogation of the Assembly.
Thus, there can be no doubt that unlike in England prorogation does not wipe out the pending business.
Clause (4) deals with a case where a Bill is pending in the Legislative Council of a State and the same has not been passed by the Legislative Assembly; and it provides that such a bill pending before the Legislative Council of a State shall not lapse on the dissolution of the Legislative Assembly.
It would be noticed that this clause deals with the case of a Bill which has originated in the Legislature Council and has yet to reach the Legislative Assembly; and so the Constitution provides that in regard to such a Bill which has yet to reach, and be dealt with by, the Legislative Assembly the dissolution of the Legislative Assembly will not affect its further progress and it will not lapse despite such dissolution.
That takes us to cl.
This clause deals with two categories of cases.
The first part deals with Bills which are pending before the Legislative Assembly of a State, and the second with Bills which having been passed by the Legislative Assembly are pending before the Legislative Council.
The Bills falling under both the clause lapse on the dissolution of the Assembly.
The latter part of cl.
(5) deals with cases of Bills which are supplemental to the cases covered by cl.
Whereas cl.(4) dealt with Bills which had originated in the Legislative Council the latter part of cl.(5) deals with Bills which, having originated in the Legislative Assembly, have been passed by it and are pending before the Legislative Council.
Since cl.
(4) had provided that Bills falling under it shall not lapse on dissolution of the Assembly it was thought necessary to provide as a matter of precaution that Bills falling under the latter part of cl.
(5) shall lapse on the dissolution of the Assembly.
768 That leaves part 1 of cl.
(5) to be considered.
This part may cover three classes of cases.
It may include a Bill which is pending before the Legislative Assembly of a State which is unicameral and that is the case with which we are concerned in the present proceedings.
It may also include a case of a Bill which is pending before the Legislative Assembly of a state which is bicameral; or it may include a case of a Bill which has been passed by the Legislative Council in a bicameral State and is pending before the Legislative Assembly.
In all these cases the dissolution of the Assembly leads to the consequence that the Bills lapse.
It is significant that whereas cl.
(3) deals with the case of a Bill pending in the Legislature of a State, cl.
(5) deals with a Bill pending in the Legislative Assembly of a State or pending in the Legislative Council; and that clearly means that a Bill pending assent of the Governor or the President is outside cl.
If the Constitution makers had intended that a Bill pending assent should also lapse on the dissolution of the Assembly a specific provision to that effect would undoubtedly have been made.
Similarly, if the Constitution makers had intended that the dissolution of the Assembly should lead to the lapse of all pending business it would have been unnecessary to make the provisions of cl.
(5) at all.
The cases of Bills contemplated by cl.
(5) would have been governed by the English convention in that matter and would have lapsed without a specific provision in that behalf.
Therefore, it seems to us that the effect of cl.
(5) is to provide for all cases where the principle of lapse on dissolution should apply.
If that be so, a Bill pending assent of the Governor or President is outside cl.
(5) and cannot be said to lapse on the dissolution of the Assembly.
It is however, contended by the petitioner that if cl.
(5) was intended to deal with all cases 769 where pending business would lapse on the dissolution of the Assembly it was hardly necessary to make any provision by cl.
There is no doubt in force in the contention; but, on the other hand it may have been thought necessary to make a provision for Bill pending in the Legislative Council of a State because the Legislative Council of a continuing body not subject to dissolution and the Constitution wanted to make a specific provision based on that distinctive character of the Legislative Council.
Having made a provision for a Bill originating and pending in the Legislative Council by cl.
(4) it was thought necessary to deal with a different category of cases where Bills have been passed by the Legislative Assembly and are pending in the Legislative Council; and so the latter part of cl.
(5) was included in cl.
On the other hand, if the petitioner 's contention is right cls.
(3) and (4) of article 196 having provided for cases were business did not lapse it was hardly necessary to have made any provisions by cl.
(5) at all.
In the absence of cl.
(5) it would have followed that all pending business, on the analogy of the English convention, would laps on the dissolution of the Legislative Assembly.
It is true that the question raised before us by the present petition under article 196 is not free from difficulty but, on the whole, we are inclined to take the view that the effect of cl.
(5) is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assembly.
In that sense we read cl.
(5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly.
If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld.
In this connection it is necessary to consider articles 200 and 201 which deal with Bills reserved for the assent of the Governor or the President.
770 Article 200 provides, inter alia, that when a Bill has been passed by the Legislative Assembly of a State it shall be presented to the Governor, and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.
The proviso to this Article requires that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent the Governor shall not withhold assent therefrom.
The Second proviso deals with cases where the Governor shall not assent to but shall reserve for the consideration of the President any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.
Article 201 then deals with the procedure which has to be adopted when a Bill is be assented to by the President.
Under the said Article the President shall declare either that he assents to the Bill or that he withholds assent therefrom.
The proviso lays down, inter alia, that the President may direct the Governor to return the Bill to the House together, with such message as is mentioned in the first proviso to article 200, and when a Bill is so returned the House shall reconsider it accordingly within a period of six months from the date of receipt of such message, and if it is again passed by the House with or without amendment it shall be presented again to the President for his consideration.
The provisions of 771 these two Articles incidentally have a bearing on the decision of the question as to the effect of article 196.
The corresponding provision for Parliamentary Bill is contained in article 111.
It is clear that if a Bill pending the assent of the Governor or the President is hold to lapse on the dissolution of the Assembly unlikely that a fair number of Bills which may have been passed by the Assembly, say during the last six months of its existence, may be exposed to the risk of lapse consequent on the dissolution of the Assembly, unless assent is either withheld or granted before the date of the dissolution.
If we look at the relevant provisions of articles 200 and 201 from this point of view it would be significant that neither Article provides for a time limit within which the Governor or the President should come to a decision on the Bill referred to him for his assent.
Where it appeared necessary and expedient to prescribe a time limit the Constitution has made appropriate provisions in that behalf (vide : article 197 (1)(b) and (2)(b)).
In fact the proviso to article 201 requires that the House to which the Bill is remitted with a message from the President shall reconsider it accordingly within a period of six months from the date of the receipt of such message.
Therefore, the failure to make any provision as to the time within which the Governor or the President should reach a decision may suggest that the Constitution makers knew that a Bill which was pending the assent of the Governor or the President did not stand the risk of laps on the dissolution of the Assembly.
That is why no time limit was prescribed by articles 200 and 201.
Therefore, in our opinion, the scheme of articles 200 and 201 supports the conclusion that a Bill pending the assent of the Governor or the President does not lapse as a result of the dissolution of the Assembly and that incidentally shows that the provisions of article 196(5) are exhaustive.
772 At this stage it is necessary to examine another argument which has been urged against the validity of the Act on the strength of the provisions of articles 200 and 201.
It is urged that even if it be held that the Bill does not lapse, the Act is invalid because it has been passed in contravention of articles 200 and 201.
The argument is that the scheme of the said two Articles postulates that the Bill which is sent back with the message of the President ought to be sent back to the same house that originally passed it.
It is pointed out that when the message is sent by the President the House the requested to reconsider the Bill and it is provided that if the Bill is again passed by the House the Governor shall not withhold assent therefrom.
This argument proceeds on the basis that the concept of reconsideration must involve the identity of the House, because unless the House had considered it in the first instance it would be illogical to suggest that it should reconsider it.
Reconsideration means consideration of the Bill again and that could be appropriately done only if it is the same House that should consider it at the second stage.
The same comment is made on the use of the expression "if the Bill is passed against.
It is also urged that it would be basically unsound to ask the successor House to take the Bill as it stands and not give it an opportunity to consider the merits of all the provisions of the Bill.
We are not impressed by these pleas.
When the successor House is considering the Bill it would be correct to say that the Bill is being reconsidered because in fact it had been considered once.
Similarly, when it is said that if the Bill is passed again the Governor shall not withhold assent therefrom it does not postulate the existence of the same House because even if it is the successor House which passes it is true to say that the Bill has been passed again because in fact it had been passed on an early occasion.
Besides, if the effect of article 196 is that the Bills 773 pending assent do not lapse on the dissolution of the House then relevant provisions of article 200 must be read in the light of that conclusion.
In our opinion, there is nothing in the proviso to article 201 which is inconsistent with the basic concept of democratic Government in asking a successor House to reconsider the Bill with the amendments suggested by the President because the proviso makes it, perfectly clear that it is open to the successor House to throw out the Bill altogether.
It is only if the Bill passed by the successor House that the stage is reached to present it to the Governor or President for his assent, not otherwise.
Therefore, there is no substance in the argument that even if the effect of article 196 is held to be against the theory of lapse propounded by the petitioner the Bill is invalid because it has been passed in contravention of the provisions of articles 200 and 201.
This argument proceeds on the assumption that the House to which the Bill is sent must be the same House and that assumption, we think is not well founded.
We would accordingly hold that the preliminary contention raised against the validity of the Bill cannot be sustained.
That takes us to the point raised by the respondent that the Act attracts the protection of article 31A (1)(a) and so is immune from any challenge under articles 14, 19 and 31.
There is no doubt that if the Act falls under article 31A(1)(a) its validity cannot be impugned on the ground that it contravenes articles 14, 19 and 31; but the question still remains: Does the Act fall under article 31A (1) (a) ?; and the answer to this question depends on whether or not the properties of the petitioner fall within article 31A(2)(a).
Before dealing with this point it is necessary to set out the relevant provisions of article 31A (2) Article 31A(2) reads thus: "31A (2).
In this article (a) the expression 'estate ' shall, in relation to any local area, have the same meaning 774 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, and in the States of Madras and Kerala any janmam right; (b) the expression 'rights ', in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor tenure holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue.
" Article 31A was added by the Constitution (First Amendment) Act, 1951, with retrospective effect.
Similarly, the portion in italics was added by the Constitution (Forth Amendment) Act, 1955, with retrospective effect.
It is well known that the Constitution First Amendment of 1951 was made in order to validate the acquisition of zamindari estates and the abolition of permanent settlement.
In other words the effect of the First Amendment was to provide that any law which affected the right of any proprietor or intermediate holder in any estate shall not be void on the ground that its provisions were inconsistent with any of the fundamental rights guaranteed by part III of the Constitution.
The acquisition of zamindnri rights and the abolition of permanent settlement, however, was only the first step in the matter of agrarian reform which the Constitution makers had in mind.
When the first zamindari abolition laws were passed in pursuance of the programme of social welfare legislation their validity was impugned on the ground that they contravened the provisions of articles 14, 19 and 31.
In order to save the impugned legislation from any such challenge articles 31A and 31B and the Ninth Schedule were enacted by the Constitution First Amendment Act; and it is in that context that article 31A (2) (a) 775 and (b) were also enacted.
After the zamindari abolition legislation was thus saved the Constitution makers thought of enabling the State Legislatures to take the next step in the matter of agrarian reform.
As subsequent legislation passed by several States shows the next step which was intended to be taken in the matter of agrarian reform was to put a ceiling on the extent of individual holding of agricultural land.
The inevitable consequence of putting a ceiling on individual occupation or ownership of such agricultural land was to provide for the acquisition of the land held in excess of the prescribed maximum for distribution amongst the tillers of the soil.
It is in the light of this background that we have to determine the question as to whether the property with which the petitioner is concerned constitutes an estate or rights in relation to an estate under cl.
(2)(a) or (b).
The petitioner contends that in interpreting the expression "estate" we must have regard to the fact that originally it was intended to cover case of zamindars and other intermediaries who stood between the State and the cultivator and who were generally alienees of land revenue; and so it is urged that it is only what may be broadly described as landlord tenures which fall within the scope of the expression "estate ".
It is conceded that the expression "rights in relation to an estate " as it now stands is very broad and it includes the interest of a raiyat and also an under raiyat; but it is pointed out that the said rights, however comprehensive and broad they may be, must be rights in relation to an estate, and unless the property satisfies the test which would have been reasonably applied in determining the scope of "estate" in 1950 the amendment made in cl.
(2)(b) will not make the denotation of the word "estate" any broader.
In other words, the argument is that the denotation which the expression "estate " had in 1950 continues to be the same even after the 776 amendments of 1965 because no suitable amendment has been made in cl.
(2) (a).
But the infirmity in this argument is that the limitation which the petitioner seeks to place on the denotation of the expression "estate" is not justified by any words used in cl.
(2)(a) at all; it is introduced by reading cls.
(2)(a) and (b) together, and that would not be reasonable or legitimate.
In deciding what an "estate" means in cl.
(a) we must in the first instance construe cl.
(a) by itself.
In dealing with the effect of cl.
(2) (a) two features of the clause are significant.
First, that the definition has been deliberately made inclusive, and second, that its scope has been left to be determined not only in the light of the content of the expression "estate " but also in the light of the local equivalent of the expression "estate" as may be found in the existing law relating to land tenure in force in that area.
The Constitution makers were fully conscious of the fact that the content of the expression "estate" may not be identical in all the areas in this country and that the said concept may not be described by the same word by the relevant existing law; and so the decision of the question as to what an estate is has been deliberately left rather elastic.
In each case the question to decide would be whether the property in question is described as an estate in the terminology adopted by the relevant law.
If the said law uses the word "estate" and defines it the there is no difficulty in holding the property described by the local law as an estate is an estate for the purpose of this clause.
The difficulty arises only where the relevant local law does not describe any agricultural property expressly as an estate.
It is conceded that though no agricultural property may be expressly described as an estate by the local law, even so there may be some properties in the area which may constitute an 777 estate under cl.
(2) (a); and so in deciding which property constitutes an estate it would be necessary to examine its attributes and essential features and enquire whether it satisfies the test implied by the expression "estate " as used in cl.
(2) (a) In this connection it is pertinent to remember that the Constitution makers were aware that in several local areas in the country where the zamindari tenure did not prevail the expression "estate" as defined by the relevant law included estates which did not satisfy the requirement of the presence of intermediaries, and yet cl.
(2)(s) expressly includes estates in such areas within its purview and that incidentally shows that the concept of " estate " as contemplated by cl.
(2)(a) is not necessarily conditioned by the rigid and inflexible requirement that it must be landlord tenure of the character of zamindari estate.
That is why, treating the expression "estate" as of wide denotation in every case we will have to enquire whether there is a local definition of "estate" prevailing in the relevant existing law; if there is one that would determine the nature of the property.
If there is no definition in the relevant existing law defining the word "estate" as such we will have to enquire whether there is a local equivalent, and in that connection it would be necessary to consider the character of the given agricultural property and its attributes and then decide whether it can constitute an estate under cl.
(2)(a).
If the expression "estate" is construed in the narrow sense in which the petitioner wants it to be construed then it may not be easy to reconcile the said narrow denotation with the wide extent of the word "estate" as is defined in some local definitions of the word "estate ".
Therefore, in deciding the question as to whether the properties of the petitioner are an "estate" within the meaning of article 31A(2)(a) we are not prepared to adopt 778 the narrow construction that the estate must always and in every case represent the estate held by zamindars or other similar intermediaries who are the alienees of land revenue.
This question can also be considered from another point of view.
As we will presently point out, decisions of this Court in relation to agricultural estates existing in areas where the zamindari tenure does not prevail clearly show that the definitions in the relevant existing laws in those areas include properties within the expression "estate" despite the fact that the condition of the existence of the intermediary is not satisfied by them, and so there can be no doubt that even in such ares if the definition of the word "estate" includes specified agricultural properties they would be treated as estates under cl.
(2)(a).
Now just consider what would be the position in areas where the zamindari tenure does not prevail and where the relevant existing law dose not contain a definition of an "estate" as such.
According to the petitioner 's argument where in such a case it is necessary to find out a local equivalent of an estate the search for such a local equivalent would be futile, because in the area in question the condition or test of the presence of intermediaries may not be satisfied and that would mean that the main object with which the Constitution First and Fourth Amendment Acts of 1951 and 1955 were passed would be of no assistance to the State Legislatures in such local areas.
If the State Legislatures in such local areas want to enact a law for agrarian reform they would not be able to claim the benefit of article 31 A (1)(a).
Indeed, the petitioner concedes that on his construction of cl.
(2) (a) the intended object of the amendments may not be carried out in certain areas where the existing relevant law does not define an estate as such; but his argument is that the Constitution makers failed to give effect to their intention 779 because they omitted to introduce a suitable amendment in cl.
(2)(a).
On a fair construction of cl.
(2) (a) we do not think that we are driven to such a conclusion.
Therefore, we are not inclined to accept the petitioner 's narrow interpretation of the word "estate" in cl.
(2) (a).
It is necessary therefore to have some basic idea of the meaning of the word "estate" as used in article 31A(2) (a).
As we have said already, where the word "estate" as such is used in the existing law relating to land tenures in force in a particular area, there is no difficulty and the word "estate" as defined in the exiting law would have that meaning for that area and there would be no necessity for looking for a local equivalent.
But where the word "estate" as such is not defined in an existing law it will be necessary to see if some other term is defined or used in the existing law in a particular area which in that area is the local equivalent of the word "estate".
In that case the word "estate" would have the meaning assigned to that term in the existing law in that area.
To determine therefore whether a particular term defined or used in a particular area is the local equivalent of the word "estate" as used in article 31 A (2) (a) it is necessary to have some basic concept of the meaning of the word "estate" as used in the relevant Article of the Constitution.
It seems to us that the basic concept of the word "estate" is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part.
If therefore a term is used or defined in any existing law in a local area which corresponds to this basic concept of "estate" that would be the local equivalent of word "estate" in that area.
It is not necessary.
that there must be an intermediary in an estate before it can be called an estate within the meaning of article 31 A (2)(a); it is true that in 780 many cases of estate such intermediaries exist, but there are many holders of small estates who cultivate their lands without any intermediary whatever.
It is not the presence of the intermediary that determines whether a particular landed property is an estate or not; what determines the character of such property to be an estate is whether it comes within the definition of the word "estate" in the existing law in a particular area or is for the purpose of that area the local equivalent of the word "estate" irrespective of whether there are intermediaries in existence or not.
This in our opinion, is also borne out by consideration of the relevant decisions of this Court to which we will now turn.
The decisions of this Court where this question has been considered lend support to the construction of the word "estate" for which the respondent contends.
In Sri Ram Ram Narain Medhi vs The State of Bombay (1) the constitutional validity of the Bombay Tenancy and Agricultural Lands (Amendment) Act 1956 (Bombay Act XIII of 1956) amending the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948), was considered by this Court.
Section 2(5) of the Bombay Land Revenue Code, 1879, had defined the word "estate" as meaning any interest lands and the aggregate of such interested vested in a person or aggregate of persons capable of holding the same.
This Court held that the Bombay Land Revenue Code was the existing law relating to land tenures in force in the State of Bombay and that the definition of the word "estate" as prescribed by s.2(5) had the meaning of any interest in land and it was not confined merely to the holdings of landholders of alienated lands.
The expression applied not only to such estate holders but also to land holders and occupants of unalienated lands".
It would be noticed that section 2(5) referred to "any 781 interest in lands" and the expression "lands" was undoubtedly capable of comprising within its ambit alienated and unalienated lands.
The argument urged by the petitioner in that case in attacking the validity of the impugned Act in substance was that having regard to the narrow denotation of the "estate" used in article 31A(2)(a) the broader construction of section 2(5) of the Bombay Land Revenue Code should not be adopted, and in construing what is the local equivalent of the expression "estate" in Bombay the narrow construction of section 2(5) should be adopted and its operation should be confined to alienated lands alone.
This contention was rejected and it was held that the estate as defined was not confined merely to the holdings of landholders of alienated lands.
It is true that the decision proceeded substantially on the interpretation of section 2(5) of the local Act ; but it may be observed that if the denotation of the word "estate" occurring in article 31A(2)(a) was as narrow as is suggested to by the petitioner before us this Court would have treated that as a relevant and material fact in considering the contention of the petitioner before it that the narrow construction of section 2(5) should be adopted.
There is no doubt that the property which was held to be an estate in Medhi 's case (1) would not be an estate within the narrow meaning of the word as suggested by the petitioner.
In Atma Ram vs The State of Punjab (2), this Court had occasion to consider the meaning of the expression "estate" in the light of the Punjab Land Revenue Act, 1887.
Section 3(1) of the said Act had provided that an "estate" means any area (a) for which a separate record of rights has been made, or (b) which has separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed, or(c) which the State Government may by general rule or special order, declare to be an estate.
Section 3(3) which is also relevant provided 782 that "holding" means a share or portion of an estate held by one landowner or jointly by two or more landowners.
One of the arguments urged by the petitioner before the Court was that a part of the holding was not an estate within the meaning of section 3(1) of the local Act.
This argument was rejected.
In dealing with the question as to whether the property held by the petitioner was an estate under the article 31A(2)(a) it became necessary for the Court to consider the amplitude of the expression "any estate or of any rights therein" in article 31A (1) (a).
Sinha J., as he then was, who spoke for the Court, has elaborately examined the different kinds of land tenures prevailing in different parts of India, and has described the process of sub infeudation which was noticeable in most of the areas in course of time.
An "estate", it was observed, "is an area of land which is unit of revenue assessment and which is separately entered in the Land Revenue Collector 's register or revenue paying or revenue free estates".
"Speaking generally", observed Sinha, J., "It may be said that at the apex of the pyramid stands the State.
Under the State, a large number of persons variously called proprietors, zamindars, malguzars, inamdars and jagirdars, etc., hold parcels of land, subject to the payment of land revenue designated as peshkash, quitrent or malguzari, etc., representing the Government demands by way of land tax out of the usufruct of the land constituting an state, except where the Government demands had been excused in whole or in part by way of reward for service rendered to the State in the past, or to be rendered in the future" (p. 759).
"Tenure holders", it was observed, "were persons who took lands of an estate not necessarily for the purpose of self cultivation, but also for settling tenants on the land and realising rents from them.
Thus, in each grade of holders of land, in the process of sub infeudation the holder is a tenant under his superior holder 783 the landlord, and also the landlord of the holder directly holding under him" (pp. 760, 761).
Having thus considered the background of the land tenures in Punjab and elsewhere this Court proceeded to consider the amplitude of the crucial words "any estate or of any rights therein" in article 31A(1)(a). "According to this decision as the connotation of the term "estate" was different in different parts of the country, the expression "estate" described in cl.
(2) of article 31A, has been so broadly defined as to cover all estates in the country, and to cover all possible kinds of rights in estates, as shown by sub cl.
(b) of cl.
(2) of article 31 A" (p. 762).
"The expression `rights ' in relation to an estate has been given an all inclusive meaning comprising both what we have called, for the sake of brevity, the horizontal and vertical divisions of an estate.
The Provisions aforesaid of article 31 A, bearing on the construction of the expression `estate ' or `rights ' in an estate, have been deliberately made as wide as they could be in order to take in all kinds of rights quantitative and qualitative in an area coextensive with an estate or only a portion thereof" (p. 763).
Further observations made in the judgment in regard to the effect of the addition of words "raiyats" and "under raiyats" in cl.
(b) may also be usefully quoted : "The expression `rights ' in relation to an estate again has been used in a very comprehensive sense of including not only the interests of proprietors or Sub proprietors but also of lower grade tenants, like raiyats or under raiyats, and then they added, by way of further emphasising their intention, the expression `other intermediary ', thus clearly showing that the enumeration of intermediaries was only illustrative and not exhaustive" (p. 765).
Thus, this decision shows that the amendments made by the constitution First and Fourth Amendment Acts of 1951 and 1955 were intended to enable the State Legislatures to undertake the task of agrarian reform with the object of abolishing intermediaries 784 and establishing direct relationship between the State and tillers of the soil; and it is in that context that the would "estate" occurring in cl.
(2) of article 31 A was construed by this Court.
What we have said about the decision in Medhi 's case (1) is equally true about the decision in the case of Atma Ram (2).
The property which was held to be an estate was not an estate in the narrow sense for which the petitioner contends.
In Shri Mahadeo Paikaji Kolhe Yavatmal vs The State of Bombay and Shri Namadeorao Baliramji vs The State of Bombay (3) this Court had to consider the case of the petitioners in Vidarbha who held lands under the State and paid land revenue for the said lands thus held by them.
The relevant provisions of the Madhya Pradesh Land Revenue Code.
1954 (II of 1955) were examined and it was held that though the word "estate" as.
such had not been employed by the said Code the equivalent of the estate had to he determined under article 31 A (2) (a), and as a result of provisions of sections 145 and 146 of the said Code it was held that the estates held by the petitioners satisfied the test of the local equivalent of "estate" as contemplated by article 31A (2) (a).
In The State of Bihar vs Rameshwar Pratap Narain Singh(4), this Court had occasion to consider the scope and effect of the expression "rights in relation to an estate" used in cl.
(2) (b), and it held that "in the circumstances and in the particular setting in which the words `raiyat ' and `under raiyat ' were introduced into the definition it must be held that the words "or other intermediary" occurring at the end do not qualify or colour the meaning to be attached to the tenures newly added".
It is in the light of these decisions that we must now proceed to examine the character of the properties with which the petitioner is concerned.
As we have already seen the petitioner owns about 900 acres of land which are classified 785 as Pandaravaka holdings and about 350 acres which are described as Puravaka holdings.
In meeting the respondent 's contention that these lands are an estate under cl.
(2) (a) of article 31A the petitioner has alleged that the Pandaravaka tenure represents lands of which the State was in the position of the landlord and whatever rights other persons possessed were directly derived from the State.
Of the several classes of Pandaravaka tenure the most common is the verumpattom and most of the petitioner 's lands falling under the Pandaravaka tenure belong to this class.
The petitioner 's case is that his liability is to pay rent to the State calculated as a proportion of the gross yield of the properties ; and so the lands held by the petitioner as tenant under the State cannot be said to be an estate under cl.
(2) (a).
He is not an intermediary between the State and the tiller of soil and so is outside the purview of cl.
(2) (a).
It has also been alleged by the petitioner that his properties cannot be said to be an estate even in the sense of a local equivalent of the term "estate" because there is no unified record of rights over the area in question; "each survey number is often divided into several sub numbers and representing holdings that do not often take in more than a few cents has his own record of rights and separate assessment register".
It is for these reasons that the petitioner resists the application of cl.
(2) (a) to his Pandaravaka Verumpattom lands.
No clear and specific plea has been expressly made by the petitioner in regard to Puravaka lands.
In that connection the petitioner has, however, alleged that the Janmam is another peculiar feature of the land system in Kerala which it is not easy to define since a good deal of ambiguity attaches to the term.
However he contends that the Janmam right has to be understood in its limited and technical sense as taking within its scope a particular form of land holding known as the known tenancy.
786 According to the petitioner the Janmam right included in cl.
(2) (a) can take in only the rights and liabilities controlled and created by the two Tenancy Acts to which he has referred.
That is how the petitioner contends that the Puravaka lands are also outside the purview of cl.
(2) (a).
It is common ground that the proclamation issued by his Highness Sir Rama Varma Raja of Cochin on March 10, 1905, is the relevant existing law for the purpose of deciding whether the agricultural properties of the petitioner constitute an estate under cl.
(2)(a).
It is therefore, necessary to examine the scheme of this proclamation and decide whether in view of the characteristics and attributes of the properties held by the petitioner they can be said to constitute a local equivalent of an estate under cl.(2)(a).
This proclamation consists of twenty eight clauses which deal broadly with all the aspects of land tenure prevailing in the State of Cochin.
The preamble to the proclamation recites that the Raja had already ordered that a complete survey embracing demarcation and mapping and the preparation of an accurate record of titles in respect of all descriptions of properties within his entire State shall be carried out, and it adds that directions had been issued that a revenue settlement or revision of the State demand shall be conducted in accordance with the principles laid down by the proclamation.
Clause 6 enumerates the tenures of lands prevailing in the State.
Under this clause there are two major tenures (1) Pandaravaka and (2) Puravaka.
The former are held on one or the other of six varieties of tenures; of these we are concerned with the verumpattom sub tenure.
This clause provides that the Pandaravaka verumpattom tenure shall be deemed as the normal tenure for settling the full State demand and that the other tenures shall be treated as favourable tenures and settled on the lines indicated in cls.
14 to 17.
Clause 7 says that the present rate of assessment 787 on Pandaravaka verumpattom nilas varies from one eighth para to twelve paras of paddy for every para of land; and it adds that such a vast disparity of rates is indicative of unequal incidence under the existing revenue system.
That is why the clause proceeds to lay down that the State demand should bear a fixed proportion to the produce a land is capable of yielding and so it prescribes that under the Pandaravaka verumpattom tenure the holder should pay half of the net produce to the State.
The clause then proceeds to provide for the method in which this half of the net produce should be determined.
Clauses 11 and 12 deal with the assessment on tree.
Clause 13 is important.
It says "at present holders of Pandaravaka verumpattom lands do not possess any property in the soil.
As we are convinced that proprietorship in the soil will induce the cultivator to improve his land and thereby add to the prosperity of the land, we hereby declare that the verumpattom holders of lands shall, after the new settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue provided that the rights to metals, minerals possessed by the State in all lands under whatever tenure they are held are reserved to the State".
Under cl.18 it is provided, inter alia, that in the case of Pandaravaka lands held on the erumpattom tenure the settlement shall be made with the present holder of the land and in regard to Puravaka land with the Janmam.
Clause 22 prescribes the procedure and the time for the introduction of settlement.
It requires that before the introduction of the new rates of assessment a rough patta shall be issued to each of the landholders showing the relevant detail of his holdings and the assessment to be paid by him hereafter.
The object of preparing such a patta is to 788 give an opportunity to the landholders to bring to the notice of the authorities their objections if any.
The objections are then required to be heard before the final entries are made.
Clause 26 declares that the new settlement shall be current for a term of thirty years.
This has been done with a view to secure the utmost freedom of action to the landholders in improving their properties and turning them to the best advantage according to their means and inclination.
Clause 27 deals with escheats; and cl. 28 makes general provisions as to the formation of a new land record including reassessment of land and the registration of titles "a work calculated to promote the well being of a State".
It would thus be seen that under cl. 13 the person holding lands on the Pandaravaka verumpattom tenure is not a tenant.
He is given the proprietary right in the soil itself, subject of course to the rights as to metals and minerals reserved in favour of the State.
Indeed, the whole scheme of the new proclamation appears to be to change the character of the possession of the Pandaravaka verumpattom tenure holder from that of a tenant into that of a proprietor holder.
It is true that he is made liable to pay half of the net produce and that may appear to be a little too high, but the measure of the levy will not convert what is intended to be a recovery of assessment into a recovery of rent.
The proprietor of the land held on Pandaravaka verumpattom tenure is nevertheless a proprietor of the land and he holds the land subject to his liability to pay the assessment to the State.
It is not difficult to imagine that in a fairly large number of lands held by Pandaravaka verumpattom tenure holders the holders in turn would let out the lands to the cultivators and thus would come into existence a local equivalent of the class of intermediaries.
Land revenue record is required to be prepared by the proclamation and relevant entries showing the extent of the properties belonging to 789 the respective holders and the details about their liability to pay the assessment are intended to be shown in the said record.
In our opinion, it would not be reasonable to hold that the lands held by the petitioner under the Pandaravaka verumpattom tenure do not confer on him the proprietary right at all but make him a tenant of the State.
In the proclamation there does not appear to be a provision for forfeiture or surrender and the scheme adopted by the proclamation suggests that the amount due from the tenure holder by was of assessment would presumably be recovered as arrears of land revenue and not as rent.
Therefore, we are inclined to hold that the Pandaravaka Verumpattom can be regarded as a local equivalent of an estate under cl.
(2) (a) of article 31A.
The position with regard to Puravaka lands is still more clear.
Clause 14 of the proclamation enumerates four kinds of more favourable tenures.
The first of these is the class of Puravaka lands.
Clause 15 provides that in the case of Puravaka lands a third party called Janmi is recognised as owning proprietorship in the land and therefore entitled to share the produce with the cultivator and the sirkar.
Then the clause describes the mode in which share of the State or its demand on these Puravaka lands is calculated, under the previously existing land system; and it provides new rates of assessment payable in respect of the Puravaka tenure.
The Puravaka tenure in the State, the clause adds, corresponds to the normal conditions of land tenure in the District of Malabar where, in the recently introduced settlements, the net produce was distributed among the cultivator, the Janmi and the State in the following proportion : 790 __________________________________________________ __________ In Wet Lands In Garden Lands or Vrikshapattom Parambas __________________________________________________ __________ Cultivator 5 out of 15 5 out of 15 Jenmi 4 out of 15 5 out of 15 State 6 out of 15 5 out of 15 __________________________________________________ __________ Since it was thought that the said method of apportionment was fair and equitable the clause adopted the same in the State of Cochin.
It would thus be clear that the lands held by the petitioner under the Puravaka tenure satisfy the test of even the narrow construction placed by the petitioner on the term "estate" in cl.
(2)(a).
Therefore, there can be no doubt that about 350 acres of land held by the petitioner on the Puravaka tenure constitute an estate under cl.
(2)(a).
The result is that the lands held by the petitioner are an estate under cl.
(2)(a), and so the Act in so far as it operates against the holdings of the petitioner is protected under article 31A(1)(a) and so it is not open to the petitioner to challenge its validity on the ground that its material provisions offend against articles 14, 19 and 31 of the Constitution.
The writ petition accordingly fails and is dismissed.
There will be no order as to costs.
AYYANGAR, J. I regret I am unable to agree that article 31A of the Constitution saves the Kerala Agrarian Relations Act, 1960, from challenge under articles 14, 19 and 31 of the Constitution in so far as the said Act relates to the Pandaravaka lands of the petitioner.
Before however dealing with this point I consider it proper to add that I entirely agree that the Act was properly enacted by the State Legislature and that the consideration of the remitted bill by the new Legislative Assembly did not violate the provisions of article 20 of the Constitution.
In my judgment the terms of article 196 of the Constitution proceed on the basis that the Constitution maker 791 in line with the framers of the Government of India Act, 1935, radically departed from the theory of the British Constitutional Law and the practice obtaining in the Parliament of the United Kingdom as regards the effect of dissolution of the Houses of the Legislature on bills passed by the House or Houses and pending the assent of the head of the State.
Article 196 by its third clause having negatived the English rule that bills pending in the legislature lapse by reason of prorogation, goes on to enact cls.
(4) and (5) making special provision for Lapse in the event of not prorogation but dissolution.
Clause (5) enacts: "A bill which is pending in the Legislative Assembly of a State or which having been passed by the Legislative Assembly is pending in the legislative Council shall lapse on a dissolution of the Assembly." This clause on its terms applies both to States which have and which do not have a bicameral legislature.
In its application to a State without a Legislative Council the relevant words of the clause would read: "A bill which is pending in a Legislative Assembly of a State. . .shall lapse on dissolution of the Assembly".
The question that arises on the terms of this clause may be stated thus: Can a bill be said to be pending before the Legislative Assembly when it has gone through all the stages of the procedure prescribed for its passage through the house and has been passed by the Assembly ? Expressed in other words, does the pendency of a bill before the Assembly cease when it has passed through all the stages through which bills pass before the House or is it to be deemed as pending before the House until the bill receives the assent of the Governor or the President, as the case may be the latter event arising when bills are reserved by the Governor for the President 's assent ? Unless it could be contended that a bill 792 is pending in the Legislative Assembly until assent, there could be no scope for the argument based on article 196(5) in support of the position that an unassented bill is still pending in the Assembly.
In this context the difference in the terminology employed in article 196(3) and 196(5) requires to be noticed.
Whereas article 196(3) speaks of the pendency of a bill in the Legislature of a State which would, having regard to the description of 'Legislature ' in article 168, include the Governor, article 196(5) uses the words 'Legislative Assembly ' as if to indicate that it is only in the event of the bill being pending before that body that it lapses on dissolution.
In the face of the provision in article 196(5) there is no justification for invoking the Biritish practice under which bills not assented to before the dissolution of the Houses are treated as having lapsed on that event occurring.
If the Governor can assent or refuse to assent to a bill, which has passed through all the stages of consideration by a Legislative Assembly even though that Assembly is dissolved under the terms of article 200, because the bill is a live bill within the terms of that Article, it would follow that he can exercise the other alternative open to him under that Article, viz., to reserve the bill for the President 's assent.
If by reason of the language employed in article 196(5) the bill is alive so far, and the President could assent to the bill it would follow that subject to an argument based on the terms of article 201 he can also remit the bill for reconsideration by the Assembly notwithstanding the dissolution.
The next question for consideration is whether there is anything in the terms of article 201 which precludes effect being given to the above principle.
The Article runs: 793 "201.
When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.
" Considerable stress was laid by the Learned Counsel on the use of the two expressions 'return the bill to the House ' and 'the House shall reconsider it accordingly ' as indicating that the words underlined* unmistakably implied that the consideration of the bill must be by the Assembly which originally passed it.
It was in this connection that reliance was placed on the terms of article 172(1) reading (omitting the proviso which is immaterial for the present purpose): "172.
(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly: " The argument was that the Constitution did not envisage the Assemblies having a continuous life but 794 that on the other hand it clearly contemplated different Legislative Assemblies each one having a definite life which ended either automatically at the end of five years or at an earlier period by dissolution and that in the context of this provision, to the words 'return ' and 'reconsider ' employed in article 201 their literal meaning must be attached.
It is not possible to accept this construction as to the effect of article 172 on the rest of the provisions in this Part.
No doubt, for particular purposes each Assembly is conceived of as having a life of limited duration but it does not follow that the Constitution does not envisage the Legislature as an institution.
In this connection I consider it useful to refer to the decision of the Privy Council in Attorney General for New South Wales vs Rennie (1).
The question before the Board was as ragards the true construction of a New South Wales statute "The Parliamentary Representatives ' Allowance Act" which by its section 2 made an annual grant to "every member of the Legislative Assembly now serving or hereafter to serve therein".
Section 2 of the Imperial Act which enacted the Constitution Act of the Colony provided that "every Legislative Assembly was to continue for five years from the day of the return of writs for choosing the same and no longer, subject to be sooner prorogued or dissolved by the Governor of the Colony", which term was by a later enactment reduced to three years.
The Attorney General for New South Wales raised an information seeking a declaration that there were no moneys legally available or applicable to the payment of members of future Assemblies with a prayer that the Auditor General might be restrained from countersigning the authorisation of such payments.
The Supreme Court of the Colony dismissed the information whereupon the Attorney General brought the matter in appeal to the Privy 795 Council.
The question turned on the meaning of the words 'the Legislative Assembly ' in section 2 of the Act and reliance was placed on behalf of the appellant on the provision for dissolution contained in the Imperial Act.
It was contended that the Assembly was a body of limited duration called into existence from time to time and not a permanent and continuous body and that consequently the Act granting the allowance should be construed as applying to the members of the particular Assembly in existence on the date of the Act.
Rejecting this argument, Sir, Richard Couch stated: "They think that according to the ordinary use of the term 'legislative assembly it means the assembly created by the Constitution Act which, though liable to be dissolved or to expire by effluxion of time, is an essential part of the constitution of the colony and must be regarded as a permanent body.
" I consider these words apt to describe the reference to the "House of the Legislature" in the proviso to article 201.
I therefore respectfully concur in the view that the bill was validly passed and that the objection based on an infringement or contravention of article 201 must be repelled.
I shall now take up for consideration the merits of the petition.
The petitioner is the owner of about 1,250 acres of land in Trichur in the erstwhile princely State of Cochin.
Out of this extent, 900 acres are classified in the land records of the State as Pandaravaka Verumpattom lands and the remaining are entered as Puravaka lands.
While so the Kerala Legislature enacted the Kerala Agrarian Relations Act, 1960 (Kerala Act IV of 1961), providing for the acquisition of certain types of agricultural lands in the State beyond the specified maximum extents laid down in the statute and 796 on payment of compensation as determined by it.
The details of this legislation are set out and their impact on the owners of landed property in the State are dealt with in full in the judgment in Writ Petitions 114 and 115 which is being pronounced today.
In the circumstances it is not necessary to say more about the enactment than point out that it seriously interferes with the rights of landowners in a manner which, as held in the judgment in the other petitions, is violative of the rights guaranteed to citizens by Part III of the constitution.
For the respondent however the main defence on this petition is based on article 31A, the submission being that the lands of the petitioner by reason of the tenure by which he holds them, constitute an "estate" within the definition of that term in article 31A(2)(a).
As the tenures which are involved in the case cover considerable areas of the former State of Cochin, and as the implications arising from any decision as regards these tenures might affect other areas, particularly in South India the effect of the acceptance of the submission by the respondent would be far reaching.
I have therefore considered it proper to deal with matter from a wider angle than would be necessary if the effect of our decision would be confined to tenures of infrequent occurrence.
The two tenures into which the lands held by the petitioner fall are, as stated earlier, Pandaravaka Verumpattom and the Puravaka, but before considering their characteristics it will be useful to attempt a picture of the general system of landholding in Malabar.
As is well known, Malabar comprising the territories of the former princely State of Travancore & Cochin and the contiguous district of Malabar in the former Presidency of Madras, was among the few areas in India in which freehold rights in land were recognised.
This exclusive right and hereditary possession and usufruct of the soil was denoted by the term "Jenm" 797 and the holder was designated the Jenmi or the Jenmikaran.
The Jenmis had full and obsolute property in the soil.
All land which was not the property of Jenmis or ceased to be theirs such as by forfeiture, were held by the State.
These lands were let for rent to cultivators on terms of paying rent.
The assertion by the State to the proprietorship of the soil which carried with it a denial of the right of alienation by the tenant of the leased lands and so of the right to hereditary enjoyment was besides being contrary to the accepted theory of the Hindu law givers, was also productive of grave economic ills.
According to the Hindu Law givers starting from Manu, property in the soil arose out of occupation and cultivation.
The texts which expound this position are set out and discussed by Westropp, C. J., in Vykunta Bapuji vs Government of Bombay(1) (See also Sundaraja Iyengar Land Tenures in the Madras Presidency, pp. 5 to21).
According to this theory the King was not the owner of cultivated land but the proprietary interest in it vested in the cultivator, the right of the King being merely to the Raja bhagam which represented various proportions of the produce, sometimes thought of as being a sixth and at other times at higher proportions ranging up to a half.
As observed by Subramania Iyer, J., in Venkata Narasimha vs Kotayya (2).
"For, in the first place, sovereigns, ancient or modern, did here set up more than a right to a share of the produce raised by raiyats in lands cultivated by them, however much that share varied at different times.
And,in the language of the Board of Revenue which long after the Permanent Settlement Regulations were passed, investigated and reported upon the nature of the rights of ryots in the various parts of the Presidency, 'whether rendered in service, in money or in kind and whether paid to rajas, jagirdars, zemindars, poligars, mutadars 798 shro triemdars, inamdars or to Government officers, such as tahsildars, amildars, amins or thannadars, the payments which have always been made are universally deemed the due of Government. ' (See the Proceedings of the Board of Revenue, dated 5th January, 1818, quoted in the note at page 223 of Dewan Bahadur Srinivasa Raghava Ayyangar 's 'Progress in the Madras Presidency ').
" This proprietary interest of the cultivator was in its true sense a property right being capable of alienation and of hereditary enjoyment.
At the time of Permanent Settlement Regulation in Bengal (1793), and subsequently when its Madras counterpart was enacted (Regulation XXV of 1802), there was a great deal of controversy as to whether the East India Company as the Ruler was or was not entitled to the proprietary rights to the soil in the country.
In the words of Westropp, C. J., in Vykunta Bapuji vs Government of Bombay (1) involved in this "was the question as to the character in which native governments claimed, from the occupants of the land, payments either in money or in produce in respect of the land.
Were these payments rent or revenue ? Some maintained that those payments were rent, not revenue; because, it was said, the land could only be occupied and cultivated by the permission of the sovereign, and that such produce, as there may be in excess of what sufficed for the bare subsistence of the cultivators and for the expenses of cultivation, is the property of the sovereign.
Others maintained that the sovereign was only entitled to a fixed portion of the produce, and that the surplus beyond that portion, plus the subsistence of the rayuts (cultivators) 799 and the cost of cultivation, belonged to a class of great landlords between the sovereign and the rayuts, which intermediate class consisted of zamindars, talukdars or similar personages; while others again strongly contended that, subject to a land tax payable to the sovereign, the property in the soil was vested in the cultivator, sometimes in the form of village communities holding corporately, at other times individuals holding in severalty, or jointly as members of an undivided family.
In 1793, (either upon the ground that the soil was vested in the sovereign power, and that it was expedient that, by that power, a landed aristocracy should be created, or upon the ground, that the land, subject to the revenue assessment i.e., the king 's (or State 's share of the produce, ought to be publicly recognized as vested in the class of zamindars, & c., as landlords) the permanent settlement in Bengal, Bihar and Orissa was made by the Government of Lord Cornwallis, by recognizing the zamindars, & c., as the proprietors of the soil, and entitled to transfer it, and by fixing, once for all, the land tax payable by them to the State at an immutable annual rate.
" In 1796 the Government of Madras declared that "it is the first feature in all the Governments of India, that the Sovereign, whether he be a Mussulman or Hindoo is lord of the soil; and hence it is that no alienation of lands from the property of the circar, or rather no possession of land whatever is valid without a written instrument from the superior lord; and this distinction has invariably followed the conquests of all nations who have established themselves in India".
This statement was directly contrary to accepted practice and the consciousness of the cultivator in Madras.
It is not therefore a matter for surprise 800 that in answer to this declaration of the Government, the Board of Revenue at once pointed out that "there were hereditary cultivators on lands with the right of making any disposition of them by sale, mortgage or otherwise as long as they paid the Government revenue, and that they only could not make any alienation of them to the exclusion of the royal share of the revenue.
" Acting on the view that the Crown was the proprietor of the soil, the Birtish Government purported to confer proprietary rights in the soil on the zamindars under the Permanent Settlement the preamble to which referred to the reservation by the ruling power of the "implied right and actual exercise of the proprietary right to possession of all lands whatever" and by section 2 purported to vest in the zamindars the proprietary right to the soil.
It was however found that this interfered with the established rights of cultivators and Madras Regulation IV of 1822 was passed to declare that the provisions of Regulation XXV of 1802 were not intended to affect the actual ryots in cultivation of lands.
It might be added that the Privy Council ruled in Collector of Trichinapally vs Lekkamoni (1) that the theory underlying these words in the Regulation were not sustainable and that there were proprietary rights in land not traceable to or derived from the sovereign.
The introduction of the Permanent Settlement with the creation of a class of zamindars as in Bengal was not considered to be a beneficial system by the Government of Madras and so after the grant of some sanads under Madras Regulation XXV of 1802 mostly in recognition of ancient titles the creation of new permanently settled estates was stopped and in its place, the system of revenue administration associated with the name of Sir Thomas Munro known as the ryotwari system was adopted.
According to Munro there was 801 no need for the interposition of an intermediary between the State and the actual cultivator, particularly as it was clear that the system meant that the zamindars enjoyed what the cultivator parted with to the State; in other words, the difference between the rent paid by the actual cultivator, viz., the melwaram and the peishcush or the Jama fixed by the zamindar or proprietor was so much profit for the middleman and therefore pro tanto a diminution of the amount which would have accrued to the State.
Besides, Munro considered that on economic grounds and with a view to increase agricultural production it was necessary for the State being in touch with the actual cultivator.
For these reasons he formulated the "ryotwari system" and introduced it in several areas of the Madras Presidency and Coimbatore district adjoining the State of Cochin being almost the first among the districts where the system was introduced.
The basic and essential feature of the system was that the fixation of the revenue assessment payable by the cultivator had to be proceeded by a survey of the a land which included the ascertainment of the productivity of the soil and that the assessment should be based on what was known as 'tharam ' (or quality) classification.
The assessment thus began to be based on scientific data and principles and was so designed as to leave a sufficient margin to the cultivator to induce him to remain on the land and be assured of a good share in increased production resulting from the employment of his labour and capital.
The terms on which the ryot held the land was contained in the patta issued to him on behalf of the Government and this specified the extent of land held by him as well as the amount of the assessment and the time when the instalments had to be paid.
This was not however considered to be any document of title, because the ryot had the property in him and his interest was a proprietary interest in the soil and so capable 802 of being alienated and of being transmitted to his heirs.
This however was not anything new and it was not as if the interest of the cultivator was not alienable before the ryotwari system was introduced.
Before that date however, the assessment of the land was both heavy in most parts and unequal not being based on the productive capacity of the soil, as to leave little or no margin to the cultivator.
Besides the predations of revenue and the severity of the tax was dependent on the exigencies and necessities, if not the whims of the ruler and in such a situation, even though technically cultivated land was capable of alienation there being no ban on alienation, still having regard to the meagre margin left to the owner and the fear of increased taxation based on no principle, no purchaser could be found; though owing to the impossibility of finding a more profitable use for manual labour apart from the sentimental attachment to land, the actual cultivator clung to his holding.
But when with the advent of a system of assessment based on fixed and scientific principles which left a sufficient margin for the cultivator, and there was no fear of sudden increases of assessment, land became a marketable commodity investment in which was rendered worthwhile.
Notwithstanding that in Malabar absolute ownership of the soil by the Jenmi where the land was the property of individuals and of the State where it was the owner, was a characteristic of the landholding, still from a fairly early date after the British conquest of the neighbouring areas the concept of the cultivator with whom the State entered into direct relations being conceded the proprietorship of the soil slowly permeated.
In this connection I might usefully refer to a proclamation of the ruler of Travancore of 1865 (1040 M. E.) regarding Sarkar pattom lands, with the observation that subject to variations 803 dependent on local usages, the system of land tenure and the concepts as regards the rights of property in land were substantially similar in Travancore and Cochin.
Sarkar pattom lands were what might be termed 'Crown lands ' of which the ruler was deemed to be the Jenmi or the landlord.
Previous to the proclamation the lands were legally capable of being resumed by the ruler, though this was seldom done and the cultivators were not legally entitled to transfer their rights and where this was done the Government had the right to ignore the transaction.
The fact that the cultivator was conceived of as having no proprietary interest on the land also bore adversely on the State since the State was deprived of the means of realising any arrears of revenue by bringing the holding to sale.
It was to remedy this situation that the proclamation was issued and the preamble and its terms carry the impress of the impact of the ryotwari system of Madras.
The proclamation reads: "Whereas we earnestly desire that the possession of landed as well as other property in Our Territory should be as secure as possible; and whereas We are of opinion that, with this view Sirkar Pattom lands can be placed on a much better footing than at present so as to enhance their value; we are pleased to notify to our Ryots 1st.
That the Sirkar hereby and for ever surrenders, for the benefit of the people, all optional power over the following classes of lands, whether wet, garden or dry, and whether included in the Ayacut accounts or registered since: Ven Pattom, Vettolivoo Pattom, Maraya Pattom, Olavoo Pattom, Mara Pattom, 804 and all such Durkast Pattom, the tax of which is understood to be fixed till the next Survey and assessment.
2ndly.
That the Ryots holding these lands may regard them fully as private, heritable, saleable, and otherwise transferable, property.
3rdly.
Accordingly, the sales, mortgages, & c., of these lands will henceforward be valid, may be effected on stamped cadjans, and will be duly registered.
The lands may be sold for arrears of tax, in execution of decrees of Courts and such other legitimate purposes, and may also be accepted as security by the Sirkar as well as by private individuals.
4thly.
That the holders of the lands in question may rest assured that they may enjoy them undisturbed so long as the appointed assessment is paid.
5thly.
That the said holders are henceforth at full liberty to lay out labour and capital on their lands of the aforesaid description to any extent they please, being sure of continued and secure possession. . . . " The language employed in the proclamation is of significance.
It speaks of the relinquishment or withdrawal of the right of the State and not of the conferment of a right on the ryot so as to render the ryot a grantee from the State, just in line with the Hindu Law theory of the proprietorship of the soil vesting in the occupant cultivator.
With this background, I shall proceed to consider the nature of the tenures Pandaravaka and Puravaka with which this petition is concerned.
The two tenures are quite different in their origin and essential characteristics and so have to be separately dealt with.
Pandaravaka lands are those in which the State held proprietary rights the 805 name being derived from Bandara or the treasury, while in regard to the Puravaka, they were lands in which the proprietorship vested in the Jenmi, but which were under the cultivation of tenants on whom the State imposed land revenue.
Putting aside for the moment the Puravaka lands, the Pandaravaka lands might be approximated to the Crown lands dealt with by the Travancore Proclamation of 1865 already referred to.
The terms on which the tenants held the right of the Crown were almost the same as in the other case.
The evils which the system gave rise to, the economic insecurity of the tenant and the consequent lack of incentive on his part to put his best exertion on the land and the resultant loss to the state in the shape of revenue as well as the rise of a contented peasantry were exactly parallel to the situation which faced the ruler of Travancore leading to the proclamation of 1865.
It was in these circumstances that the ruler of Cochin issued a proclamation on March 10, 1905, which defined with precision the rights of the State and of the cultivator in regard to these lands and it is the submission of the learned Attorney General that the effect of this proclamation is to render the Pandaravaka and Puravaka lands held by the petitioner "estates" within the meaning of article 31A(2) of the constitution as it now stands.
It is therefore necessary to set out in some detail the terms of this proclamation.
The preamble to the proclamation recites the fact that the State demand had not been fixed either with reference to the actual measurements of the land or on any fixed or uniform principles and that a revision of the State demand based upon a correct measurement of lands and definite principles, fair alike to the State and "our" agricultural population, is desirable in the interest of a sound revenue administration.
It then proceeds to state 806 that a survey which included the demarcation, mapping and the preparation of an accurate record of titles in respect of all descriptions of properties was to be carried out and that a Settlement or revision of the State demand would be conducted in accordance with the principles laid down by the proclamation.
In passing it may be mentioned that this is reminiscent of the despatches of Thomas Munro in which he expatiates upon the need of a proper survey and a correct definition of the principles upon which land revenue shall be assessed and that the quantum of revenue should be such as while providing for a fair share to the State, should leave enough for the cultivator to live upon and offer an inducement to him to increase the output of his fields in which event the surplus available to him would be more.
In particular I might refer to a passage in a despatch which is extracted by Westropp, C.J., in Vykunta Bapuji vs Government of Bombay (1) reading: "When the land revenue is fixed and light, the farmer sees that he will reap the reward of his own industry: the cheerful prospect of improving his situation animates his labours, and enables him to replace in a short time the losses he may sustain from adverse seasons, the devastations of war, and other accidents.
" Paragraph 5 of the proclamation directs that lands, whether wet or dry, were to be classified with reference to the nature of their soils in accordance with the table of classification prescribed in the Madras Settlement Manual which is sufficiently indicative of the close correspondence between the ryotwari system and mode of fixation of land revenue and the principles underlying it as prevailed in the neighbouring Presidency of Madras.
Paragraph 6 reads: "Under the present land revenue system of the State, lands are held under two main 807 tenures, viz., Pandaravaka and Puravaka. . " At this stage it is necessary only to add that the proclamation does not deal with the rights as between the State and Jenmis, i.e., that class of land owners who were entitled to a freehold interest in the land as explained earlier.
I shall deal later with special legislation with reference to Jenmis in the other princely State which is a constituent of present State of Kerala in its proper place.
Paragraph 6 proceeds to enumerate the six subsidiary classifications of the Pandaravaka tenure and enumerates the Verumpattom type as the first among them and this type is taken as the standard for fixing the land revenue of the other categories which, it might be mentioned, are favourable tenants, the State demand being reduced.
To these others which partake of the nature of grants of land revenue very different considerations would apply.
The lands of the petitioner held on Pandaravaka tenure, it should be added fall within the sub category of Verumpattom lands.
The proclamation then proceeds to state: "The revenue paid to the State varies according to the nature of the tenure, i.e., the six sub classes.
It is however only the Pandaravaka Verumpattom lands which pay the full pattom or share due to the State.
We have accordingly decided that the Pandaravaka Verumpattom shall be deemed as the normal tenure for settling the full State demand and that the other tenures shall be treated as favourable tenures and settled on the lines hereinafter indicated. . ." Paragraph 7, after reciting that the rates of assessment on Pandaravaka Verumpattom wet lands vary from place to place, points out that such disparity is indicative of unequal incidence and stating that it was essential that the State demand should 808 bear a fixed proportion to the produce a land is capable of yielding announces the decision that the same shall be half the net produce.
The deductions to be made for ascertaining the net produce are indicated.
The next clause which is of relevance and importance in the present context is cl. 13 which runs: "13.
At present holders of Pandaravaka Verumpattom lands do not possess any property in the soil.
As we are convinced that proprietorship in soil will induce a cultivator to improve his land and thereby add to the agricultural prosperity of the country, we hereby declare that our Verumpattom holders of lands shall, after the new Settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue, provided that the rights to metals and minerals, possessed by the State in all lands under whatever tenures they are held, are reserved to the State.
" Paragraph 14 onwards deal with favourable tenures and of these we are concerned only with Puravaka lands and it is pointed out in Paragraph 15 that in the case of Puravaka lands the Jenmi is recognised as owning the proprietorship in the land and is consequently entitled to share the produce with the cultivator and the Sirkar, and proceeds to define the State demand in such lands.
There are other clauses dealing with other incidents in regard to these tenures and in regard to other interests in the land such as house sites etc.
but we are not concerned with them.
The proclamation also makes provision for the grant of rough or draft pattas to cultivators and of fair pattas detailing the assessment payable on such lands provisions exactly parallel to the practice and procedure prevailing in the adjoining area of the Madras Presidency.
Besides, it also makes 809 provision against any revision of the assessment once fixed before the expiry of 30 years, also in line with the then practice in Madras.
I have made this analysis of the provisions of the proclamation for the purpose of emphasizing that what the proclamation intended to achieve was the introduction of ryotwari system of settlement in the place of exactions by the State based on no principles and unrelated to the productivity of the soil and having an unequal incidence for different areas and different lands.
The holder of Pandaravaka Verumpattom patta was therefore nothing more or nothing less than the holder of a ryotwari patta in the adjoining Madras State.
The only point of difference that could be suggested is this.
Under the ryotwari system, the proprietorship of the ryot to the soil is not in theory derived from the State, whereas under the proclamation of 1905, it appears to rest on a grant.
In my opinion this makes no difference, because the essential features of the system are the same as those of ryotwari (1) a direct relationship between the State and the cultivator, and with the absence of any intermediary to intercept the raja bhagam or land revenue, (2) there is no grant or alienation of the States ' right to revenue in favour of the grantee.
The Puravaka tenure was wholly different.
They were lands held by Jenmis.
As I shall show later, Jenmam lands were not exempt from the payment of land revenue but the Puravaka tenant had the benefit of a favourable assessment.
In other words, in respect of those lands the produce of the land was the subject of sharing as between the actual cultivator, the Jenmi and the State, though the Jenmi had a freehold interest in the land itself The question for consideration now is whether the lands held under a patta by a Pandaravaka Verumpattom and of Jenmam lands by a Puravaka 810 tenant are "estates" within the meaning of article 31 A (2).
Before examining the terms of article 31 A (2) as they now stand, it is necessary to refer to the antecedent history which led to the First and the Fourth Constitutional Amendments.
Preliminary to this it might not be out of place to briefly explain the circumstances which necessitated the First amendment as pointing to the mischief which that amendment was designed to remedy.
Very soon after independence several States initiated land reforms whose object was the elimination of the intermediaries.
The Madras Legislature enacted the Madras Abolition of Estates and Conversion into Ryotwari Act, 1948, by which intermediaries in the shape of zemindars, Palayagars, Jagirdars, Inamdars and other such proprietors were eliminated and persons in actual cultivation of the lands under the zemindars were brought into direct relationship with the government by being granted ryotwari pattas in respect of their former holdings.
There was similar legislation in Bihar Bihar Act 1 of 1950, as also in some of the other States of the Indian Union.
The validity of the several pieces of legislation was challenged in the respective High Courts principally on the ground that the deprivation of the rights of the zamindars etc.
effected by these enactments and the principles upon which the compensation payable for the deprivation was determined violated articles 14, 19 and 31 of the Constitution.
The first case in which a decision was rendered by a High Court in respect of the contentions urged was by the Patna High Court in Kameshwar Singh vs State of Bihar (1) in which the petition succeeded and Bihar Abolition of Estates Act 1 of 1950 was declared unconstitutional.
An appeal was preferred by the State against the judgment to this Court and it was during 811 the pendency of this appeal and with a view to validate the legislation which had been enacted in the several States and which was the subject of attack in several Courts, including this Court, that First Constitutional Amendment by which article 31A was introduced into the Constitution, was enacted.
The Constitution (First Amendment) Act, 1951, received the assent of the President on June 18, 1951, but article 31A which was introduced by section 4 of this Act was expressly made retrospective from the commencement of the Constitution.
As then enacted article 31A ran: "31A. Saving of laws providing for acquisition of estates: etc. (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for 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, 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 'rights ' in relation to an estate shall include any rights vesting in a proprietor, sub proprietor, under proprietor tenure holder or other intermediary and any rights or privilege in respect of revenue.
" 812 In addition the First Constitution Amendment Act also enacted by its section 5 a further provision article
31B expressly validating the several enactments of the various States which were then under challenge and which were all set out in Sch. 9 of the Constitution.
From this collocation it would be seen that whereas article 31B immunised from attack all the pieces of legislation which had been enacted by June 1951, article 31A was intended to render the same types of legislation enacted in future immune from attack, provided that the enactments were reserved for the President 's assent and were assented to by him.
It is with this background that one has to approach the construction of article 31A. Clause (1) of article 31A does not present any difficulty in construction with reference to the point now under discussion, because its terms are clear and apply to laws providing for "the acquisition by the State of any estate or rights therein" or "the extinguishment or modification of any such rights".
The crucial words here are that the rights which are acquired, extinguished or modified are rights in or in respect of an "estate".
If there had been no definition of the expression 'estate ', one might have had to look to the grammatical of literal meaning of the word, and the word might conceivably be understood as including person 's interest in landed property whatever may be the nature or extent of the interest, though the width of this meaning might be controlled by the history of the provision, the antecedent state of circumstances and the mischief which it was designed to overcome.
But the enactment has not left this matter for investigation in that manner.
Sub clause (2)(a) contains the definition of expression 'estate ' and sub cl.
(b) of "rights in relation to an estate".
It is obvious that the word 'estate ' in sub cls.
(a) and (b) mean the same and is employed to designate identical types of land holding.
If the expression "rights in relation to an estate" in sub cl.
(b) 813 indicates that it is the "estate" or the right of the intermediary that is comprehended by the use of the words 'proprietor, sub proprietor, under proprietor, tenure holder or other intermediary", clearly the expression 'estate ' in sub cl.(a) must be understood as referring to such types of landholder.
It is also worth noting that the words "shall also include any jagir, inam or muafi or other similar grant" in sub cl.(a) have their parallel in sub cl.
(b) by the words "any rights or privileges in respect of land revenue.
" The net result therefore was that the term 'estate ' signified the land held by an intermediary who stood between the State and the actual tiller of the soil, and also the interests of those in whose favour there had been alienation of the right to revenue, i.e., lands held on revenue free or on favourable tenures.
The two sub clauses may now be further examined to determine their content and significance.
Taking first sub cl.
(a) it is necessary to advert to two matters: (1) the reference to the "local equivalent" of the term 'estate ' in the law existing in any local area, and (2) the denotation of the words 'the existing law in relation to land tenures in force in that area '.
In regard to the 'local equivalent ' of the term 'estate ' there is one observation I desire to make.
These words were not in the Bill as originally presented to Parliament and were brought in as a result of the suggestion of the Joint Select Committee to which the BIII was referred.
In their report the Select Committee stated: "We have amended the definition of an 'estate ' to cover cases where the existing law relating to land tenure is in a regional language for example in Hindi or Urdu and uses the local equivalent of 'estate '.
" I am far from saying that if the meaning of the expression were clear the purpose for which the words were used would determine their construction 814 but I am drawing attention to this passage from the report of the Joint Select Committee for pointing out that by the use of the expression 'local equivalent ' the central concept of an 'estate ', as would be clear from the terms of sub cl.
(b), which in effect is a further definition of the term 'estate ' was not intended to be departed from.
Next as to the meaning of "in the existing law in relation to land tenures".
These words raise for consideration the question as to what constitutes "a land tenure".
If one had to go merely by the grammatical meaning merely of 'tenure ' derived from the Latin 'tenere ' to hold, any kind of right or title by which property is held would be included, the only requirement would be that the property should be held of another.
In that wide sense it would include the case of land held under an ordinary tenancy under a landlord under the Transfer of Property Act.
Obviously that is not the sense in which the word is employed in the clause.
It has therefore to be understood as comprehending that type of "holding" where the holder is an intermediary between the State and the tiller, or is otherwise the grantee of land revenue holding the land under a favourable tenure.
If this is the essential feature of the concept of an 'estate ' under cl.
(2), the expression 'land tenure ' must in the context mean the 'tenure ' under which an 'estate ' as defined is held.
To read it otherwise and understand 'land tenure ' as designating any system of landholding, whether or not such system conforms to the central and essential concept of estate, would not be correct.
Such an interpretation would result in anomaly that in an existing law in force in a local area which uses the word 'estate ' and includes within that definition particular tenures, only they and none also are included, but if such law does not refer to a tenure as an 'estate ' then it comprehends any 815 holding of land under Government whatever be the nature of the tenure.
That would constitute a radical departure from the purpose of the First Amendment and a construction which is not compelled by the words, but on the other hand contradicted by the context and setting in which they occur.
This leads me to the case where an "existing law in relation to land tenures" uses the term 'estate ' and defines it in a particular manner and that definition includes not merely the proprietary rights of intermediaries or others holding land on favourable tenures as described in sub cl.
(b) but also others who hold properties in their own right and describes the land holding of these others also as 'estates '.
The question would then arise whether literal effect has or has not to be given to the words 'defined as an estate under the law relating to land tenures ' occurring in sub cl.
One possible view to take would be that having regard to the central concept of an 'estate ' as signifying the rights in land of an intermediary etc.
, those whose rights in land did not involve any assignment of the Raja bhagam but were in direct relationship with the State and subject to the payment of the full assessment of the revenue lawfully imposed upon it, could not be termed to have an interest in an 'estate ', nor the land held by them to fall within the concept of an 'estate ' as comprehended in sub cl.
The other view would be that if the operative terms of article 31A and in particular the definition of "an estate" contained in cl.
(2)(a) unambiguously covered cases of non intermediaries also, effect would have to be given to the terms used for it is a cardinal rule of interpretation that the operative words of an enactment, and in this must be included the terms of the Constitution, cannot be controlled by reference to the object for which the provision was introduced where the words are unambiguous.
If a law in force in any local area 816 at the commencement of the Constitution which was "a law in relation to land tenures" contained the definition of an 'estate ' then every species of land holding which fell within the definition and was comprehended by such law relating to land tenure would, for the purpose of the Constitution be comprehended within the ambit of an 'estate ' and it might be no answer in regard to any particular species of land tenure that its holder was not an intermediary.
I shall have occasion to refer to the decisions which turn on this aspect of the matter a little later.
Apart from the exceptional cases just now mentioned where one is faced with a definition of 'an estate ' in an existing law, I consider that the First Amendment to the Constitution did not bring within the definition of 'an estate ' the holdings of persons other than intermediaries or those who held land under grants on favourable tenures from Government Jagirdar, Inamdar, Muafidar, etc.
As pointed out by Venkatarama Ayyar, J., speaking for this Court in Thakur Amar Singhji vs State of Rajasthan (1): The object of article 31A was to save legislation which was directed to the abolition of intermediaries so as to establish direct relationship between the State and the tillers of the soil. . " I shall now turn to sub cl.
(b) and to the terminology employed in it to define 'rights in relation to an estate ' and examine how far this definition affects the content of cl.
(a) as above explained.
In the first place as already noticed, the use of the word 'estate ' in the clause serves to bring into it the concept of an 'estate ' as defined in cl.
(a) pointing to the inter dependence of the two clauses necessitating their having to be read together.
The second point requiring advertance is as regards the definition purporting to be inclusive and not exhaustive.
The question arising therefrom may be 817 posed thus: Does the definition include any other type of interest besides those enumerated, particularly of a different nature or characteristic which could not be comprehended within the extension brought in by the words 'or other intermediary '.
I am clearly of the opinion that it does not and that the word includes ' is here used in the sense of 'means and includes '.
In this connection I would usefully refer to the observations of Lord Watson delivering the judgment of the Privy Council in Dilworth vs Commissioner for Land and Income Tax (1): "The word 'include ' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.
But the word 'include ' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined.
It may be equivalent to 'mean and include ', and in that case it may afford an exhaustive explanation of the meaning which for the purposes of the Act, must invariably be attached to these words or expressions.
" If therefore the constitutional validity of a legislation extinguishing or modifying the rights either of the Pandaravaka Verumpattomdars who were in the position of a ryotwari pattadar or of the Puravaka holders who held under a Jenmi of Jenmam land had to be tested with reference to 818 article 31A as it stood when it was introduced by the First Amendment, these interests under the proclamation of 1905 would not be held to be an 'estate ' and therefore outside the scope of the protection against the guaranteed fundamental rights.
Before examining the effect of the change introduced by the Fourth Amendment to article 31A it might be useful to detail the circumstances which put these tenures outside article 31A under the First Constitution Amendment.
Taking the Puravaka tenure first, it ought to be mentioned that as would be seen from the terms of the proclamation of 1905 extracted earlier, Puravaka lands were those in the ownership of the Jenmi but in respect of which he was not directly in cultivation.
The Jenmi was considered an absolute proprietor not merely of lands which were cultivated but unlike the ryotwari pattadar also those which were not under his cultivation such as waste lands, forests, etc., and he did not hold land under the State.
In other words, his proprietorship to or rights over the land of which he claimed ownership was not traceable to any title derived from the State.
But notwithstanding this freehold right that he claimed and enjoyed the State was entitled from the earliest times to assess his lands to land revenue.
Exemption from taxation was not any essential condition of Jenmam tenure and the Jenmi was under an obligation to pay what was termed 'Raja bhagam ' which was the equivalent of the expression 'land revenue '.
This incidence of Jenmam land did not therefore detract from its character of its being the private and absolute property of the Jenmi.
There was legislation in Travancore as regards the liability of the Jenmi to pay the land tax or the Raja bhagam except, of course, in those cases where anr particular land was rendered tax free as a mattey of grace or concession by the ruler.
The legislation started with a royal proclamation 1869 (1042 M.E.) dealing with the lands of Jenmis and their relation 819 with their tenants.
This proclamation was replaced by Regulation 5 of 1071 (July 3, 1896) which continued in force with various amendments right up to the date of the Act whose validity is now impugned and is referred to in it.
By these pieces of legislation the rights of the Jenmi quoad his tenants were regulated, the grounds upon which eviction would take place were laid down and the customary rights enjoyed by either party were, so, to speak, codified.
I am pointing this out because the existence of a law regulating the rights of property owners and defining their rights or obligations either quoad the Government in respect of land revenue or as regards persons holding land under them did not by itself render such law one "relating to land tenure" within the meaning of article 31A(2)(a).
In order to be such a law it should regulate the rights of persons holding under grants from the government of the Raja bhagom.
A law defining or regulating the levy of assessment or revenue on lands held not under such grants from the State would not be such a law.
It was for this reason that the interest of Jenmis and the lands owned in Jenmam right did not fall within article 31A as it stood under the First Amendment to the Constitution and which necessitated the Fourth Amendment to which I shall refer later.
The position of persons holding lands on Puravaka tenure would not be different from that of the Jenmis.
As the Puravaka lands were held not under the State or under a grant from it but under the Jenmis, though liable to pay Raja bhagam, they would not be 'estates '.
The case of the Pandaravaka Verumpattomdars would be similar and the lands held by them would also not fall within the category of 'estate. ' This would be so because they like ryotwari pattadars held the lands for cultivation directly from the State, and were niether intermediaries nor persons 820 who held their lands on a favourable tenure as regards the payment of land revenue in other words, they were not alienees of the Raja bhagam to any extent, and were therefore not intended to be affected by the First Amendment.
For this purpose it would make no difference whether the origin of the ryot 's proprietary interest in the land be traceable to the Hindu law concept of title based on occupation and cultivation or to the relinquishment by the State under the Travancore Proclamation of 1865 or even to the conferment of proprietary rights by the Cochin Proclamation of 1905.
It is only necessary to add that, their being outside the ambit of article 31A(2), and this would equally apply to the interest of the Jenmi, was not due to their tenure not being regulated by enacted law, as distinct from regulation either by the common law of by departmental instructions in the shape of the Standing Orders of the Board of Revenue or other similar bodies.
The point next to be considered is regarding the effect of the change brought about by the Fourth Amendment in 1955 which on its terms was also to have retrospective effect from the commencement of the Constitution.
Clause 3 of the Act which was substituted for the original cl. 1 of article 31A, provides for various types of legislation interfering with property rights, but in respect of the matter now in question the words in the original cl. 1 referring to "a law providing for the acquisition by the State of an estate of an any rights therein or the extinguishment or modification of any such rights" were left untouched.
In regard to the definition of an "estate" contained in cl. 2 the only change effected in sub cl.
(a) was the addition of the words "in the States of Madras and Travancore & cochin any Janmam right" after the word "grant" in the clause as it stood and in sub cl.
(b) the addition of the words "ryot and under ryot" 821 after the word "tenure holder" in the original clause.
After the amendment, the relevant words in article 31A read as follow: "(I) 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: 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 and in the Sates of Madras and Kerala, any Janman right; (b) the expression 'rights ' in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue.
" It is not open to dispute that if the words of the statute are clear their import or content cannot be modified or varied either by way of extension or of 822 diminution by reference to the presumed intention gatherable from the statement of objects and reasons to which I shall refer presently, for it is the enacted words that constitute the record of the intention of the legislature and where this is clear any extrinsic aid is forbidden.
Now let us look at the definition of an "estate" in sub cl.(a) where in express terms the lands held by a Jenmi are deemed to be a part of an estate.
The words that precede the newly introduced words still retain their original form, with the result that they continue to connot the same idea and their content remains unaltered.
The result of this would be that to the class of the lands of proprietors who were intermediaries and of others holding on favourable tenures which was designated as an "estate" under the First Constitutional Amendment, Jenmi lands were by specific ad hoc addition included.
If therefore the holding of a ryotwari proprietor was not comprehended within the definition of an estate, the same cannot be included by reason of Jenmi lands being brought in.
The argument that a raiyatwari holding has merely by the inclusion of the Jenmi become an "estate" would require the entire clause to be rewritten so as to make it read as embracing all lands which are subject to payment of land revenue to government.
I consider this contention so unreasonable and unrelated to the language used in the clause as not to deserve serious consideration.
Proceeding next to sub cl.
(b), I must point out that it was on the introduction into it of the words 'raiyat and under raiyat ' that almost the entire argument on behalf of the respondent was rested.
It is therefore necessary to scrutinize carefully the effect of these words.
There is no doubt that if the words 'raiyat and under raiyat ' had been introduced in sub cl.(b) as an independent category of persons whose interests were intended to be covered by the definition, just as the lands held by Jenmis were brought into sub cl.
(a) then the words 823 of the definition would have to be given full effect and the expression 'raiyat and under raiyat ' receive the construction urged before us by the respondent.
But they are, however, not introduced as an independent category as has been done in the case of the Jenmam right, but are wedged in the midst of the enumeration of the several types of tenures in estates such as those of proprietor, sub proprietor under proprietor and tenure holder persons deriving their title to the interest held by them either under grants by a sovereign or under a title derived from grantees from government, the clause continuing to be wound up by a reference to "other intermediaries".
As regards this a few observations may pertinently be made.
The first is that even after the Fourth Amendment, "the rights vesting in a proprietor" etc.
still continue to be a definition of "rights in relation to an estate" and if the word 'estate ' in cl.
(b) has to be read in the light of the definition of that word in cl.(a) no interest other than one in the estate of an intermediary or of a grantee on a favourable tenure and other than one in the estate of a Jenmi would be covered by sub cl.(b).
(2) I have already had occasion to point out that raiyats in proprietary estates like those of zamindars etc.
did not claim title to hold their lands from the proprietor but according to law, as understood their rights even preceded that of the proprietor, i.e., the rights vested in them even before their proprietor.
The interest of such raiyats cannot therefore be comprehended within the expression 'rights in relation to an estate ' which as ordinarily understood would mean 'rights created in an estate or held under the proprietor '.
Undoubtedly, the words 'raiyat and under raiyat ' introduced by the Fourth Amendment would comprehend this class of raiyats because they were raiyats in an estate as defined in sub cl.(a).
I am pointing this out for the purpose of showing that it is not as if the words 'raiyat and under raiyat ' would be without any 824 meaning if they were not taken to extend to the interest of every raiyatwari proprietor having, direct relationship with the State.
In this connection the decision in this Court in The State of Bihar vs Rameshwar Pratap Narain Singh (1) is very relevant.
The point in controversy before the Court was this.
Under the Bihar Land Reforms Act (1 of 1950), the ex intermediaries were conferred a ryoti interest in certain types of land previously held by them as proprietors.
As owners of these lands they had been holding melas in some places on these lands and were deriving considerable income therefrom.
By the Bihar Land Reforms Amendment Act of 1959, their right to hold melas was taken away and it was the validity of this enactment that was challenged in the case.
It was urged on their behalf that when the land holders were converted into raiyats, they were entitled to hold melas as an incident of their rights as raiyats and that this could not be adversely affected by State legislation without the same standing the test of scrutiny under articles 19, 31 etc.
of the Constitution.
The State of Bihar which was the respondent in the Writ Petition sought the protection of article 31A of the Constitution as amended by the Fourth Amendment.
Dealing with the meaning of the words the 'raiyat and under raiyat ' in article 31A(2)(b) this Court said: "It is reasonable to think that the word 'raiyat ' was used in its ordinary well accepted sense, of the person who holds the land under the proprietor or a tenure holder for the purpose of cultivation, and the word 'under raiyat ' used in the equally well accepted and oridinary sense of a person who holds land under a raiyat for the purpose of cultivation".
and speaking of the purpose of the Fourth Amendment it was observed: 825 "At that time laws had already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under raiyats who might answer the description 'intermediary ' were also within the definition because of the use of the word 'or other intermediary '.
The only reason for specifically including the rights of 'raiyats ' and 'under raiyats ' in the definition could therefore be to extend the protection of article 31A to laws providing for acquisition by the State Governments of rights of these 'raiyats ' or 'under raiyats '.
In the circumstances and in the particular setting in which the words 'raiyat ' or 'under raiyat ' were introduced into the definition, in must be held that the words 'or other intermediary 'occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added".
In other words, the decision was that the object achieved by the Fourth Amendment by the introduction of these two words in sub cl.
(b) was to rope in the interests of 'raiyats ' and 'under raiyats ' in 'estates ', notwithstanding that the ryot might not derive his interest, in his holding from the proprietor.
The lands held by a ryotwari proprietor other than those in 'estates 'would not be an 'estate ' within sub cl.
(a) nor the interest of such ryot in his holding an 'interest in an estate ' within sub cl.
(b) having regard to the collocation of the words which I have attempted to explain earlier.
In support of the construction that the holdings of ryots were comprehended within the definition of 'estates ' in article 31A(2), to submissions were made.
The first was based on the object sought to be achieved by the Fourth Constitutional Amendment Act as set out in the statement of objects and reasons of the Bill.
The passage relied on reads: 826 "While the abolition of zamindaris and the numerous intermediaries between the State and the tiller of the soil has been achieved for the most part our next objectives in land reform are the fixing of limits to the extent of agricultural lands that could be held or kept by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of landowners ' tenants and agricultural holders".
I am unable to accept the argument that this passage can be of any assistance in the construction of cl.
(a) or (b) of article 31A (2).
As already pointed out, any extrinsic aid to construction can sought only when the words of the statute reasonably and properly interpreted are of ambiguous import, and the construction of the clauses now under consideration leads to no ambiguity.
In the circumstances, to accept the construction contended for by respondent would be not to interpret the enacted words but to rewrite the clauses altogether.
Besides, article 31A makes provision for special cases where on account of overwhelming social needs, the protection normally afforded to the citizen by the guarantee of fundamental rights is withdrawn.
It would, I consider, be a proper rule of construction to interpret the terms of such a provision with strictness which would serve to preserve the area of the guaranteed freedoms from encroachment except as specially provided.
In other words, if the construction of article 31A were ambiguous, the ambiguity should be resolved in favour of the citizen, so as to preserve to him the guarantee of the fundamental rights guaranteed by articles 14, 19 and 31 except where the same has been denied to him by the clear words of the Constitution.
Secondly reliance was placed on three 827 decisions of this Court: Shri Ram Ram Narayan Medhi vs The State of Bombay (1), Atma Ram vs The State of Punjab (2) and Yavtamal vs State of Bombay (3).
In the two reported decisions, no doubt this Court held that interests of persons similar to those of raiyatwari proprietors were comprehended within the definition of an 'estate ' within sub cl.
(a) but the reasoning upon which this was rested in wholly inapplicable for resolving the controversy now before us.
In the first case Sri Ram Narain Medhi vs The State of Bombay (1), the Bombay Land Revenue Code 1879 contained a definition of an 'estate ' which included not merely the estates of intermediaries such as zamindars, taluqdars and other proprietors but also an occupant, i.e., a person who held directly under the government and whose property was assessed to land revenue in full.
The question however was whether the provision in article 31 A (2) (a) that the expression 'estates ' "shall have the same meaning as that expression has in the existing law relating to land tenures enforce in the area" could be read as permitting the exclusion from the definition of interests which were defined in such a law as 'estates ' on the ground that such interests were not those of an intermediary.
This Court held that full effect had to be given to these words and that the definition of an 'estate ' in a pre Constitution law relating to land tenures must determine the content of that expression.
It would be seen that the result would have been the same whether the case arose before or after the Fourth Amendment.
The decision in Atma Ram vs The State of Punjab (2) proceeds on an identical basis and turned on the definition of an 'estate ' in the Punjab Revenue Act 17 of 1887.
In this, as in the earlier case in relation to the Bombay Land Revenue Code, there could be no dispute that the enactment was a law in relation to land tenure.
The only question therefore was 828 whether full effect could or ought to be given to the words of the definition, and this was answered in the affirmative.
In my opinion, the learned Attorney General cannot derive any assistance from either of these decisions.
In the unreported decision in Yavatmal vs The State of Bombay (1) the challenge was to the validity of a Bombay enactment of 1958 which extended the Bombay Tenancy & Agricultural Lands Act 1956 to the Vidarbha region, an enactment whose constitutional validity had been upheld by this Court in Medhi 's case.
The argument before the Court was that the lands of the petitioners were not an 'estate ' and this, for the most part, was sought to be supported by the absence of any definition of the word 'estate ' in the Madhya Pradesh Land Revenue Code of 1954 which was taken to be "the existing law relating to landtenures" in the Vidarbha region.
This Court accepted the submission of Counsel for the respondent that article 31A applied to and saved the legislation from being impugned under articles 14, 19 and 31 for the reason that the interest of the petitioners in that case (who were bhoomiswamis) was the local equivalent of an 'estate '.
The decision, therefore, is no authority for the point now under consideration as to the proper meaning to be attached to the word 'raiyat ' and 'under raiyat ' in sub cl.
(2)(b) of article 31A or as regards the effect of the Fourth Amendment to the Constitution in regard to the point now under controversy.
From the foregoing it would be seen that the interests of the petitioner in the lands held by him on Puravaka tenure are within article 31A because they are lands belonging to a Jenmi and so covered by the definition of an 'estate ' as amended by virtue of the Fourth Amendment to the Constitution.
With regard, however, to the Pandaravaka Verumpattom lands I am clearly of the opinion that they are not an 'estate ' and that the interests of the 829 petitioner in them do not amount to "an interest in an estate" within sub cl.
(b) of article 31A(2).
It would follow that the validity of the impugned Act in relation to Pandaravaka lands would have to be considered with reference to articles 14, 19 and 31.
For the reasons stated in the judgment of this Court in Writ Petitions 114 and 115 which need not be repeated, I hold that the impugned Act is constitutionally in valid and cannot be applied to the Pandaravaka Verumpattom lands of the petitioner but that the petitioner would not be entitled to any relief as regards his other properties.
BY COURT: In accordance with the opinion of the majority, the petition is dismissed.
There will be no order as to costs.
Petition dismissed.
[/INST]A non resident company manufactured textile goods at P out side British India and sold the goods ex mills.
A firm, R & Co., guaranteed the sale price of goods sold ex mills by the company to purchasers at Ahmedabad within British India.
As the company maintained its accounts according to the mercantile system, the company debited R & Co., with the price of goods sold and credited the sales account with the amount of the bills.
R & Co., collected the amounts of the bills from the purchasers on behalf of the company and credited the sums realised in the company 's account with banks at Ahmedabad and also disbursed them to creditors of the company in British India.
These payments were credited by the company to R & Co. During the relevant accounting year the company thus received Rs. 12,68,480.
The company also received Rs. 4,40,878 from sales to purchasers in British India.
The amount of the sales bills for which hundis were drawn on the purchasers in favour of banks were debited by the company to the accounts of the respective merchants and credited to the sales account and the sums received by the banks from the purchasers against delivery of the railway receipts were credited by the company to the accounts of the respective purchasers.
In either case there was no change in the relationship of vendor and purchaser between the company and the purchasers by reason of the entries made in the company 's books.
The question as re framed by the High Court was whether these two sums were sale proceeds of the goods sold by the assesses to merchants in British India and whether they were received in British India and could be included in the assessable income of the company in British India: Held, per Mehr Chand Mahajan, section B. Das and Bhagwati J.J., (Vivian Bose J. dissenting) that the two amounts in question were sale proceeds of the goods sold and delivered by the company to merchants in British India ; that they were neither received by the company nor could be deemed to have been received by it when the entries were made in the books of account at P but had 951 merely accrued or arisen to it there; that they were first received by R & Co. and by the banks through whom the railway receipts were negotiated on behalf of the company in British India; and that they were therefore liable to tax under section 4(l) (a) of the Indian Income tax Act as having been received in British India on its behalf.
Though it is true that in the case of residents, if the assessee employs the mercantile system regularly it is obligatory on the income tax authorities to compute the income according to that system, it is doubtful whether that position would be available to a non resident who maintains his books of account outside British India according to the mercantile system.
Section 13 would only be relevant where the total profits of the assessee have to be computed and in that event the assessee would be entitled to claim that they should be computed according to the system of accounts maintained by him; it would not be relevant when stray items of income are sought to be assessed in the taxable territories as received in the taxable territories by a non resident.
Bose J.
In the case of accounts kept in the mercantile system, the profit or loss at the end of the accounting year is based not on a difference between what was actually received and what was actually paid out, but on the difference between the right to receive and the liability to pay.
The taxation in such cases is not on income, profits or gains which were received but on profits which "accrued or arose" to the assessee in the accounting year.
This view excludes section 4(l) (a) and this means that a resident is taxed in such cases under section 4(l)(b) and a non resident under section 4(l) (c).
Applying section 4(l) (c) to the present case, in the case of the Rs. 4 lakhs odd the profits accrued or arose in British India where the right to take delivery of the goods accrued and where the price was actually paid, but what is really taxable under section 4 (1) (c) is not the Rs. 4 lakhs odd, but the figures entered in the accounting year as the price of the various transactions which the Rs. 4 lakhs represented.
Similarly, in the case of Rs. 12 lakhs odd, it is the figure entered in the books in the accounting year relating to the transactions which is taxable.
By the Full Court.
The expression "deemed to be received" in section 4 (1) (a) means deemed by the provisions of the Act to be received.
Subramaniyan (Chettiar vs Commissioner of Income tax (2 I. T. C. 365), Ahmed Din Alladitta vs Commissioner of Income tax, Punjab , Kanwal Yayan Hanir Singh vs Commissioner of Income tax, Ajmer Merwara , Commissioner of Incometax vs Singari Bai (13 l.
T.R. 224) distinguished.
B.M. Kamdar, In re , Pondicherry Railway Co. vs Commissioner of Income tax (58 I.A. 239) and Commissioner of 952 Income tax vs Mathias (66 I.A. 23), Commissioner of Income tax vs Kameswar Singh , Commissioner of Income tax vs Chunilal Mehta referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 1083 of 1969.
Appeal from the Judgment and Order dated 5 12 1967 of the Allahabad High Court in Special Appeal No. 1068 of 1967.
J. P. Goyal and Sobhagmal Jain for the Appellant.
G. N. Dikshit and O. P. Rana for Respondents 1 3.
Yogeshwar Prashad and Mrs. section Bagga for Respondent No. 4.
The Judgment of the Court was delivered by TULZAPURKAR, J.
This appeal by certificate is directed against the judgment rendered by the Allahabad High Court on December 5, 1967 in Special Appeal No. 1068 of 1967 and raises a short question whether the appellant is entitled to the benefit of certain concessions (deductions) in the minimum price notified by the Cane Commissioner in his order issued on June 1, 1955 ? The appellant (Shri Janki Sugar Mills & Company) is a partnership firm carrying on the business of manufacturing sugar.
By an order passed on November 1, 1954 under section 15 of the Uttar Pradesh Sugar Cane (Regulation of Supply and Purchase) Act 1953, the Cane Commissioner reserved certain sugarcane centres for the appellant 's sugar 781 factory.
On November 12, 1954 (i.e. within 14 days of the reservation of the sugarcane centres) the respondent No. 4 (Laskar Co operative Cane Development Union Ltd.) made an offer for the 1954 55 crushing season for the supply of 6 lac maunds of sugarcane out of a total estimated yield of 12 lac maunds of sugarcane from certain centres.
This offer was accepted by the appellant firm on November 27, 1954 (i.e. within 14 days of the receipt of the offer) and an agreement in the prescribed Form 'C ' was duly executed on February 9, 1955.
It contained the usual term that the appellant firm will pay for the sugarcane supplied to it "at the minimum price notified by the Government subject to such deductions, if any, as may be notified by the Government from time to time".
On March 22, 1955 the respondent No. 4 made another offer for supplying additional quantity of 2 lac maunds of sugarcane to the appellant firm, which offer was also accepted on May 4, 1955 and a composite agreement in prescribed Form 'C ' was entered into on that very day for the supply of 8 lac maunds of sugarcane (inclusive of the initial 6 lac maunds).
This agreement also contained the usual term with regard to the payment being made "at the minimum price subject to such deductions as may be notified by the Government from time to time".
By a Press Note dated May 23, 1955 the Government of India notified its decision that certain deductions in the minimum cane price, on the basis of recovery of sugar from sugarcane, will be allowed to sugarcane factories in Uttar Pradesh on the cane supplied to them on and after May 1, 1955 but that the deductions will be allowed only on "unbonded cane" crushed by each factory and not on "bonded cane", the latter of which shall have to be purchased by each factory at the minimum cane price already fixed for the season.
In exercise of the powers under section 3 of the , (delegated to him by the Government of India under a Notification dated April 25, 1955), the Cane Commissioner, Uttar Pradesh issued a Notification on June 1, 1955 whereunder "the producers of sugar by vacuum pan process were allowed to make deductions as specified in the Schedule thereto from the minimum price of per maund of cane fixed for the season 1954 55 in respect of the unbonded sugarcane crushed on and after May 1, 1955".
The appellant firm taking advantage of this Notification granting concessions in the minimum price, made payments to Respondent No. 4 after making deductions in respect of the two lac maunds of sugarcane supplied to it, in respect whereof the offer had been made to it on March 22, 1955.
However, a Recovery Certificate under sections 17 and 18 of Uttar Pradesh Sugar Cane (Regulation of Supply and Purchase) Act, 1953 against the appellant firm for a sum of Rs. 53,878/10/ being the amounts deducted by the 782 appellant firm while making payments to Respondent No. 4.
The appellant firm disputed the legality of the Recovery Certificate on the ground that it had the right to make the deductions in view of the Cane Commissioner 's Notification dated June 1, 1955.
The said dispute was referred by the Cane Commissioner to the District Cane Officer, Bulandshahr as the sole arbitrator under Rule 108 of the U.P. Sugarcane (Regulation of Supply & Purchase) Rules, 1954.
By his award dated May 30, 1962, the District Cane Officer held that the appellant firm had wrongly made the deductions in respect of the supply of two lac maunds of sugarcane which was "bonded cane" and that the appellant firm was liable to pay the minimum price therefor.
Aggrieved by the award the appellant firm preferred an appeal to the Divisional Commissioner, Meerut under Rule 118 of the said Rules, but the appeal was dismissed on March 30, 1963.
The appellant firm challenged the legality of the award of the District Cane Officer as also the appellate order of the Divisional Commissioner by means of a writ Petition in the Allahabad High Court being Civil Miscellaneous Writ No. 2003 of 1963.
The learned Single Judge who heard the writ petition dismissed the same by his judgment and order dated October 24, 1967.
A further Special Appeal No. 1068 of 1967 carried by the appellant firm to the Division Bench of that Court also proved unsuccessful on December 5, 1967.
The appellant firm has come up in appeal to this Court.
The only contention that was urged by counsel for the appellant firm before us in this appeal was that the supply of two lac maunds of sugarcane made by respondent No. 4 to the appellant firm was not bonded sugarcane at all and as such the appellant firm was entitled to the concessions (deductions) in the minimum price payable in respect thereof to respondent No. 4 in view of the Cane Commissioner 's Notification dated June 1, 1955.
In support of this contention counsel relied upon sub cls.
(2) and (3) of cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1956 issued under section 16 of the Uttar Pradesh Sugarcane (Regulation of Supply & Purchase) Act, 1953 and it was pointed out that under sub cl.
(2) within 14 days of issue of the reserving certain areas for a factory a cane grower or a Cane growers ' Cooperative Society has to make an offer to supply cane grown in the reserved area to the occupier of the factory and under sub cl.
(3) it was obligatory upon the occupier of the factory for which such area has been reserved to accept the same within 14 days of the receipt of the offer and enter into an agreement in the prescribed form and it was urged that unless such offer was made within 14 days as prescribed 783 by sub cl.
(2) and was accepted within 14 days as prescribed by sub cl.
(3) the supply of sugarcane thereunder could not be regarded as supply of bonded sugarcane.
Counsel pointed out that the offer of two lac maunds of sugarcane in the instant case was made by respondent No. 4 long after the expiry of 14 days from the issuance of the order reserving certain areas for the appellant firm 's factory and that offer had been accepted not within the limit prescribed in sub cl.
(3) and, therefore, the sugarcane so supplied by respondent No. 4 to the appellant firm was not bonded sugarcane but ought to be classified as 'unbonded sugarcane ' and as such the appellant firm was entitled to the concessions in the minimum price notified in the Cane Commissioner 's Notification dated June 1, 1955.
It was further pointed out that though under sub cl.
(4) of cl. 3 of the U.P. Sugarcane supply and Purchase Order, 1954, the Cane Commissioner had the power to extend the date for making offers in respect of any reserved area, no such extension had been granted by the Cane Commissioner in the instant case, and, therefore, the offer of two lac maunds of sugarcane which was made by respondent No. 4 on March 22, 1955, long after the expiry of 14 days from the issuance of the order of the Cane Commissioner on November 1, 1954 reserving certain sugarcane centres for the appellant 's factory under section 15 of the Act, could not culminate into an agreement under the statute or the U.P. Sugarcane Supply and Purchase Order, 1954, that the agreement entered into between the parties on May 4, 1955 in respect of the said supply must be regarded as an ordinary contract under the Indian Contract Act and that the sugarcane supplied under such ordinary contract must be regarded as unbonded sugarcane.
In other words, the contention was that only such sugarcane as would be supplied by a cane grower or a Cane growers ' Cooperative Society under an agreement made in strict compliance of sub cls.
(2) and (3) of cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1954 could be regarded as bonded sugarcane.
The question raised in the appeal really turns upon what is meant by the expression "unbonded sugarcane" occurring in the Cane Commissioner 's Notification dated June 1, 1955 and the true effect of sub cls.
(2) and (3) of cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1954.
It must be stated, however, that neither the expression "bonded sugarcane" nor "unbonded sugarcane" has been defined either in the statute or in the U.P. Sugarcane Supply and Purchase Order 1954 and, therefore, regard must be had to the ordinary dictionary meaning of the said expressions.
In Shorter Oxford English Dictionary the legal and technical meaning of the expression ' "bond" 784 is given as "a deed by which the Obliger binds himself, his heirs, executors, or assigns to pay a certain sum to the obligee".
In Stroud 's Judicial Dictionary (4th Edn.) the expression "bond" is explained as: "an obligation by deed".
It will thus be clear that the expression "bonded sugarcane" must mean sugarcane secured by a bond or deed.
Under the Notification of the Cane Commissioner dated June 1, 1955 certain deductions from the minimum price per maund of cane fixed for the season 1954 55 had been notified in respect of the "unbonded sugarcane" crushed on or after May 1, 1955.
In other words, the concession is granted in respect of the supply of 'unbonded sugarcane ' in contradistinction with supply of 'bonded sugarcane '.
There is nothing in the Notification to suggest that any particular bond or a bond in accordance with the provisions of the U.P. Sugarcane Supply and Purchase Order 1954 was intended and therefore supply of 'bonded sugarcane ' would mean supply of sugarcane which has been secured by a bond or an agreement and such supply will not be entitled to the concession.
On a plain reading of the Notification in question, therefore, it will appear clear that since the supply of two lac maunds of sugarcane made by respondent No. 4 to the appellant firm had been secured by the agreement that was entered into between the parties on May 4, 1955 the said supply will have to be regarded as supply of "bonded sugarcane" and as such the appellant firm was not entitled to the concession in the minimum price payable in respect thereof to respondent No. 4.
Considering the question in the context of sub cls.(2) and (3) of cl.3 of the U.P. Sugarcane Supply and Purchase Order 1954 also we are clearly of the view that the appellant firm was not entitled to the benefit of the Cane Commissioner 's Notification dated June 1, 1955.
For this purpose it will be necessary to refer to section 15 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and set out Cl.
3 of the U.P. Sugarcane Supply and Purchase Order, 1954.
Under s.15(1) of the Act power has been conferred upon the Cane Commissioner after consulting the factory and the cane grower/Canegrowers ' Co operative Society to (a) reserve any area (hereinafter called the reserved area) or, (b) assign any area (hereinafter called an assigned area) for the purpose of the supply of sugarcane to a factory in accordance with the provisions of s.16 during one or more crushing seasons as may be specified.
It was under this provision that the Cane Commissioner has passed order dated November 1, 1954 reserving certain sugarcane centres (reserved area) for the appellant firm for the 1954 55 season.
785 Clause 3 of the U.P. Sugarcane Supply and Purchase Order 1954 runs thus: "3.
Purchase of cane in reserved areas. (1) The occupier of a factory shall estimate or cause to be estimated by the 31st day of October or such later date in a crushing season as, on an application being made to the Cane Commissioner by the occupier of a factory, may be fixed by the Cane Commissioner, the quantity of cane with each grower enrolled in the Grower 's Register and shall on demand submit the estimate to the Cane Commissioner and the Collector.
(2) A cane grower or a Cane growers ' Co operative Society may within 14 days of the issue of an order reserving an area for a factory, offer in Form A of the Appendix, to supply cane grown in the reserved area, to the occupier of the factory.
(3) The occupier of the factory for which an area has been reserved, shall, within fourteen days of the receipt of the offer enter into an agreement in Form B or Form C of the Appendix, with the Cane grower or the Canegrowers ' Cooperative Society, as the case may be, in respect of the cane offered: Provided that any purchase of cane made before the execution of the prescribed agreement shall be deemed to have been made in accordance with such agreement.
(4) The Cane Commissioner may, for reasons to be recorded in writing, extend the date for making offers in respect of any reserved area.
On a fair reading of the sub cls.(2) & (3) of cl. 3 of the Order two or three things become at once clear.
In the first place sub cl.(2) uses the expression 'may ' and provides that a cane grower or Canegrowers ' Co operative Society may within 14 days of the issue of an order reserving an area for a factory make an offer to supply the cane grown in the reserved area to the factory.
That the period of 14 days mentioned in this sub clause is not imperative or mandatory is also clear from sub cl.(4) which confers power upon the Cane Commissioner to extend the date for making offer in respect of any reserved area.
Secondly, sub cl.(3) uses the expression 'shall ' indicating that an imperative obligation is cast upon the factory to accept the offer 786 within 14 days from the receipt of the offer.
Reading the two sub clauses together, it becomes clear that if a cane grower or Canegrowers ' Cooperative Society makes an offer within 14 days mentioned in sub cl.(2) it is obligatory upon the occupier of the factory to accept that offer within 14 days of the receipt of the offer, this only means that if the offer is made by the cane grower or Cane growers ' Cooperative Society beyond the period specified in sub cl.(2) or the extended time under sub cl.(4) it would not be obligatory but optional for the occupier of the factory to accept the said offer but if such offer made beyond the prescribed or extended period is accepted by the occupier of the factory a binding agreement comes into existence between the parties and sugarcane supplied thereunder would be 'bonded sugarcane ', more so when the agreement is entered into in the prescribed form.
Merely because the offer from the cane grower or Cane growers ' Co operative Society emanates after the expiry of the period mentioned in sub cl.(2) it does not mean that the parties are prevented from entering into an agreement in the prescribed form and if they do enter into an agreement in the prescribed form, as was the case here, the sugarcane supplied thereunder would be 'bonded sugarcane '.
It is not possible to accept the contention of learned counsel for the appellant that sugarcane supplied by the cane growers or Canegrowers ' Cooperative Society could be regarded as 'bonded Sugar Cane ' only if offer of the Cane grower or the Cane Growers ' Co operative Society emanates within the period prescribed by sub cl.(2) and the same is accepted by the occupier within the period prescribed by sub cl.
As stated earlier, the true effect of sub cls.
(2) and (3) read together is that the compulsion or obligation to accept the offer on the part of the occupier of the factory arises only when the offer is made by the cane grower or Cane growers ' Co operative Society within the time prescribed by sub cl.(2) or the extended time under sub cl.(4) but if the offer is made after the expiry of that period it is optional for the factory occupier to accept it or not but in cases where he accepts such offer a binding agreement comes into existence, and the sugarcane supplied thereunder becomes "bonded sugarcane".
In the instant case the offer of additional quantity of two lac maunds of sugarcane was undoubtedly made long after the expiry of the period of sub cl.(2) but the same was accepted by the appellant firm and a binding agreement came into existence and what is more that a binding agreement was executed by the parties in the prescribed Form 'C '.
Further the conduct on the part of the appellant firm in referring the dispute to arbitration and filing an appeal against the arbitrator 's award under the relevant Rules clearly shows that the parties, particularly the appellant firm, treated the agreement dated May 4, 1955 787 as one under the Act and the U.P. Sugarcane and purchase Order, 1954.
We are, therefore, of the view that the authorities below were right in coming to the conclusion that the said additional supply of two lac maunds of sugarcane by respondent No.4 to the appellant firm was the supply of "bonded sugarcane" and, therefore, the appellant firm was not entitled to the benefit of the Cane Commissioner 's Notification dated June 1, 1955.
In the result the appeal fails and is dismissed with costs.
V.D.K. Appeal dismissed.
[/INST]On receipt of information that smuggled gold was stored in it, a large number of senior officials of the Customs Department surrounded the flat belonging to the brother in law of the appellant and started searching it.
According to the prosecution, while the search was on, the appellant was found peeping from outside through the grille forming part of the flat, and started running away, on seeing that the search was being carried on in the flat.
He was chased by the Customs Staff and caught.
Later his confession was recorded.
Along with the appellant several other persons had also been tried for the same offence.
The trial court convicted and sentenced the appellant of an offence under section 120B IPC read with section 135(1)(a) of the Customs Act.
On appeal the High Court found that the charge under section 135(1)(a) and (b) of the Customs Act was not sustainable but holding that the offence under other heads was proved, it upheld the appellant 's conviction and sentence.
It was contended on behalf of the appellant that the confession was the result of an assault on him by the Customs Officials, which not being voluntary was inadmissible in evidence under section 24 of the Evidence Act.
Allowing the appeal.
^ HELD: 1.
(i) It is unsafe to regard the appellant 's confession as voluntary and therefore trustworthy.
The concerned Customs Officials were "persons in authority" within the meaning of that expression used in section 24 of the Evidence Act.
The confession may well have been obtained in a manner which would bring it within the ambit of section 24 of the Evidence Act.
The appellant has been able to prove the existence of circumstances which make it highly probable that his confession is hit by the mandate in section 24.
[1169H 1170A, 1166C] (ii) Although there is no direct evidence that force was used on the appellant to extract a confession the surrounding circumstances prevalent at the relevant time in the Customs House where the statement was recorded indicate that all was not well with the manner in which the interrogation of various accused was being carried on.
They indicate that the Customs Officials did not stick to ethical standards in the performance of their duties and exhibited much zeal in bringing the captives to book and had transgressed the limit set by law.
[1166E, 1169B] (iii) One of the accused in this case was found to have seven injuries on his person.
The stand of that accused that he was coerced into making a confession, received support from the testimony of the doctor who examined 1161 him so that the probability appears to be that the accused received his injuries on the hands of the Customs staff.
In the absence of an explanation of the prosecution as to the situation in which he was beaten, it is reasonable to presume that the stand taken by him was correct and that the injuries were inflicted as a measure of coercion adopted to secure his confession.
Taking these circumstances into consideration, it is unsafe to regard the appellants confession too as voluntary.[1166F, 1168C, 1169G] Besides, the plea that he had been coerced into making the confession was taken at the earliest opportunity i.e. on the day following his release from custody on bail.
[1169D] 2.
Being a close relation of the owner of the flat, the appellant was perhaps sharing the flat with him and so had duplicate set of keys; his brother in law might have given the Bandi found on the appellant not for the purpose of carrying the gold but just for use as an ordinary raiment.
It is also possible that the appellant became nervous, that he thought that he would be implicated in the crime and therefore, might have started running away on seeing the Customs Officers in the house.
Therefore, these factors on which the High Court relied for sustaining his conviction cannot be regarded as incriminating circumstances.
[1165F 1166A]
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<s>[INST] Summarize the judgement(Criminal)No.
1339 of 1991.
(Under Article 32 of the Constitution of India).
R.K: Jain, A. Mariarputham, Ms. Aruna Mathut, Udai Lalit, Shankar C. Ghosh and Ms. Chanchal Ganguli for the Petitioner.
The Judgment of the Court was delivered by K.N. SINGH, J.
Smt.
Shashi Nayar wife of Raj Gopal Nayar who has been awarded death sentence for offence under Sec tion 302 of the Indian Penal Code [ 'IPC ' for short] has approached this Court by means of this petition under Arti cle 32 of the Constitution challenging the constitutional validity of death penalty.
Raj Goapal Nayar, the petitioner 's husband was tried for offence under Section 302, IPC for having killed his father and step brother.
The Sessions Judge by his judgment and order dated 24.4.1986 convicted Raj Gopal Nayar and awarded sentence of death.
On appeal, the High Court confirmed the death penalty and dismissed Raj Gopal 's appeal against the order of the Sessions Judge.
Raj Gopal thereafter filed a special leave petition before this Court challenging the judgment and order of the Sessions Judge and the High Court, but the special leave petition was also dismissed by this Court.
Review petition filed by him was also dismissed.
Consequently, his conviction and the sentence of death stood confirmed by all the courts.
Thereupon, he filed mercy petitions before the Governor of Jammu & Kashmir and the President of India, but the same were rejected. 'He chal lenged the order of the President of India rejecting the mercy petition before this Court by means of a writ petition under Article 32 of the Constitution, but the same was also dismissed.
Another writ petition under Article 226 of the Constitution was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him but the same was also rejected.
As the legal proceedings before the court failed, he was to be hanged on 26.10.1991.
Shashi Nayar, the petitioner, thereupon filed the present petition under Article 32 of the Constitution before this Court challenging the validity of the capital punishment with a prayer for the quashing of the sentence awarded to Raj Gopal Nayar.
The petition was entertained by a Division Bench on 25.10.1991 and the matter was referred to the Constitution Bench for consideration, and meanwhile the execution of the condemned prisoner was stayed.
Mr. Ravi K. jain, learned counsel for the petitioner made the following submissions: 106 (1) Capital punishment is violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person 's life.
(2) Capital punishment does not serve any social purpose and in the absence of any study, the barbaric penalty of death should not be awarded to any person as it has no deterrent effect.
(3) The penalty of death sentence has a dehumanising effect on the close relations of the victims and it deprives them of their fundamental rights under Article 21 of the Constitution, to a meaningful life.
(4) The execution of capital punishment by hanging is barbaric and dehumanising.
This should be substituted by d some other decent and less painful method in executing the sentence.
The questions raised by Shri Jain have already been consid ered by this Court in detail on more than one occasion.
In Jagmohan Singh vs State of U.P.,[1973] 1 SCC 20 and in Bachan Singh vs State of Punjab, , this Court has on a detailed consideration, held that the capital punishment does not violate Article 21 of the Constitution.
In Bachan Singh 's case (supra), the court considered all the questions raised in this petition except question No.4, and the majority judgment rejected the same by a detailed rea soned order.
Since we fully agree with those reasons, we do not consider it necessary to reiterate the same.
Learned counsel further urged that the view taken in Jagmohan Singh 's and Bachan Singh 's cases (supra) is incor rect and it requires reconsideration by a larger Bench.
He, therefore, requested us to refer the matter to a larger Bench as the question relates to the life of a citizen.
He urged that the award of death penalty is a serious matter as it deprives a citizen of his life in violation of Article 21 of the Constitution and as such the court should consider the matter again.
We are fully conscious of the effect of the award of capital punishment.
But we are of the opinion that the capital punishment as provided by the law is to be awarded in rarest of the rare cases as held by this Court.
The procedure established by law for awarding the death penalty is reasonable and it does not in any way violate the mandate of Article 21 of the Constitution.
Since we agree with the view taken by the majority in Bachan Singh 's and Jagmohan Singh 's cases (supra), we do not find any valid ground to refer the matter to a larger Bench.
Learned coun sel urged that the majority opinion in Bachan Singh 's case (supra) was founded upon the 35th Report of the Law Commis sion submitted in 1967, which summarises the recommendations in the following words: 107 "Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the coun try, to the vastness of its area, to the diversity of its population and to the para mount need for maintaining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment." Shri Jain urged that the above Report indicates that in 1967 the Law Commission was of the opinion that the country should not take the risk of experimenting abolition of capital punishment.
However, since then much water has flown.
Further, there is no empirical study before the Court to show that the situation which prevailed in 1967 is still continuing.
Hence, the Court should reconsider the matter.
We do not find any merit in this submission.
The death penalty has a deterrent effect and it does serve a social purpose.
The majority opinion in Bachan Singh 's case (supra) held that having regard to the social conditions in our country the stage was not ripe for taking a risk of abolishing it.
No material has been placed before us to show that the view taken in Bachan Singh 's case(supra) requires reconsideration.
Further, a judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today.
The present is, therefore, the most in opportune time to reconsider the law on the subject.
Hence the request for referring the matter to a larger Bench is rejected.
As regards the method of execution of the capital pun ishment by hanging, this Court considered the same in detail in Deena alias Deen Dayal & Ors.
etc., vs Union of India & Ors. etc.
, [1983] 4 SCC 645 and held that hanging by neck was a scientific and one of the least pain ful methods of execution of the death sentence.
We find no justification for taking a different view.
Shri Jain, howev er, brought to our notice that a learned Judge of this Court while sitting during vacation had issued notice to the State on the question as to whether the execution by hanging is a cruel and unusual procedure.
Hence, he urged that we should entertain this petition and reconsider the question.
Since the question of the mode of execution of capital punishment has already been considered in detail by this Court m Deen Dayal 's case (supra), we do not find any good reason to take a different view.
The question of reasonableness in the award of the capital punishment to Raj Gopal Nayar has been considered by the High Court and this 108 A Court at various stages and consistently it has been answered against the prisoner.
Hence the petition fails and is accordingly dismissed.
Interim relief order dated 25.10.
1991 is vacated.
V.P.R. Petition dismissed.
[/INST]The appellants ' lands were acquired under the Land Acquisition Act.
The appellants claimed land value at the rate of Rs. 10 per sq. yard, but the Land Acquisition Offi cer awarded compensation at the rate of Rs.0.88 per sq. yard.
On a reference the Sub Judge determined the market value at Rs. 11 per sq. yard on the basis of certain com parable transactions, but granted the compensation at the rate of Rs. I0 as the appellants themselves had claimed only at that rate.
On an appeal preferred by the Respondent State, the High Court determined the market value of the lands at the rate of Rs. 6.50 per sq. yard and reduced the total compensation, following the decision of this Court in Tribeni Devi vs Collector, Ranchi, AIR 1972 SC 141 that a deduction of 1/3 of the value is to be made when large extent of land is acquired under housing scheme.
Aggrieved by the High Court 's decision, the appellants preferred the present appeals, contending that the High Court had erroneously applied the principle laid down in Tribeni Devi 's case without properly appreciating the nature of the land in question and the purpose for which it had been acquired.
It was further contended that there was no justification for making any deduction since the land in question was fully developed and eminently suitable for being used as house sites.
Even in respect of the land acquired for the purpose of formation of the road, it was argued, the High Court wrongly proceeded on the basis that expenses have to be incurred for development.
On behalf of the Respondents, it was contended that the appellants ' lands form part of large tract acquired for the purpose of construction of 173 houses, that the other transaction based .on which compensa tion was decided by the Sub Judge, related to small plots of land which were fully developed and while comparing the transactions, it was necessary to take into account the development that is required to be made for bringing the acquired land suitable for the purpose of construction and that 1/3 of the value was rightly deducted.
Allowing the appeals, this Court, HELD 1.
The principle of deduction in the laud value covered by the comparable sale is adopted in order to arrive at the market value of the acquired land.
In applying the principle it is necessary to consider all relevant facts.
It is not the extent of the area covered under the acquisi tion, the only relevant factor.
Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position.
If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc.
then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
[177 D].
Tribeni Devi vs Collector, Ranchi, ; , distinguished.
Kaushalya Devi vs Land Acquisition Officer, ; ; Administrator General of West Bengal vs Collector, Varanasi, ; ; Special Tahsildar, Land Acquisi tion, Vishakapatnam vs Smt, A. Mangala Gown, ; , relied on.
2 In the instant case, the lands involved are of even level and fit for construction without the necessity for levelling or reclamation.
Having found that the land is to be valued only as building sites and stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduction.
[177 F H] 3.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circum stances it would be permissible to take into account the price fetched by the small plots of land.
If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a 174 developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted.
With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possi ble to utilise the entire area in question as house sites.
In respect of the land acquired for the road, the same advantages are available and it did not require any further development.
[178 B,C).
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<s>[INST] Summarize the judgementCivil Appeal No. 741 of 1987.
From the Judgment and order dated 6.2.1987 of the Rajasthan High Court in D.B. Civil Writ Petition No. 1632, 1758, 1826, 340, 1723, 344, 342, 343, 1755, 1756, 1757, 1982 of 1986, 170/87 and S.A. No. 341 of 1986 V.M. Tarkunde, Mrs. M. Karanjawala and Ezaz Maqbool for the Appellant in C.A. No. 741/87 Dushyant Dava, Ezaz Maqbool, Mrs. Manik Karanjawala for the Petitioners in W.P. No. 286/87.
C.M. Lodha, P.P. Rao, Badri Das Sharma, Raj Kumar Gupta and P.C. Kapur for the Respondents.
P.K. Jain for the Intervener in W.P. No. 286/1987.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These appeals by Special Leave, arise out of the judgment, dated, February 6, 1987 of the Division Bench of High Court of Rajasthan, disposing of by a common judgment a batch of writ appeals and writ petitions, in which was involved the question of the validity of certain provisions of the Recruitment Rules made and promulgated under the proviso to Article 309 of the Constitution by which, in respect of the scheme of competitive examinations to be conducted by the Public Service Commission for recruitment to certain branches of the civil services under the state, certain minimum qualifying marks in the viva voce test were prescribed.
The Division Bench, by its judgment under appeal, declared as arbitrary and unconstitutional this prescription in the rules which required that the candidates for selection to Administrative Service, the Police Service, and the Forest Service of the State should secure a minimum of 33% of the marks prescribed for the viva voce examination.
In these appeals the correctness of the High Court 's view is questioned by the State of Rajasthan, its Public Service Commission and the successful candidates whose selections were, in consequence of invalidation of the rule, quashed by the High Court.
The Writ Petition No. 286 of 1987 before us, is by another batch of candidates selected by the Public Service Commission for issue of a writ of mandamus, directing the State to effectuate the selection and 382 issue orders of appointment.
By an inter locutory order, dated 13.3.1987 the operation of the judgment under appeal was stayed by this court.
The result of this stay is that there was no impediment to effectuate the Select List dated 17.7.1986.
The Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules 1962, ( '1962 Rules for Short '); the Rajasthan Administrative Service Rules 1954, the Rajasthan Police Service Rules 1954, the Rajasthan Forest Service Rules 1962 contain a provision, special to the said three services, and not applicable to other services, that candidates, other than those belonging to Scheduled Castes and Scheduled Tribes, should secure a minimum of 33% of marks in the viva voce test.
It is this Rule which is the centre of controversy.
The Rules also stipulate that candidates for these three services must also secure 50% in the written examinations; but that is not in the area of controversy.
Proviso (1) to Rule 15 of the '1962 rules ' which is the relevant Rule brings out the point.
It provides: 15.
Recommendations of the Commission (1) The Commission shall prepare for each Service, a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate.
If two or more of such candidates obtain equal marks in the aggregate, the Comission shall arrange their names in the order of merit on the basis of their general suitability for the service: Provided that: (i) the Commission shall not recommend any candidate for the R.A.S./R.P.S. who has failed to obtain a minimum of 33% marks in the personality and viva voce examination and a minimum of 50% marks in the aggregate.
It shall also not recommend any candidate for other services who has failed to obtain a minimum of 45% marks in the aggregate.
(ii) (2) Notwithstanding anything contained in proviso (i), the Commission shall in case of candidates belonging to the Scheduled Castes or Scheduled Tribes recommend the names of such candidates, upto the 383 number of vacancies reserved for them for amongst.
those who have qualified for interview, even if they fail to obtain the minimum marks in viva voce or the aggregate prescribed under proviso (i) above. " (emphasis supplied) Similar is the purport of Proviso (i) to Rule 25 of the Rajasthan Administrative Service Rules 1954; the Rajasthan Police Service Rules 1954; the Rajasthan Forest Service Rules 1962 and the Rajasthan Forest Subordinate Service Rules 1963.
The Rajasthan Public Service Commission conducts the competitive examination for selection for appointment to these and several other services under the State.
The maximum marks for the written examination is 1400 and for the viva voce and personality test is 180, which constitutes 11.9% of the aggregate marks.
Rules in relation to the Administrative Police and Forest Services require that candidates should secure 33% as minimum qualifying marks in the viva voce.
The High Court has struck down these provisions stipulating the minimum cut off marks at the viva voce.
In the year 1985 the Rajasthan Public Service Commission initiated proceedings for selection to 16 services including the said three services.
The written examinations were conducted in october 1985 the results of which were published in April, 1986.
The viva voce examinations and personality test were conducted between June 11 & July 11, 1986.
The final Select List was published on 17.7.1986.
The five appellants in CA 741 of 1987 secured, respectively, 19th 23rd, 20th, 12th and 11th places.
The 5 petitioners in WP 286 of 1987 secured 10th, 13th, 14th, 17th and 18th places respectively in the Select List.
Some of the candidates who failed to secure .
the requisite minimum of 60 marks out of the 180 marks prescribed for the viva voce and could not, therefore, make the grade in the said three services challenged before the High Court.
The Select List on the ground of the unconstitutionality of the provision in the Rules stipulating such minimum cut off marks.
They filed Writ Petitions 1632 of 1986, 1723 of 1986, 1826 of 1986, 1842 of 1986, 1982 of 1986 and 170 of 1987 in the High Court.
The petitions were referred to and came before a Division Bench and were heard along with the special Appeals 340 to 344 of 1986 which had been preferred against an earlier decision on the same question by a single judge of the High Court.
We have heard Sri C.M. Lodha, Sri Tarkunde, and Sri Shanti Bhushan, learned Senior Advocates respectively, for the State of 384 Rajasthan, the Public Service Commission and the selected candidates; and Shri P.P. Rao Learned Senior Advocate for the unsuccessful candidates at whose instance the Select List was quashed by the High Court.
It was contended for the appellants that the High Court, in reaching such conclusions as it did on the constitutionality of Proviso (i) to Rule 15 of the " 1962 rules" and of the corresponding Provisions in the Rules pertaining to the other services wholly misconceived the thrust and emphasis of the pronouncements of this court in Ajay Hasia vs Khalid Mujib Sehravardi & Ors. etc.
; , ; Lila Dhar vs State of Rajasthan & Ors., [1982] 1 SCR 320 and Ashok Kumar Yadav vs State of Haryana and Ors.
, [1985] Suppl.
1 SCR 657.
It was urged that the High Court fell into a serious error in importing into the present case, principles laid down in a wholly different context and that in the said three decisions the question whether a minimum qualifying marks could be prescribed for a viva voce examination or not did not fall for consideration much less decided, by this court.
What was considered in those cases, counsel say, pertained to the proposition whether the setting apart of an excessive and disproportionately high percentage of marks for the viva voce in comparison with the marks of the written examination would be arbitrary.
Learned Counsel further submitted that reliance by the High Court on the Report of the Kothari Commission on the basis of which the prescription of minimum qualifying marks for the viva voce was done away with in the Competitive Examinations for the Indian Administrative Service, Police Service and other central services was erroneous as that report was merely an indication of a policy trend.
It was submitted that even the Kothari Commission had itself advised further evaluation of the matter.
It was further submitted for the appellants that the prescription of minimum qualifying marks for the written examination or the viva voce or for both, is a well recognised aspect of recruitment procedures and that a prescription of a maximum of 11.9% of the total marks for the viva voce examination, with a condition that the candidate must get at least, 33% out of these marks for selection to the three key services would not violate any constitutional principle or limitation; but on the contrary would, indeed, be a salutary and desirable prescription, particularly having regard to the nature of the services to which recruitment is envisaged.
It was submitted that personnel recruited to the high echelons of Administrative, Police and Forest services with the prospect, with the passage of time, of having to assume higher responsibilities of administration in these three vital departments of Government, should be tried men with dynamism and special attain 385 ments of personality.
It was pointed out that though the pay scale of the Accounts Service and Insurance Service are the same as that of the Administrative Service, such a prescription is not attracted to the selection to these other services.
Shri P.P. Rao, learned Senior Advocate, appearing for the candidates who had failed to secure the minimum at the viva voce and whose challenge to the selection had been accepted by the High Court, submitted that the principles which the High Court had accepted were sound and that the decision under appeal would require to be upheld.
Sri Rao submitted that the principles enunciated in the Ajay Hasia, Lila Dhar and Ashok Kumar Yadav acquire an added dimension in the context of the increasingly denuded standards of probity and rectitude in the discharge of public offices and that attempts to vest a wide discretion in the selectors should not be too readily approved.
According to Sri Rao, the real thrust of the principle laid down in these cases is that any marking procedure that make the oral test determinative of the fate of a candidate is, in itself, arbitrary.
Shri Rao relied upon the following passage in Ashok Kumar Yadav 's case [1985] Suppl.
1 SCR 657 at 697 98): ".
The spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test.
It is therefore obvious that the allocation of such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness, and in order to diminish, if not eliminate the risk of arbitrariness, this percentage need to be reduced. " (emphasis supplied) Shri Rao submitted that the correct test, flowing from the earlier decisions, is to ask whether the viva voce tended to become the determing factor in the selection process.
If so, it would be bad.
If this test is applied to the present case Sri Rao says, the requirement of minimum, cut off marks in the viva voce makes that viva voce a "de 386 termining factor" in the selection process and falls within the dictum of the earlier cases and the decision reached by the High Court accordingly is unexceptionable.
Sri Rao, sought to demonstrate how the Rule operated in practice and as to how candidates at the top of the results in written examination had failed even to secure the minimum in the viva voce, particularly in the Interview Board presided over by a certain Sri Khan.
He showed with reference to several instances how the performance in the written examination and the viva voce bear almost an inverse proportion.
The High Court accepted those grounds urged in invalidation of the impugned rule and held: " .
The question before us is slightly different and relates to the essential requirement of obtaining the prescribed minimum qualifying one third marks out of those allotted for the viva voce test, since the percentage of marks allot ted for the viva voce test as compared to the written test is within the permissible limit.
The test of arbitrariness even in such a case is however, indicated by the ratio decidendi of Ashok Kumar Yadav case (supra).
It was clearly held by the Supreme Court in Ashok Kumar Yadav 's case (supra) that any method which makes the viva voce test a determining factor in the selection process resulting in a candidate securing high marks in the written examination being easily knocked out in the race by awarding him low marks in the viva voce test and vice versa is arbitrary and is liable to be struck down on that ground .
We may now examine the merits of the rival contentions.
The modern state has moved far away from its concept as the 'Leviathan ' with its traditional role symbolised by the two swords it wielded one of war and the other of justice.
The modern, pluralist, social welfare state with its ever expanding social and economic roles as wide ranging as that of an Economic Regulator, Industrial Producer and Manager, Arbitrator, Educationist, Provider of Health and Social Welfare services etc., has become a colossal service corporation.
The bureaucracy, through which the executive organ of the state gives itself expression, cannot escape both the excitement and the responsibility of this immense social commitment of the Welfare State.
Today the bureaucracy in this country carries with it, in a measure never before dreamt 387 Of, the privilege and the burden of participation in a great social and economic transformation, in tune with the ethos and promise of the constitution for the emergence of a new egalitarian and eclectic social and economic order a national commitment which a sensitive, devoted and professionally competent administrative set up alone can undertake.
A cadre comprised of men inducted through patronage, nepotism and corruption cannot, morally, be higher than the methods that produced it and be free from the sins of its own origin.
Wrong methods have never produced right results.
What, therefore, should impart an added dimension and urgency to the Recruitment to the services is the awareness of the extraordinary vitality and durability of wrong selections.
With the constitutional guarantee of security, the machinery for removal of a Government Servant on grounds of in efficiency and lack of devotion remains mostly unused.
The authors of a work on "Britain 's Ruling Class"*** say: "ONE OF THE MAIN ATTRACTIONS of working for the Civil Service is job security.
Once they let you in, you have to do something spectacularly improper to get kicked out.
In 1978 out of 5,67,000 non industrial civil servants, just 55 were sacked for disciplinary reasons; 57 were retired early 'on grounds of inefficiency or limited efficiency '; 123 were retired early on grounds of redundancy '.
In practice, a modest dose of common sense and propriety allows you to stay a civil servant until you retire.
In the middle and senior administration grades many do just that.
82 per cent of permanent Secretaries have been in the Civil Service for 25 years or more; so have 79 per cent of Deputy Secretaries, 62 per cent of Under Secretaries and 70 per cent of Senior Executive officers." ".
Recruiting civil servants means picking as many potential high flyers as possible and at the same time as few potential albatrosses.
It is a task carried out by the Civil Service Commission with scrupulous honesty, but questionable efficiency.
" The history of the evolution of the civil services in some countries is in itself study in contrasts as fascinating as it is disquieting.
*** The Civil Servants; An Inquiry into Britain 's Ruling Class: Peter Kellnor and Lord Crowther Hunt at 388 In France, until the Revolution, almost every office, central or local, excepting the dozen or so of the highest offices were attainable only by private purchase, gift or inheritance.
All Public officer were treated as a species of private property and voluminous jurisprudence governed their transmission.
Of this spectacle, a learned authority on Public Administration says: "Prices rose, but there was a frantic buying.
Ministers made the most of their financial discovery.
As it soon be came too difficult to invent new offices, the old ones were doubled or trebled that is, divided up among several holders, who exercise their functions in rotation, or who did what the seventeenth and eighteenth centuries were too fond of doing, employed a humble subordinate to carry them out "offices were sought, then, with a frenzied energy, and they were created with synicism Desmarets, one of Louis XIV 's Comptroller Generals, had proposed to the King the establishment of some quite futile offices, and the latter asked who would ever consent to buy such situation? 'Your Majesty ' replied Desmarets, 'is forgetting one of the most splendid of the prerogatives of the Kings of France that when the King creates a job God immediately creates an idiot to buy it." (See Theory and Practice of Modern Government Herman Finer page 751) The much desired transformation from patronage to open competition is later development, to which, now, all civilised governments profess commitment.
However, though there is agreement in principle that there should be a search for the best talent particularly in relation to higher posts, however, as to the methods of assessment of efficiency, promise and aptitude, ideas and policies widely vary, though it has now come to be accepted that selection is an informed professional exercise which is best left to agencies independent of the services to which recruitment is made.
The 'interview ' is now an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates.
Macaulay had earlier clearly declared that a youngmen who in competition with his fellowmen of the same age had shown superiority in studies might well be regarded as having shown character also since he could not have pre 389 pared himself for the success attained without showing character eschewing sensual pleasures.
But the interview came to be recognised A as an essential part of the process of selection on the belief that some qualities necessary and useful to public servants which cannot be found out in a written test would be revealed in a viva voce examination.
In justification of the value and utility of the viva voce, the committee on Class I examinations in Britain said: B ". .
It is sometimes urged that a candidate, otherwise well qualified, may be prevented by nervousness from doing himself justice viva voce.
We are not sure that such lack of nervous control is not in itself a serious defect, nor that the presence of mind and nervous equipoise which enables a candidate to marshall all of his resources in such conditions is not a valuable quality.
Further, there are undoubtedly some candidates who can never do themselves justice in written examinations, just as there are others who under the excitement of written competition do better than on ordinary occasions .
We consider that the viva voce can be made a test of the candidate 's alertness, intelligence and intellectual outlook, and as such is better than any other . " As to the promise as well as the limitations of the viva voce, Herman Finer says: E "If we really care about the efficiency of the civil service as an instrument of government, rather than as a heaven sent opportunity to find careers for our brilliant students, these principles should be adopted.
The interview should last at least half an hour on each of two separate occasions.
It should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus, and a short verbal report could be required on such a subject, the scope of which would be announced at the interview.
As now, the interview should be a supplementary test and not a decisive selective test.
The interviewing board should include a business administrator and a university administrator.
The interview should come after and not before the written examination, and if this means some inconvenience to candidates and examiners, then they must remember that they are helping to select the government of a great state, and a little inconvenience H 390 is not to be weighed against such a public duty . (See Theory and Practice of Modern Government Herman Finer at page 779) The problems of assessment of personality are indeed, complicated.
On the promise as well as dangers of the purely 'personal interview ' method, Pfiffner Presthus in his 'Public Administration ' at page 305 says: "Pencil and paper tests that measure some aspects of personality are now available.
Notable among these are the so called temperament or personality inventories.
These consist of questions in which the applicant is asked to evaluate himself relative to certain aspects of psychiatry and abnormal psychology.
Such tests are subject to a great deal of controversy however, and there is a school of experimental psychologists which condemns them, mainly on two grounds.
First, individuals will not give honest answers in a competitive test that asks them to describe their abnormal and intimate behaviour or beliefs.
Second, it is maintained that the value of these tests lies in their use as the repeutic or clinical aids rather than as vehicles for com petition . ".
Appointing officers are afraid that examining procedures will fail to give proper attention to such qualifications.
The result is that they often feel they could do a better job of selection using only the personal interview.
There are at least two reasons why this cannot be allowed.
The first relates to the protective tendency of civil service; appointing officers may appoint brothers in law or personal favourites.
In addition, psychological research has shown that the interview is of questionable validity, even in the hands of an experienced executive.
The arguments in the case on the legality of the prescription of minimum qualifying marks in the viva voce turned more on the undesirability of such a condition in the background of the increasing public suspicion of abuse of such situations by the repositories of the power.
The standards of conduct in public life, over the years, have, unfortunately, not helped to lessen these suspicions.
Tests of this kind owing to be repeated on sloughts on the sensibilities of the public in the 391 past, tend themselves too readily to the speculation that on such occasions considerations other than those that are relevant prevail.
On a careful consideration of the matter, we are persuaded to the view that the prescription of minimum qualifying marks of 60 (33%) out of the maximum marks of 180 set apart for the viva voce examination does not, by itself, incur any constitutional infirmity.
The principles laid down in the cases of Ajay Hasia, Lila Dhar, Ashok Kumar Yadav, do not militate against or render impermissible such a prescription.
There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, expected to man increasingly responsible position in the core services such as the Administrative Services and the Police Services should be men endowed with personality traits conducive to the levels of performance expected in such services.
There are features that, distinguish, for instance, Accounts Service from the Police Service a distinction that draws upon and is accentuated by the personal qualities of the officer.
Academic excellence is one thing.
Ability to deal with the public with tact and imagination is another.
Both are necessary for an officer.
**Administrative and Police Services constitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation.
Indeed in Lila Dhar vs State of Rajasthan, [1982] 1 SCR 320, this Court observed: "Thus, the written examination assessees the man 's intellect and the interview test the man himself and 'the twain shall meet ' for a proper selection.
If both written examination and interview test are to be essential feature of proper selection the question may arise as to the weight to be attached respectively to them.
In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination.
The importance to be attached to the interview test must be minimal.
That was what was decided by this Court in Periakaruppan vs State of Tamil Nadu; Ajay Hasia etc.
vs Khalid Mujib Sehravardi & ** The dose that is demanded may vary according to the nature of the service .
392 Ors.
and other cases.
On the other hand, in the case of A service to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied . " (emphasis supplied) " .
There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality in the case of such services, where sound selection must combine academic ability with personality promise? some weight has to be given, though not much too great weight, to the interview test.
There cannot be any rule of thumb regarding the precise weight to be given.
It must vary from service to service according to the requirement of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and host of other factors.
It is a matter for determination by experts.
It is a matter for research.
It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives.
The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union Public Service Commission." (emphasis supplied) This Court indicated that in matters such as these, which reflect matters of policy, judicial wisdom is judicial restraint.
Generally matters of policy have little adjudicative disposition.
Indeed, the point raised in the appeals admits of the answer found in the pronouncement of this court in State of U.P. vs Rafiquddin & Ors., Judgments Today where this Court considered the permissibility of the prescription of minimum qualifying or cut off marks in viva voce examination, while dealing with clause (ii) of the proviso to Rule 19 (as it stood prior to the 1972 amendment) of the U.P. Civil Service (Judicial Branch) Rules 1951.
The provision required the selection committee, inter alia, to ensure that persons who did not secure sufficiently high marks in the interview were not 393 recommended for the posts.
Pursuant to the power thus reserved to it, the selection committee, prescribed certain minimum cut off marks for the interview.
This court upholding the validity of the prescription observed at page 264 and 265: " .
Aggregate marks obtained by a candidate determined his position in the list, but the proviso of the rule required the Commission to satisfy itself that the candidate had obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva voce which would show his suitability for the service.
The scheme underlying Rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva voce was the sine qua non before the Commission could proceed to make its recommendation in favour of a candidate for appointment to the service.
The Commission in view of clause (ii) of the proviso had power to fix the minimum marks for viva voce for judging the suitability of a candidate for service.
Thus a candidate who had merely secured the minimum of the aggregate marks or above was not entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva voce test ".
The Commission had, therefore, power to fix the norm and in the instant case it had fixed 35 per cent minimum marks for viva voce test.
The viva voce test is a well recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services.
Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks.
If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected.
Clause (ii) of the proviso to Rule 19 clearly confers power on the Commission to fix minimum marks for viva voce test for judging the suitability of a candidate for the service.
We do not find any constitutional legal infirmity in the provision." (emphasis supplied) 394 This should, in your opinion, conclude the present controversy in favour of the appellants.
Shri Rao 's reference to and reliance upon the observations in Yadav 's case is somewhat out of context.
The context in which the observations were made was that the spread of marks for the viva voce was so enormous, compared with spread of marks for the written examination, that the viva voce test 'tender to become the determining factor '.
The reference was to the possibility of a candidate underservedly being allotted high marks at the interview.
That is a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva voce.
The distinction in the two sets of situations is brought out in the words of an administrator Sir Ross Barket: "My experience, which has been chiefly confined to cases in which the number of candidates was not so large, is that the whole process is dangerous and infinitely hazardous.
I think most selection committees on which I have served have been very doubtful about the results of what they had done.
They have done their best on insufficient materials.
The process is I think fairly successful in weeding out the worst candidates . " (emphasis supplied) (See 'Union Public Service Commission M.A. Muttalib page 135) 11.
It is important to keep in mind that in his case the results of the viva voce examination are not assailed on grounds of mala fides or bias etc.
The challenge to the results of the viva voce is purely as a consequence and incident of the challenge to the vires of the rule.
It is also necessary to reiterate that a mere possibility of abuse of a provision, does not, by itself, justify its invalidation.
The validity of a provision must be tested with reference to its operation and efficacy in the generality of cases and not by the freeks or exceptions that its application might in some rare cases possibly produce.
The affairs of Government cannot be conducted on principles of distrust.
If the selectors had acted mala fide or with oblique motives, there are, administrative law remedies to secure reliefs against such abuse of powers.
Abuse vitiates any power.
We think that on a consideration of the matter, the High Court was in error in striking down the impugned rules.
Accordingly, these 395 appeals are allowed and the judgement dated 6.2.1987 of the Division A Bench of the High Court is set aside and the writ petitions filed before it challenging the validity of the impugned rules are dismissed.
It is not necessary to issue express directions in W.P. 286 of 1987 in view of the fact that pursuant to the orders of stay dated 13.3.1987, the select list dated 17.7.1986 became amenable to be acted upon.
With the setting aside of the Judgment of the High Court under appeal, the impediment in the effectuation of select list dated 17.7.1986 stands removed.
In the circumstances of these cases, there will be no order as to costs.
R.S.S. Appeals allowed.
[/INST]This appeal by special leave against the judgment of the High Court in writ petition, and the writ petition filed in this Court were directed against an order of detention passed by the District Magistrate against the appellant under sub section
(2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The appellant was a comission agent or broker engaged in illicit business of liquor traffic at Godhara in the State of Gujarat where there is total prohibition by importing liquor from Vanswada in Rajasthan.
On prior information that the appellant was about to import liquor in a truck on the night between 29th/30th December, 1986, the Gujarat police intercepted the truck and found it laden with cases containing bottles of whisky and beer, etc.
It was evident from the statements of the driver and the cleaner that the appellant had purchased the liquor from Vanswada.
The appellant could not be traced till 2nd February, 1987, when he was arrested but later released on bail.
On 28th May, 1987, the District Magistrate, Godhara, passed an order of detention and served it alongwith the grounds of detention on the appellant on the 30th when he was taken into custody.
The immediate and proximate cause for the detention was that on 29th/30th December, 1986, he had transported in bulk foreign liquor from Vanswada in Rajasthan for delivery in the State of Gujarat and indulged in anti social activities by doing illicit business of foreign liquor.
The grounds furnished particulars of two other criminal cases, namely (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor seized from his residence on 21st July, 1982, which had ended in acquittal as the prosecution witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to seizure of 24 bottles of foreign liquor from his house on 30th May, 1986, which was still pending.
288 The appellant filed the writ petition in the High Court assailing the order of detention.
The High Court declined to interfere.
The appellant then filed in this Court the appeal by special leave against the decision of the High Court and the writ petition, against the order of detention.
Dismissing the appeal and the writ petition, the Court ^ HELD: When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds of detention and afford him the earliest opportunity of making a representation against the order.
The power of preventive detention underany law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court.
The Court must be circumspect in striking down an order of detention where it meets with the requirements of article 22(5) of the Constitution.
[294C E; 295D E] Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention.
The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu.
There is apt to be some delay between the prejudicial activity complained of in section 3(1) of the Act and the making of an order of detention.
When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determining the identity of the persons engaged in these operations.
Their statements have to be recorded; their books of accounts and other related documents have to be examined.
Sometimes such investigation has to be carried on for months together.
The Directorate has to consider whether there is necessity in the public interest to direct the detention of a person under section 3(1) of the Act with a view to preventing him from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or from engaging in smuggling of goods, etc.
The proposal has to be cleared at the highest quarter and then placed before a Screening Committee.
If the Screening Committee approves, the proposal is placed before the detaining authority.
The detaining authority would necessarily insist upon sufficiency of grounds which 289 would justify the preventively detaining of the person.
Viewed from this prospective, the Court emphasised for the guidance of the High Courts that a distinction must be drawn between delay in making an order of detention under a law relating to preventive detention and the delay in complying with the procedural safeguards of article 22(5) of the Constitution.
The rule as to unexplained delay in taking action is not inflexible.
The Courts should not merely on account of delay in making an order of detention assume that the delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached.
Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the order of detention.
The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl.
W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Aibani vs Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan Delhi Administration, Crl.
W. No. 43/84 dated 16.4.1984 and Cases taking the same view did not lay down good law and were overruled.
In this case, the appellant was arrested on 2nd February, 1987.
The order of detention of the appellant was passed on 28th May, 1987.
Though there was no explanation for the delay between 2nd February and 28th May, 1987, it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention.
[295F G; 296B H; 297A G; 298C D] It could not be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did.
There was a mention in the grounds of the two criminal cases against the detenu Criminal Case No. 303/82 and Criminal Case No. 150/86 and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and, therefore, there was compelling necessity to detain him.
[300D] The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' was of little or no consequence.
The purpose of detention is to prevent the appellant from acting in any manner prejudicial to the maintenance of public order.
It was disputed 290 that the prejudicial activities of the appellant answered the description of a 'bootlegger ' as defined in section 2(b) and, therefore, he came within the purview of sub section
(1) of section 3 of the Act by reason of sub section
(4) thereof.
Sub section
(4) of section 3 with the explanation thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order '.
The district magistrate in passing the impugned order recorded his subjective satisfaction that with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order that he be detained.
In the accompanying grounds of detention this was the basis for the formation of his subjective satisfaction, and it was stated therein that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and, therefore, it was necessary to detain him under section 3(2) of the Act.
[300E G; 301C D] The contention that there was unexpected delay in the disposal of the representation made by the appellant to the State Government was wholly misconceived.
The representations were made by the appellant on 8th June, 1987.
The State Government acted with promptitude and rejected them on 12th June, 1987.
There was no delay.
[301F G] The appeal and the writ petition failed.
Khudiram Das vs State of West Bengal, ; ; Narendra Purshottam Umrao vs B.B. Gujral, ; ; Olia Mallick vs State of West Bengal, ; Golam Hussain @ Gama vs Commissioner of Police, Calcutta & Ors., ; ; Odut Ali Miah vs State of West Bengal, ; Vijay Narain Singh vs State of Bihar, [1954] 3 SCC 14; Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; ; Hemlata Kantilal Shah vs State of Maharashtra, ; ; Bal Chand Bansal vs Union of India & Ors., J.T. ; Ramesh Yadav vs District magistrate, Etah, and Suraj Pal Sahu vs State of Maharashtra, ; , referred to.
Anil Kumar Bhasin vs Union of India & Ors., Crl.
W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Alibani vs Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan & Ors., Crl.
W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl.
W. No. 43/84 dated 16.4.1984, overruled.
</s>
|
<s>[INST] Summarize the judgementAppeals Nos. 55, 888 and 889 of 1962 and 518 to 520, 722, 724, 725, 727 to 729 & 732 to 735 of 1963.
Appeals from the judgment dated August 19, 1958, of the Madras High Court in Referred Case No. 52, R. C. No. 90, 43 and 82, 33, 58 to 60, 64 and 65 of 1955 and 97, 98, 102, 112, 113 and 115 of 1956, respectively.
C. K. Daphtary, Attorney General, section V. Gupte, Solicitor General, Gopal Singh, R. H. Dhebar and R. N. Sachtliey, for the appellant (in C. A. No. 55 of 1962).
C. K. Daphtary, Attorney General, section V. Gupte, Solicitor General, N. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the appellant (in C. As.
888 889 of 1962 and 722, 724, 725, 728 to 729 and 732 to 735 of 1963) and for the respondents (in C. As.
Nos. 415 of 1962, 518 to 520 of 1963).
R. Ganapathy Iyer, for the appellants (in C. A. Nos.
518 to 520 of 1963) and for the respondents (in C. As.
55 of 1962, 888 to 889 of 1962 and 729, 732 and 735 of 1963).
K. Srinivasan and R. Gopalakrishnan, for the respondent (in C.A. Nos. 733 to 734 of 1963).
K. R. Chaudhuri, for the respondent (in C.A. No. 724 of 1963).
A. V. Viswanatha Sastri, K. Parasaran, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent (in C.A. No. 722 of 1963).
section Swaminathan and M. section Narasimhan, for the respondents ,(in C.A. Nos. 725 and 728 of 1963).
817 The Judgment of the Court was delivered by Subba Rao J.
These 16 appeals are filed against the Judg ment of the High Court of Judicature at Madras and raise the question of the effect of the Debtor and Creditor (Occupation Period) Ordinance No. XLII of 1948 of Malaya, hereinafter called the Ordinance, on the liability of the assessee to pay income tax in respect of pre occupation debts revived thereunder.
During the last World War Japan occupied Malaya.
During the period of their occupancy i.e., from February 1942 to September 1945, they introduced their own currency in dollars.
During that period both the currencies were in vogue though there was a progressive depreciation of Japanese currency in its relation to Malayan currency.
On September 5, 1945, the British Government re occupied Malaya and introduced the Malayan currency as legal tender in place of Japanese currency.
The Indian nationals, who were carrying on business in Malaya during the; period of Japanese occupation, were hit adversely and suffered losses.
The Government of India came to their rescue and by Notification dated August 14, 1947, they propounded a scheme to give them relief by allowing them to set off the losses incurred by them during the 5 years relevant to the assessment years 1942 43 to 1946 47 against the profits of the assessment years 1942 43 and 1941 42.
We shall consider the scheme in some detail at a later stage of the judgment.
On December 16, 1948, the Malayan Legislature passed the Ordinance declaring that payments made in Japanese currency by debtors to their creditors in respect of debts incurred prior to and during the Japanese occupation were to be valued and scaled down in accordance with the schedule appended to the Ordinance.
We shall deal with Ordinance in some detail at the appropriate place but the broad effect of the Ordinance was that though a debt had been discharged fully by paying the amount due in Japanese currency, the debt was revived in proportion to the depreciation of Japanese currency in relation to the Malayan currency as laid down by the schedule.
The creditor 's right to recover the debt to the said extent and the liability of the debtor to pay the same revived.
As the question raised is one of law and does not depend upon the peculiar facts of each case, we think it is enough if we 818 state briefly the facts of two cases, one illustrating the claim of an assessee against the imposition of income tax in respect of the income he realized by the revival of the debts and the other illustrating that of an assessee to an allowance on the ground that he paid the scaled down debts over again.
The respondent in Civil Appeal No. 722 to 735 of 1963 is a firm carrying on business of money lending in Kampar in Federated Malaya State.
It applied for relief under the special scheme.
It incurred loss for the aforesaid four years of Rs. 1,33,125.
For the years 1941 42 and 1942 43 it had a profit of Rs. 53,010 and Rs. 35,753 respectively.
The said profits were set off against the losses and the taxes paid by it for the years 1941 42 and 1942 43 were refunded to it.
After the Ordinance was passed, in terms of that Ordinance the respondent recovered 6,437 dollars during the previous year ending April 12, 1952 corresponding to the assessment year 1952 53.
Civil Appeals Nos.
518 to 520 of 1963 deal with the converse case.
The appellant therein is a Hindu undivided family carrying on, inter alia, a money lending business in its own village in Kaula Kubbu Bharu and Parit Buntar in the Federated Malaya States.
In the course of its business it had taken moneys as deposits from various persons before April 12, 1942.
During the period of occupation it discharged its liability to various creditors but after the publication of the Ordinance it had to pay again to creditors 6,214.58 dollars in the previous year ending April 12, 1950; 28,586 dollars for the previous year ending April 12, 1951; and 11,547 dollars for the previous year ending April 12, 1952.
The aforesaid amounts were claimed by the appellant as deductions respectively for the assessment years 1950 51, 1951 52 and 1952 53.
The following tabular form at a glance gives the claims of the assessees as creditors or debtors, as the case may be 819 1.
civil Appeal No. 2.
R.C. No. 3.
appellant 4.
Respondent 5.
Assessment year 6.
Claim 7.
Issue for determination 1.
722 t0 735 of 1963 & 55 of 1962 2.
33 of 1955 3.
of I.T., Madras 4. O. RM SP.
5. 1951 52 6.
$ 57395 69 7.
Creditor claims that the receipt is capital and not revenue.
Nil 2. 52 of 1955 3. do 4.
V. MR.
Firm Muar 5.
1951 52 6.
$39,851 7.
Nil 2. 58 of 1955 3.
VP.AL.
Chidambaram chettiar 5.
1951 52 6.
$9889 7.
Nil 2.
59 of 1955 3. do 4.
P. Alagappa Chettiar 5.
1951 52 6.
$355000 7.
Nil 2. 60 of 1955 3.
M. RM.
V. Venkatachalam Chettiar 5.
1951 52 6.
$9006 7.
Nil 2. 64 of 1955 3 do 4.
P. Alagappa Chettiar.
5. 1951 52 6.
$$35500 7.
Nil 2. 65 of 1955 3.
M. RM.
Swaminathan Chettiar 5.
1951 52 6.
$ 9006 7.
Nil 2.
97 of 1956 3.
M/s A.L.A. Firm 5. 1951 52 6.
$8388 7.
nil 2. 98 of 1956 3.
M. M. Firm 5.
1951 52 6. 6770 7.
Nil 2. 102 of 1956 3.
S.M. RM.
Meyyappa Chettiar & sons 5.
1950 51, 1951 52 6.
$1119, $3214 7.
Nil 2. 112 of 1956 3.
M. M. Firm (Penang) AR.
M. M. Arunachalam 5.
1953 54 6.
$2445 7 do 1.
Nil 2. 113 of 1956 3.
P. section R. M. Annamalai Subramaniam Chettiar 5.
1951 52 6.
$ 12004 7.
Nil 2. 115 of 1956 3.
M/s L. AR.
Firm 5.
1951 52 6.
$1979.62 7.
518 to 520 of 1963 2. 115 of 1956 3. O. V. R. SV.
Arunachalam Chettiar 4.
Commissioner of Income tax, madras 5.
1951 52, 1952 53 6.
$ 28, 586 $11, 574 7.
Debtor claims deduction , On account of this payment 1. 888 & 889 of 1962 2. 90 of 1955 3.
Commissioner of Income Tax, madras 4.
O. R. M. O. M. A. M. Chidambaram Chettiar 5.
1951 52 & 1952 53 6.
$ 6, 746 $664 7.
Creditor claims that the receipt is capital and not revenue.
Supp/64 9 820 The Income tax Officers held that during the period of Japanese occupation the debts were discharged and that the receipt of additional amounts under the Ordinance was in fact assessable to tax.
They also held that in the case of an assessee who was a debtor no deduction was permissible on the ground that the amounts paid represented only repayment of capital and not business expenditure.
On appeal the Appellate Assistant Commissioner held that the receipts by the assessee in respect of the revived debts were only realization of the original amounts lent and, therefore, could not be regarded as income.
In the case of the claim for deduction, he agreed with the view of the Income tax Officer.
On further appeal to the Tribunal, in the case of receipts it held that the assessee by claiming benefits under the scheme and in including all its cash and Bank balances in the Malayan business as part of the losses incurred therein in effect indirectly wrote off the debts due to them and, therefore, the recoveries under the Ordin ance were only a subsequent realization of the written off bad debts and, therefore, assessable to income tax.
In those appeals relating to deductions, the Tribunal confirmed the orders of the Appellate Assistant Commissioner.
The High Court answered the questions referred to it as follows: (1) Where an assessee has received repayments, he will not be liable to tax in respect of amounts he has received as or towards principal, but he will be so liable in respect of moneys which he has received as or towards interest.
Where only part of the debt has been recovered, the assesse will be at liberty, subject to the law relating to appropriation of payments, to appropriate the money he has received either towards principal or interest.
The assessment in respect of such receipts will proceed on this basis, that is to say, if the payment has been lawfully appropriated towards interest, will be liable to pay tax thereon.
But if he has lawfully appropriated it towards principal, he will not be liable to pay tax on it.
(2) Where an assessee has made payments, he will be entitled to deduct them from his income and claim exemption from tax for only such amounts as he has paid on account of interest.
He will not be entitled to deduct any payments on account of principal.
821 The Tribunal was directed to review the assessment in the light of the said directions.
The main reason given by the High Court for giving the said answers was that the result of the Ordinance was to revive the old debts and the question of the exigibility of the said income to tax can only be decided on the provisions of the Income tax Act and not by the terms of the scheme of the Ordinance.
Hence the appeals.
The learned Solicitor General, appearing for the Revenue, raised before us the following three points: (1) Sub section
(2) of section 4 of the Ordinance on which reliance was placed by the High Court applies only to pre occupation capital debts and the debts with which the appeals are concerned are not pre occupation capital debts and, therefore, they are not revived thereunder.
(2) The assessees having taken benefit under the scheme propounded by the Government of India which contained a condition that if any recoveries subsequently made would be taken as income,, they are now precluded from contending that the, amounts realized towards the revived debts are not taxable on the principle of approbate and reprobate.
And (3) on a reasonable construction of the relevant sections of the Ordinance it should be held that there was no revival of the debts but only that the State had provided for compensation for the losses incurred during the occupation period by the assessees.
The first question had not been raised at any stage of the proceedings before the Tribunal and the High Court.
Nor does it find a place in the statement of case.
We cannot, therefore, allow the learned Counsel to raise it for the first time before us.
Nor has the second question been raised in the High Court in the form in which it is presented before us.
The scheme propounded by the Government of India, inter alia, contains the following provisions : (i) No assessee was under any obligation to accept the scheme.
If he desired to opt for the scheme be was required to give option with one month after he was informed of the scheme.
(ii) An assessee was permitted to include in his expenses certain items which would be inadmissible under the Indian Income tax Act.
(iii) The losses suffered by an assessee during the five years relevant to the assessment years 1942 43 to 1946 47 were to be aggregated.
822 (iv) An assessee was permitted to carry the aggregated loss backward and set it off against his profits for the assessment year 1942 43.
(v) Any loss still unabsorbed could be carried backward to the year 1941 42.
(vi) Any excess tax found to have been paid after recomputing the income of an assessee by carrying his loss backward could be refunded to him.
(vii) The loss could not be carried forward.
The Central Board of Revenue issued further instructions on the above scheme by its letter dated December 1, 1947.
One of the instructions was that debts due to the assessee if paid in Japanese currency would be taken to have been satisfied to that extent and excluded from the asset side in the balance sheet, provided that if any recovery was subsequently made, it was to be taken as income.
Briefly stated, under the scheme the losses suffered by an assessee during the assessment years 1942 43 to 1946 47 were set off against his profits for the assessment years 1942 43 and 1941 42 and any unabsorbed loss could not be carried forward.
The debts discharged in Japanese currency were excluded from the assets side in the balance sheet but the authority reserved for itself the right to treat any recoveries subsequently made as income.
The contention is that the assessees having opted to accept the scheme, derived benefit thereunder, and agreed to have their discharged debts excluded from the asset side in the balance sheet subject to the condition that subsequent recoveries by them would be taxable income, they are now precluded, on the principle of "approbate and reprobate", from pleading that the income they derived subsequently by realization of the revived debts is not taxable income.
The doctrine of "approbate and reprobate" is only a species of estoppel; it applies only to the conduct of parties.
As in the case of estoppel, it cannot operate against the provisions of a statute.
If a particular income is not taxable under the Income tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine.
Equity is out of place in tax law; a particular income is either exigible to tax under the taxing statute or it is not.
If it is not the Income tax Officer has no power to impose tax on the said income.
The decision in Amarendra Narayan Roy vs Commissioner of Income tax, West Bengal(1) has no bearing on the question raised (1) A.I.R. 1954 Cal.
271. 823 before us.
There the concessional scheme tempted the assessee to disclose voluntarily all his concealed income and he agreed to pay the proper tax upon it.
The agreement there related to the quantification of taxable income but in the present case what is, sought to be taxed is not a taxable income.
The assessee in such a case can certainly raise the plea that his income is not taxable under the Act.
We, therefore, reject this plea.
To appreciate the third argument it is necessary to notice the relevant terms of the Ordinance.
The Ordinance was issued by the Malayan Government to regulate the relationship between the debtor and creditor in respect of debts incurred prior to and during the period of the enemy occupation of the territories comprising the federation of Malaya.
The relevant sections of the Ordinance read: Section 4.
Discharge during occupation period of preoccupation debts : (1) Subject to the provisions of sub section
(2) of this section, where any payment was made during the occupation period in Malayan currency or occupation currency by a debtor or by his agent or by the Custodian or a liquidation officer purporting to act on behalf of such debtor, to a creditor, or to his agent or to the Custodian or a Liquidation Officer purporting to act on behalf of such creditor, and such payment shall be a valid discharge of such pre occupation debt to the extent of the face value of such payment.
(2) In any case (a) where the acceptance of such payment in occupation currency was caused by duress or coercion; or (b) where such payment was made after the thirtyfirst day of December 1943, in occupation currency in respect of a pre occupation capital debt, exceeding two hundred and fifty dollars in amount, which (i) was not due at the time of such payment; or (ii) if due, was not demanded by the creditor or by his agent on his behalf and was not payable within the occupation period under a time essence contract; 824 (iii) if due and demanded as aforesaid was not paid within three months of demand or within such extended period as was mutually agreed between the creditor or his agent and the debtor or his agent; or (c). . such payment shall be revalued in accordance with the scale set out in the Schedule to this Ordinance and shall be a valid discharge of such debt only to the extent of such revaluation.
THE SCHEDULE 1.
(a) : Where any such payment as it mentioned in sub section (2) of section 4 of this Ordinance was made in occupation currency during any month or on any day mentioned in the first column of the scale set out in paragraph 3 of this Schedule, such payment shall be revalued by taking the number of dollars in occupation currency set out opposite such month or day in the second column of the said scale as equivalent to one hundred dollars Malayan currency, and so in proportion for any portion of such payment amounting when revalued, to less than one hundred dollars Malayan currency.
(b) Where any such payment was made in occupation currency on or after the thirteenth day of August 1945, the value of such payment shall be taken to be nil.
(a) : In the case of an unsatisfied occupation debt or part thereof which falls to be revalued under section 6 of this Ordinance such debt or part thereof shall be revalued at the appropriate date as provided in the said section or sub section by taking the number of dollars in occupation currency mentioned opposite such month or day in the second column of the scale set out in paragraph 3 of this Schedule as equivalent to one hundred dollars Malayan currency, and so in proportion for any portion of such debt amounting, when revalued to less than one hundred dollars Malayan currency.
(b)When any such debt or part of a debt fell due for payment on or after the thirteenth day of August 1945,its value shall be taken to be nil.
Sliding scale of the value of occupation currency 1942 45.
We have not allowed the Solicitor General to contend that sub section
(2) of section 4 of the Ordinance does not apply to the debts in 825 question as throughout the proceedings of this case it was assumed that it applies to the said debts.
During the Japanese Occupation both the Japanese currency and the Malayan currency were in vogue.
In January 1943 the Japanese currency began to depreciate and by August 13, 1945, it ceased to be of any value.
During that process of devaluation debts were paid off and received in Japanese currency which resulted in loss to the creditors.
To regulate the relationship between creditors and debtors.
during that period the said Ordinance was passed by the Malayan Legislature on December 16, 1948.
Under the said Ordinance payments in Japanese currency were to be valued and scaled down in accordance with the Schedule appended to the Ordinance.
If a debtor had paid his debt in depreciated Japanese currency, he was required to pay over again a certain amount to be ascertained by the application of the provisions of the Schedule.
In terms sub section
(2) says that the payment in Japanese currency shall be a valid discharge of such debt only to the extent of such revaluation.
When the payments made towards debts were scaled down, the debts were revived in regard to the balance of the debt.
After the making of the Ordinance, the creditor could enforce his debt to the extent not discharged and the debtor had the obligation to discharge the same.
On the express terms of the Ordinance it is impossible to accept the contention that the State provided for compensation for the losses incurred bY the assessees.
indeed the State did not pay any compensation at all.
The legal relationship of the creditor and debtor was not created by the Ordinance but it was regulated on the basis of the pre existing relationship.
We, therefore, hold, agreeing with the High Court, that under the Ordinance the discharged debts became enforceable to the extent of the balance of the amount due after the scaling down of the payments.
If so, the Income tax Officer could only impose tax on the income recovered by the assessees thereafter towards their debts if such income was taxable under the provisions of the Act.
So too, in regard to the payment made by the assessees towards such debts they could claim relief by way of deductions only if such deductions were permissible under the Act.
The High Court held that the assessees who had received repayments would not be liable to tax in respect of amounts they had received towards principal but they would be so liable in respect of moneys which they had received towards interest.
It further held that those assessees who had made payments towards the 826 debts would be entitled to deduct from their income and claim exemption from tax only such amounts as they had paid on account of interest but they would not be entitled to deduct any payment made on account of principal.
The High Court also gave a direction that in the case of open payments the respective amounts paid towards principal or interest should be ascertained in accordance with the law of appropriation of payments.
Neither the learned Solicitor General, who appeared for the Revenue, nor the learned counsel, who appeared for the assessees, questioned the correctness of the said directions if the construction we placed on the Ordinance was correct.
The directions given by the High Court will, therefore, stand.
In our view, the High Court gave correct answers to the questions referred to it.
In the result the appeals are dismissed with costs.
One hearing fee.
[/INST]The Japanese currency introduced into Malaya during the Japanese occupation began to depreciate after January 1963, so that debts paid off and received in that currency resulted in loss to the creditors.
The Government of India, by a notification issued in 1947, propounded a scheme to give relief to Indian nationals carrying on business in Malaya, and the Central Board of Revenue issued further instructions on the scheme.
One of the instructions was that if any creditors opted to accept the scheme, a recovery subsequently made by them, with respect to the debt due to them was to be taken as their income.
In 1948, the Debtor and Creditor (Occupation Period) Ordinance No. XLII of 1948, of Malaya was passed by the Malaya Legislature.
Under that Ordinance, payments made in Japanese currency were to be valued and scaled down in accordance with its Schedule, so that a payment in Japanese currency would be a valid discharge of a debt only to the extent of such revaluation.
A creditor could enforce his debt to the extent not discharged and the debtor was under an obligation to discharge it to that extent.
On the questions as to (i) whether amounts, recovered by creditors who had accepted the scheme, from their debtors, in terms of the Ordinance, were liable to income tax; and (ii) whether the debtors could claim the payments made by them as deductions, the High Court held, (i) that the assessees who had received payments would not he liable to tax in respect of amounts they had received towards principal, but they would be so liable in respect of moneys which they had received towards interest; and (ii) that those assessees who had made payments towards the debts, would be entitled to deduct from their income, and claim exemption from tax only such amounts as they had paid on account of interest, but they would not be entitled to deduct any payment made on account of principal.
The High Court also gave directions that open payments should be appropriated according to the law of appropriation of payments.
The Commissioner and a debtor assessee appealed to the Supreme Court.
HELD : The appeals should be dismissed.
(i) The creditor assessees were not ' precluded on the principle of "approbate and reprobate" from pleading that the income they derived subsequently, by realisation of the revived debts, was not taxable income.
The doctrine was only a species of estoppel and cannot operate against the statute.
If a particular income is not taxable under the Income tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine.
[822 F H] (ii) Under the Ordinance, the discharged debts became enforceable to the extent of the balance of the amount due after the scaling down of the 816 payments, and the contention of the Revenue that the State provided for compensation for the loss incurred by the creditor assessees could not be accepted.
[825 B E] (iii) The Income tax Officer could only impose income tax on the income recovered by the assessees thereafter towards their debts if such income was taxable under the provisions of the Act.
So too in regard to the payments made by the Assessees towards such debts, they could claim relief by way of deduction only if such deductions were permissible under the Act.
[825 F G]
</s>
|
<s>[INST] Summarize the judgementAppeals Nos. 1845 and 1846 of 1968.
Appeals by special leave from the judgment and order dated January 10, 1968 and October 20, 1967 of the Mysore High Court in Writ PetitiOns Nos.
1519 of 1067 and 1216 of 1965 respectively.
Jagdish Swarup, Solicitor General of India and section P. Nayar, for the appellants (in all the appeals).
section section Javali and M. Veerappa, for respondent No. 1 (in C.As.
184 1 and 1946 of 1968 ).
section L. Bhatia for respondents Nos. 1 and 2 (in C.A. No. 50 of 1969.
994 section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the Intervener (in C.A. No. 1845 of 1968).
The Judgment of the Court was delivered by Khanna, J.
Whether the criterion to determine the seniority of R avi Varma and Ganapathi Kini respondents should be length of service in accordance with the Office Memorandum dated June 22, 1949 issued by the Ministry of Home Affairs, as claimed by the said respondents, or whether it should be the date of confirmation, as claimed by the appellants, is the main question which arises for decision in civil appeals Nos. 1845 and 1846 of 1968 which have been filed by the Union of India and two others by special leave against the judgment of Mysore High Court.
Similar question arises in respect of the seniority of Suresh Kumar and Tara Chand Jain, respondents in civil appeal No. 50 of 1969 which has been filed by the Union of India and two others on a ,certificate granted by the Punjab and Haryana High Court against the judgment of that Court reversing in Letters Patent appeal the ,decision of the single judge and issuing a writ in favour of those respondents.
The High Court held in all the cases that the seniority of the concerned respondents should be determined on the basis of the length of service in accordance with the above ,mentioned Office Memorandum.
Before giving the facts of the three cases, it would be pertinent to refer to two Office Memoranda issued by the Ministry of Home Affairs.
One of the memoranda is dated June 22, 1949.
It was mentioned in this memorandum that the Government of India had under consideration the question of the fixation of seniority of ;displaced government servants and temporary employees in the various grades.
Employees of the Central Government who were displaced from their offices in Pakistan, according to the memorandum, had been absorbed in offices under the control of the same administrative ministry or on nomination by the Transfer Bureau of the Ministry of Home Affairs in other offices.
All those persons had been appointed, with a few exceptions, on tem porary basis.
The Ministry of 'Home Affairs accordingly conveyed the following decision : "It has now been decided in consultation with the Federal Public Service Commission that the question of seniority in each grade should also be examined in the same context and specific rules suitable for each service prescribed in framing those instructions.
The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and Federal Public Service Commis 995 sion and the decisions reached are incorporated in para 8 of the 'Instructions for the initial constitution of the grade of Assistants ' an extract of which is attached.
It has been decided that this rule should generally be taken as the model in traming the rules of seniority for other services and in respect of persons employed in any particular grade seniority should, as a general rule, be determined on the basis of the length of service in that Grade irrespective of whether the latter was under the Central or Provincial Government of India or Pakistan.
It has been found difficult to work on the basis of 'comparable ' posts or grades and it has there fore been decided that 'Service in an equivalent Grade ', should, generally be defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned.
The seniority of persons appoi nted on permanent or quasi permanent basis before the 1st January, 1944 should, however not be disturbed.
" Direction was accordingly issued by the Ministry of Home Affairs that the principles given in the Memorandum be borne in mind in determining the seniority of 'Government servants of various categories employed under the Ministry of Finance, etc. ' On December 22, 1959 another Office Memorandum was issued by the Ministry of Home Affairs on the subject of the general principles for determining seniority of various categories of persons employed in Central services.
Material part of this memorandum was as under: "The instructions contained in this Ministry 's Office Memorandum No. 30/44/48 Apptts, dated the 22nd June, 1949, were issued in order to safeguard the interests of displaced Government servants appointed to the Central Services after partition.
As it was not possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appointed to Central Services.
The principles contained in the 22nd June, 1949, orders were extended to (i) ex Government servants of Burma appointed to Central Services; and (ii) the employees of former part 'B ' States taken over to the Centre as a result of Federal Financial_ Integration.
996 The instructions contained in this Ministry 's Office Memorandum No. 32/10/49 CS dated the 31st March , 1950 and No. 32/49 CS(C), dated the 20.h September, 1952 similarly regulate the seniority of candidates with war service appointed to the Central Services.
The question has been raised whether it is necessary to continue to apply the in structions contained in the Office Memoranda cited above.
Displaced Government servants have by and large been absorbed in the various Central Services and their seniority has been fixed with reference to the previous service rend red by them.
Similarly, the seniority of ex employees of the Government of Burma and of Part 'B ' States as we I as of candidates with war service has already been determined in accordance with the instructions cited above.
As the specific objects underlying the instruction is cited above have been achieved, there is no longer any reason to apply those instructions in preference to the normal principles for determination of seniority.
It has, therefore, been decided in consultation with the Union Public Se vice Commission, that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the General principles annexed hereto.
The instructions contained in the various office memoranda cited in paragrah I above are hereby cancelled, except in regard to determination of seniority of persons appointed to the various Central Services prior to the date of this Office Memorandum.
The revised General principles embodied in the Annexure will not apply with retrospective effect, but will come into force with effect from the date of issue of these 'orders, unless a different date in respect of any particulate service/ grade from which these revised principles are to be adopted for purposes of determining seniority has already been or is hereafter agreed to by this Ministry. ', Relevant parts of paragraphs 2, 3 and 4 of the Annexure to this Memorandum were as under : "2 Subject to the Provision of para 3 below, persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall retain the relative seniority already assigned to them or such seniority as may hereafter be assigned to them under the existing orders applicable to their cases 997 and shall en bloc be senior to all others in that grade.
Subject to the provisions of para 4 below, permanent officers of each grade shall be ranked senior to persons who are officiating in that grade.
Direct Recruits : Notwithstanding the provisions of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recomendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection.
Ravi Varma, respondent No. 1 in civil appeal No. 1845 of 1968.
was appointed as an Inspector in the Central Excise Collectors in Madras on 27 5 47 and was confirmed on 7 4 56.
Ganapathi Kini respondent No. 1 in civil appeal No. 1846, was appointed as an inspector in the Central Excise Collectorate in Madras on 28 5 47.
In view of the war service rendered by Ganapathi Kini, his service for purposes of seniority was computed with effect from 10 10 46 and he was confirmed on 7 4 56.
Ganapathi Kini and Ravi Varma were shown at serial Nos. 115 and 141 in accordance with the length of service in seniority list of inspectors prepared in 1959.
Subsequently on the directions of the Central Board of Revenue contained in letter dated October 19, 1962, a revised seniority list was prepared in 1963 by computing seniority from the date, of conifirmation.
In the revised list Ganapathi Kini and Ravi Varma were shown at serial, Nos. 149 and 150, junior to persons to whom they had been shown senior in the earlier seniority list.
Ganapathi Kini and Ravi Varma thereupon filed petitions under article 226 of the Constitution of India praying for quashing the revised seniority list prepared in 1963.
The main ground taken in the writ petitions was that the seniority should be determined according to length of service in terms of Office Memorandum dated June 22, 1949 of the Ministry of Home Affairs.
Impleaded in the writ petitions as respondents were the Union of India, the Central Board of Revenue and the Collector of Central Excise as also those inspectors of Central Excise who, according to the petitioners, were junior to them but who on account of being shown senior to the petitioners in the revised seniority list, had been appointed as Senior Grade Inspectors of Central Excise.
The above mentioned writ petitions were resisted by the appellants.
The learned judges of the Mysore High Court referred to the memoranda dated June 22, 1949 and December 22, 1959 L736SupCI/72 998 and held that the altered rule embodied in the Memorandum dated December 22, 1959 for the determination of seniority would be inapplicable to persons appointed before June 22, 1949 like Ganapathi Kini.
Argument was advanced on behalf of the appellants that on July 3, 1957 the Central Board of Revenue had again adopted the rule that the date of the confirmation should form the basis for determination of seniority.
This argument did not find favour with the learned judges,and it was observed "But what is however clear is that in the case of a person like the petitioner who was appointed before June 22, 1949 the rule made by the Ministry of Home Affairs on that date was what constituted the basis for the determination of seniority and not the rule which was revived by the Central Board of Revenue on July 3, 1957.
" Direction was accordingly issued that Ganapathi Kini 's seniority should be determined on on basis of the formula contained in the Office Memorandum dated June 22, 1949 and the revised seniority list be rectified accordingly.
In the petition filed Ravi Varma the High Court made a short order when, after 'referring the decision in the case of Ganapathi Kini, the learned judges granted similar relief to Ravi Varma.
Suresh Kumar, respondent No. 1 and Tara Chand Jain, res pondent No ' 2 in civil appeal No. 50 of 1969 were appointed as Lower Division Clerks in the Medical Stores Depot, Karnal under the Directorate General of High Services on October 9, 1950 and November 26 1951 respectively.
Both of them were con firmed on March 31, 1960.
In the Seniority list which was Prepared in accordance with Office Memorandum dated June 22, 1949 Suresh Kumar and Tara Chand Jain, respondents, were shown at serial Nos. 32 and 34 in accordance with their length of Service.
Subsequently Memorandum dated June 19, 1963 Was received from the Directorate General of Health Services in which there was a reference to the Ministry of Home Affairs office Memorandum date December 22, 1959.
It was stated in the Memorandum from the Directorate General of Health Services that scheduled castes ' and scheduled tribes candidates who were confirmed in reserved vacancies would rank senior to temporary, including quasi permanent persons irrespective of their position in the seniority list.
A revised seniority list was thereafter prepared and a number of scheduled castes candidates who had been recruited later but had been confirmed earlier than Suresh Kumar and Tara Chand Jain were shown senior.
Suresh Kumar and 999 Tara Chand Jain were thus shown at serial Nos. 40 and 42 in the revised seniority list Suresh Kumar and Tara Chand Jain thereafter filed petition tinder article 226 and 227 of the Constitution of India for quashing the instructions contained in the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services is well its the revised seniority list and other consequential reliefs.
Impleaded is respondents in the petition were the Union or India, the Director General of Health Services, the Deputy Assistant Director General Medical Stores, as well astoother schedule castes employees of the Medical Stores Depot Karnal who had been shown senior to the petitioners in the revised seniority list.
The above petitions were resisted by the appellants and were dismissed by the learned single judge.
On Letters Patent appeal the judgment of the single judge was reversed and it was held thatSuresh Kumar and Tara Chand Jain having been appointed prior to December 22, 1959 were Governed by the rule of seniority contained in the Office Memorandum dated June 22, 1949 issued by the Ministry of Home Affairs.
This position, in the opinionof the learned judges, was not affected by the subsequent OfficeMemorandum issued by the Ministry of Home Affairs.
So far asthe Memorandum dated June 19, 1963 issued by the Directorate General of Health Services was concerned, it was found to be not in consonance with the Office Memoranda issued by the Ministry of Home Affairs on June 22, 1949 and December 22, 1959.
Assuch the Memorandum issued by the Directorate General of Health Services, according to the learned judges, could not affect the seniority of Suresh Kumar and Tara Chalid Jain.
In the result the revised seniority list was held to be invalid and theUnion of India and two other appellants were directed to prepare a revised seniority list in accordance with the original seniority of Suresh Kumar and Tara Chand Jain.
The learned Solicitor General on behalf of the appellants has at the outset referred to Memoranda dated June 22, 1949 and December 22, 1959 issued by the Ministry of Home Affairs and has argued that after the issue of the latter Memorandum the seniority of all Central Government employees should be determined by the date of their confirmation and not oil the basis of the length of service.
let this connection, we find, that the of a large number of Government employees After the partition of the country from areas now forming part of Pakisthan resulted in a situation wherein the Government had to review the Jules relating to seniority, As most of those displaced Government servants had been employed on temporary, basis and as it was felt that they should be given some weigh@age in the matter of seniority on compassionate grounds, the rule was evolved that the seniority 1000 should be determined on the basis of the length of service in equivalent grades.
The seniority of persons appointed on permanent basis or quasi permanent basis before January 1, 1944 was, however, left undisturbed.
Further, as it was not possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appointed to Central services.
Office Memorandum dated June 22, 1949 was consequently issued.
The above principles were also extended to other category of Government employees, including those with war service.
The matter was reviewed thereafter in 1959.
The Government then found that displaced Government servants had by and large been absorbed in the various Central services and their seniority had been fixed with reference to the previous service rendered by them.
Same was found to be the position of other Government servants who had been given the benefit of the principles contained in Memorandum dated June 22,.1949.
As the objects underlying the instructions of June 22, 1949 had been achieved and it was no longer considered necessary to apply those instructions in preference to the normal principle for determination of seniority, it was decided that the seniority of Central Government employees would henceforth be determined in accordance with the general principles contained in Annexure to the Office Memorandum issued by the Ministry of Home Affairs on December 22, 1959.
One ,of those principles was that permanent officiating of each grade would I ranked senior to persons who were, officiating in that grade.
The effect of that, as submitted by the learned Solicitor General, was that the seniority was to be determined by the date of confirmation and not on the basis of length of service as was the rule contained in the Office Memorandum dated June 22, 1949.
The Office Memorandum dated December 22, 1959, however, expressly made it clear that the general principles embodied in the Annexure thereto were not to have retrospective, effect.
In ,order to put the matter beyond any Pale of controversy, it was mentioned that 'hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accor dance with the General principles annexed hereto '.
It is, therefore, manifest that except in certain cases with which we are not concerned, the Office Memorandum dated December 22, 1959 and the provisions laid down in the Annexure thereto could not apply to persons appointed to the various Central services before the date of that Memorandum.
It may also be mentioned that while dealing with the above Memorandum, this Court in the case of Mervyn Coutindo & Ors.
1001 vs Collector of Customs, Bombay & Ors.
(1) observed that these principles were not to apply retrospectively but were given effect to form the date of their issue, subject to certain reservations with which we are not concerned.
It has next been argued by the learned Solicitor General that whatever might be the positioned in respect of the employees in other Central services, so far as the clerks, supervisors and inspectors under the Central Board of Revenue were concerned, a decision was taken that for purposes of promotion, the permanent employees should have precedence before nonpermanent employees.
Our attention in this connection has been invited to letter dated March 15, 1958 sent by the Central Board of Revenue to all Collectors of Central Excise.
In this letter there was a reference to an earlier letter dated July 3, 1957 from the Board and it was mentioned that the instructions contained in the earlier letter that for purposes of promotion from ministerial grade to inspectors grade, permanent clerks would first be considered before considering persons who were non permanent, should be followed in respect of promotions to other grades also.
The Solicitor General accordingly contends that the direction contained in the Memorandum dated December 22, 1959 that it could not apply to employees appointed before that date would not hold good in the case of clerks, supervisors and inspectors functioning under the Central Board of Revenue.
It is, in our opinion, not necessary to go into this aspect of the matter because we find that the Central Board of Revenue as per letter dated August 27, 1971 addressed to all Collectors of Central Excise, gave fresh instructions regarding the principles of seniority.
In this letter there was a reference to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and it was stated : "In supersession of all previous orders on the subject, it has now been decided that in so far as the nongazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate offices are conceded, the seniority of persons appointed to various posts and services after receipt of these orders should be regulated in accordance with the Ministry of Home Affairs O.Ms.
referred to above.
" It would follow from the above that so far as the non gazetted staff 1 in the Central Excise, Customs and Narcotics Departments and other subordinate offices of the Central Board of Revenue are (1) [1966]3 S.C.R. 600.
1002 concerned, the question of seniority would have to be decided in accordance with the Office Memorandum dated 19 10 1959.
As the said Office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the conclusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of service in accordance with Office Memorandum dated Julie 22, 1949 and not on the basis of the date of their confirmation.
In civil appeal No. 50 of 1969 the learned Solicitor General has referred to Office Memoranda dated January 28, 1952, April 20, 1961 and March 27, 1963 issued by the Ministry of Home Affairs to show a departure from the rule of seniority for the benefit of members of scheduled castes and scheduled tribes.
Office Memorandum dated January 28, 1952 makes provision for communal representation in services for candidates to scheduled castes and scheduled tribes as also the Anglo Indian community.
The Memorandum gives a model roster which should be applied in filling the vacancies.
Perusal of the Memorandum shows that it relates only to recruitment and has nothing to do with the rule of seniority.
Office Memorandum dated April 20, 1961 deals with the ques tion of seniority of direct recruits who were confirmed in an order different from the original order of merit.
According to the Memorandum, it often happens that a scheduled caste or scheduled tribe candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are not appointed at that time.
If such candidates are appointed in the following year, they are note entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list.
It is plain that the above Office Memorandum did not deal with the question of seniority on the basis of length of service as contained in Office Memorandum dated June 22, 1949 but with the question a, to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate though occupying a lower position in the merit list, is confirmed earlier in a reserved vacancy.
We are in the present case not concerned with any merit list nor with any question of seniority based on such a list.
As such, Office Memorandum dated April 20, 1961 is also of not any material help to the appellants.
It may be stated that the counsel for the appellants in the High Court conceded that the above Memorandum had no direct relevance in the present controversy.
1003 The third Office Memorandum dated March 27, 1963 referred to by the learned solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribes ' in Central Government services.
This Memorandum has a bearing only on the question of recruitment and provides no guidelines for determining seniority.
We, thus, find that none of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants.
We may now advert to the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services.
As? mentioned earlier, it was after the receipt of this Memorandum that the seniority list of class III employees of the Government Medical Stores Depot, Karnal was revised and the seniority was determined on the basis of the date of confirmation and not on the basis of length of service.
The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and seeks implementation of that.
It is no doubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, including quasi permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority contained in the, Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before that date.
As mentioned earlier Office Memorandum dated December 22, 1959 did not disturb the, seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which we are not concerned.
It is not disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority in Central services like the one with Which we are concerned, have to be dealt with by the Ministry of Home Affiars.
As Suresh Kumar and Tara Chand Jain, respondents, were appointed prior to December 22, 1959 their seniority was governed by the rule of length of service as contained in Office Memorandum 1004 dated June 22, 1949 and not by the rule based upon date of confirmation as contained in the Annexure to the Memorandum dated December 22, 1959.
Reference was made by the learned Solicitor General to the case of Roshan Lal Tandon vs Union of India(1) wherein it has been laid down that the service rules may be framed and altered unilaterly by the Government.
No occasion for invoking the above dictum arises in this case because the learned counsel for the contesting respondents have not questioned the right of the Government to frame and alter unilaterly the service rules.
In the result, all the three appeals fail, and are dismissed with costs.
One hearing fee.
G.C. Appeals dismissed.
[/INST]The accused was charged with murder by stabbing, and the evidence against him was circumstantial.
It consisted of : (a) evidence of ill will against the deceased furnishing a motive (b) evidence that he was last seen in the company of the deceased, (c) evidence furnished by finger prints, that he was present in the room of the deceased at or about the time of the murder, (d) evidence that he was subsequently found in Possession of articles which had incriminating blood strains, and (e) evidence that he had bidden a dagger with bloodstains thereon, and certain other articles.
which were discovered on information furnished by him.
The trial court convicted him but the High Court set aside the conviction on the ground that the witnesses were not independent or impartial.
Allowing the appeal to this Court, HELD : (1) In an appeal against acquittal by special leave under article 136, this Court has power to interfere with the findings of fact, no distinction being made between judgments of acquittal and conviction though in the case of acquittals, it will not ordinarily interfere with the appreciation of evidence or findings of fact unless the High Court acted perversely or otherwise improperly.
[772 B D] State of Madras vs Vaidyanatha Iyer, ; , 587, referred to.
(2) In the case of circumstantial evidence if the links in the chain are complete leading to the undoubted conclusion that the accused alone could have committed the offence then it can be accepted.
In appreciating such evidence the prime duty of a court is to ensure that the evidence is legally admissible, that the witnesses are credible and that they have no interest or motive in implicating the accused, Since it is difficult to expect a scientific or mathematical exactitude while dealing with such evidence corroboration is sought wherever possible.
If there is any reasonable doubt the accused is given the benefit of such doubt.
The doubt should be reasonable and not a remote possibility in favour of the accused.
That is, the greatest possible care should be taken by the court in convicting an accused,, who is presumed to be innocent till the contrary is clearly established, and the burden of so establishing is always on the prosecution.
[772 C E, G; 773 E H; 774 C] (3)(a) While considering the evidence relating to the recovery under section 27 of the Evidence Act the court will have to exercise that caution and care which is necessary to lend assurance that the information furnished by the accused lead in to the discovery of a fact is credible.
[776 D] 766 In the present case, the various panchnamas of seizure prepared by the Investigating Officer could not be assailed on the ground that the witnesses who witnessed the recoveries were connected with the deceased or with his business, and that therefore, they were not independent or impartial witnesses.
[775 H; 776 G] (b) The evidence relating to recoveries is not similar to that contemplated under section 103, Cr.
It cannot be laid down as a matter of law or practice that where recoveries had to be effected from different places on the information furnished by an accused different sets of persons should be called to witness them.
[777 B C] On the contrary, in the present case, the witnesses who worked with the deceased were proper persons to witness the recoveries as they could identify the things which were missing.
[777 C D] (4) The report of the Director of the Finger Print Bureau regarding the finger prints can be used as evidence under section 510 Cr.
P.C., without examining the person making the report, because identification of finger prints has developed into an exact science.
As long as the report shows that the opinion was based on relevant observations that opinion can be accepted.
[783 A E] In the present case, the report set out many points of similarity between the finger prints found in the room of the deceased and those of the accused.
[783 H] (5) The information given by the accused that he purchased a dagger from one of the prosecution witnesses followed his leading the police to that witness and pointing him out is inadmissible under section 27 of the Evidence Act.
The concealment of a fact which is not known to the police is what is discovered by the information given by an accused and lends assurance that the information was true.
What makes the information leading to the discovery of a witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until information was furnished by the accused.
But a witness cannot be said to have been discovered if nothing was found with or recovered from him.
as a consequence of the information furnished by the accused.
[778 F 779 H; 780 A C] Emperor vs Ramanuya Ayangar, A.I.R. 1935 Mad. 528, over ruled.
Pulukiuri Kotayya & Ors.
vs King Emperor, 74 I.A. 65, Ramkrishan Mithaplal Sharma vs State of Bombay, [1955] I S.C.R. 9 '03, Sukhan vs Crown, I.L.R. X Lah. 283, Public Protector vs India China Lingiah & Ors., A.I.R. 1954 Mad.
435 and Re : Vellingiri, A.I.R. 1950 Mad.
referred to.
(6) But that the accused had taken some of the prosecution witnesses to the witness from whom he bought the dagger and pointed him out, would be admissible under section 8 of the Evidence Act as conduct of the accused.
[780 C D] (7) Even after excluding some recoveries on the ground that the evidence regarding them was not satisfactory, the evidence against the accused consisted of evidence of motive, recovery of a button in the room of the deceased which matched with the button on the cuff of the coat recovered from the accused, the finger prints in the room, recovery of a blood stained coat and other articles of dress, a blanket, and the dagger, and the 767 fact that the accused and deceased were last seen together.
The evidences cogent and conclusive and should not have been rejected by the High Court.
[781 C E; 786 C D]
</s>
|
<s>[INST] Summarize the judgementiminal Appeal No. 42 of 1955.
On Appeal by Special leave from the Judgment and Order dated the 8th October 1954 of the Bombay High Court in Criminal Appeal No. 315 of 1954 arising out of the Judgment and Order dated the 6th January 1954 of the Court of the 4th Presidency Magistrate, Bombay in Cases Nos.
639 40/P 1955.
H. J. Umrigar, J. B. Dadachanji and Rajinder Narain for the appellant.
Porus A. Mehta and P. G. Gokhale for the respondent.
October 14.
The Judgment of the Court was delivered by BHAGWATI J.
The accused No. 1, the Appellant before us, and accused Nos. 2, 3 and 4 were charged that they, at Bombay, between about June 1950 and November 1950, were parties to a criminal conspiracy by agreeing to do certain illegal acts, to wit: Firstly, 882 that they used as genuine forged bills of entry which included bills of entry Exhibit Z; Secondly, that they ,heated the Deputy Chief Controller of Imports, Bombay, by fraudulently I and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 248189/48 to import cycles from United Kingdom of the value of Rs. 1,98,960; Thirdly, that they cheated the Deputy Chief Controller of Imports, Bombay, by falsely and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 203056/48 to import watches from Switzerland of the value of Rs. 3,45,325; and Fourthly, that they cheated the Deputy Chief Controller of Imports, Bombay, by fraudulently and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 250288/48 to import artificial silk piece goods from Switzerland of the value of Rs. 12,11,829; and the above said illegal acts were done in pursuance of the said agreement and that they thereby committed an offence punishable under section 120 B of the Indian Penal Code.
There were also charges against all the accused under section 471 read with section 465 and section 34 and also under section 420 read with section 34 of the Indian Penal Code in respect of each of the three illegal acts aforesaid.
The learned Presidency Magistrate, 23rd Court, Esplanade, Bombay, tried all the accused for the said offences and acquitted all of them.
The State of Bombay thereupon took an appeal to the High Court of Judicature at Bombay, and the High Court reversed the acquittal of accused No. I and held him guilty of all the offences with which he had been charged including the offence under section 120 B of the Indian Penal Code.
The acquittal of accused 2, 3 and 4 was confirmed.
The High Court, even though it acquitted accused 2) 3 and 4 of the charge under section 120 B of the Indian Penal Code, was of the opinion that the deed of assignment put forward by the accused No. I in his defence was a false and fabricated document and the ,said document along with its accompaniments was 883 forged or was got forged by or with the knowledge or connivance of the accused No. 1 and his co conspirators and it was impossible to believe that this conspiracy carried out with such meticulous care could be the work of only accused No. 1.
There was no evidence on the record to warrant any inference that the accused No. I was acting in the matter in collaboration with any other 'co conspirators and the only evidence was in regard to the various acts alleged to have been done by accused 2, 3 and 4 in the matter of the conspiracy and the furtherance of the objects thereof While considering the question of sentence to be passed on the accused No. 1 who, in spite of the circumstances aforesaid, was convicted of the offence under section 120 B of the Indian Penal Code, the High Court observed that "the conspirators, whoever they were, had shown considerable ingenuity and daring in carrying out the object of the conspiracy and that it felt no hesitation in Coming to the conclusion that it was not straitened circumstances or financial difficulties which were the basis of the conspiracy but it was the greed for money on such a large scale as could never be regarded as an extenuating circumstance".
It, therefore, directed that the accused No. I should undergo rigorous imprisonment for 18 months for the offence under section 120 B of the Indian Penal Code.
The application for leave to appeal to this Court filed by accused No. 1 was rejected by the High Court.
The accused No. 1 thereupon applied for and obtained special leave to appeal against the decision of the High Court.
The special leave was, however, limited to the question of law, whether the conviction under section 120 B is maintainable in view of the fact that the other alleged conspirators had been acquitted.
The charge as framed under section 120 B of the Indian Penal Code was levelled against 4 named individuals, the accused Nos. 1) 2, 3 and 4.
It was not a charge against them and other persons unknown with the result that if accused 2, 3 and 4 were acquitted of that charge, there remained only accused No. 1 and 112 884 the question, therefore, arises for our consideration whether, under the circumstances, the accused No. I could be convicted of the offence under section 120 B of the Indian Penal Code.
Criminal conspiracy has been defined in section 120 A of the Indian Penal Code: "When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is, not illegal by illegal means, such an agreement is designated a criminal conspiracy".
By the terms of the definition itself there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.
If, therefore, 4 named individuals were charged with having committed the offence under section 120 B of the Indian Penal Code, and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No. 1 in the case before us, could never be held guilty of the offence of criminal conspiracy.
If authority for the above proposition were needed, it is to be found in Archbold 's Criminal Pleading, Evidence and Practice, 33rd edition, page 201, paragraph 361: "Where several prisoners are included in the same indictment, the jury may find one guilty and acquit the others, and vice versa.
But if several are indicted for a riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indictment, and proved, that they committed the riot together with some other person not tried upon that indictment.
2 Hawk.
c. 47.
section 8.
And, if upon an indictment for a conspiracy, the jury acquit all the prisoners but one, they must acquit that one also, unless it is charged in the indictment, and proved, that he conspired with some other person not tried upon that indictment.
2 Hawk.
c. 47.
section 8; 3 Chit.
Cr. L., (2nd ed.) 1141; R. vs Thompson, ; R. vs Manning, 12.
Q.B.D. 241; R. vs Plummer The King vs Plummer ([1902] 2 K.B. 339) which is 885 cited in support of this proposition was a case in which, on a trial of indictment charging three persona jointly with conspiring together, one person had pleaded guilty and a judgment passed against him, and the other two were acquitted.
It was held that the judgment passed against one who had pleaded guilty was bad and could not stand.
Lord Justice Wright observed at page 343: "There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted in the conviction of the appellant and the acquittal of the only alleged co conspirators, no judgment could have been passed on the appellant, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement.
between the appellant and the others and none between them and him: see Harrison vs Errington (Popham, 202), where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a "void verdict", and said to be "like to the case in 11 Hen.
4, c. 2, conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire".
" Lord Justice Bruce at page 347 quoted with approval the statement in the Chitty 's Criminal Law, 2nd ed., Vol.
III, page 1141: "And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him".
The following observations made by Lord Justice Bruce are apposite in the context before us: "The point of the passage turns upon the circumstance that the defendants are included in the same indictment, and I think it logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with conspiracy with another, and the indictment 886 contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face.
The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy".
This position has also been accepted in India.
In Gulab Singh vs The Emperor (A.I.R. 1916 All. 141) Justice Knox followed the case of The King vs Plummer, supra, and held that "it is necessary in a prosecution for conspiracy to prove that there were two or more persons agreeing for the purpose of conspiracy" and that "there could not be a conspiracy of one".
To similar effect was the judgment in King Emperor vs Osman Sardar (A.I.R. where Chief Justice Sanderson observed that "the gist of an offence under section 120 B was an alleged agreement between the two accused and when the jury found that one of them was not a party to the agreement and acquitted him of that charge, it followed as a matter of course that the other accused could not be convicted of that charge.
The assent of both of them was necessary to constitute the agreement which was the basis of the charge".
Ratanlal in his Law of Crimes, 18th ed., page 270, has summarised the position as it emerges from the above two cases in the manner following: "Where, therefore, three persons were charged with having entered into a conspiracy, and two of them were acquitted, the third person could not be convicted of conspiracy whether the conviction be upon the verdict of a jury or upon his own confession".
The position in law is, therefore, clear that on the charge as it was framed against the accused Nos. 1, 2 3 and 4 in this case, the accused No. I could not 887 be convicted of the offence under section 120 B of the Indian Penal Code when his alleged co conspirators accused 2, 3 and 4 were acquitted of that offence.
In our opinion, therefore, the conviction of the accused No. I of the charge under section 120 B of the Indian Penal Code was clearly illegal.
The appeal of the accused No. 1 will, therefore, be allowed to the extent that his conviction under section 120 B of the Indian Penal Code and the sentence of rigorous imprisonment of 18 months awarded to him as the result thereof would be quashed.
We are not concerned here with the conviction of the accused No I of the offences under section 471 read with section 465 and also his conviction for each of the three offences under section 420 of the Indian Penal Code and the concurrent sentences of rigorous imprisonment for one year in respect of each of them passed by the lower Courts upon him in regard to the same.
These convictions and sentences will of course stand.
[/INST]The Government of India, in 1950, framed a rule for promotion of an Income Tax Officer as Assistant Commis sioner and it was published as rule 18 in Vol.
I1 of the Office Manual published in 1955.
The rule provided that promotion shall be strictly on merit and that no one should ordinarily be considered for promotion unless he has com pleted at least ten years service as Income Tax Officer.
In 1957, a memorandum was issued by the Central Board of Reve nue containing the following principles for proration of Income Tax Officers Class I as Assistant Commissioners.
Greater emphasis should be laid on merit as a criterion.
The Departmental Promotion Committee should first decide the field of choice, namely, the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list.
An officer of outstanding merit may be included in the list even if he is outside the normal field of choice.
The field of choice wherever possible should extend to 5 to 6 times the number of vacancies expected.
From among such officers those who are considered unfit for promotion should be excluded and the remaining should be classified as 'outstanding ' very good ' and 'good ' on the basis of merit as determined by their respective records" of service.
The selection list should then be prepared by placing the games in the order of these three categories without disturbing the seniority inter se within each category.
Promotions should strictly be made from such selection list in the order in which the names are finally arranged.
The selection list should be periodically reviewed removing from the list names of persons who have been promoted and including fresh names.
On 16th August 1972 this Court set aside the seniority list in the first Bishan Sarup Gupta case [1975] Supp.
SCR 491 and gave directions for preparing a fresh list.
On 21 December 1972, the Government applied to this Court for making ad hoc promotions and the court permitted them to do so.
Accordingly, in March 1973 and November 1973 the Board promoted 59 and 48 Income Tax Officers respectively as Assistant Commissioners.
It was distinctly stated in those two orders that the ad hoc appointments made against those posts were provisional and that the appointments eventually be made on the basis of the revised seniority list of Income Tax Officers Class I as finally approved by this Court, and on selection by a duly constituted Depart mental Promotion Committee in accordance with the prescribed procedure.
In February 1973, the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973, were made and a revised seniority list of Income Tax Officers Class I was made on the basis of those rules.
The list as well as the Rules were approved in the second Bishan Sarup Gupta Case ; From such seniority list the Depart mental Promotion Committee made a selection list in July 1974, for proration of Income .Tax
Officers, Class I, as Assistant Commissioners.
There were 112 vacancies and the Government sent 336 names in the running order of seniority for consideration of the field of 29 choice.
The Committee followed the instructions in the 1957 Memorandum an.d found 276 to be fit for the field of choice, assessed the merits of 145 persons in order of seniority, found one officer outstanding, 114 very good, and 7 Sched uled Castes/Tribes officers good, according to the instruc tions.
The Selection list was challenged in various High Courts.
Two of the High Courts held in favour of the peti tioners and the other High Courts gave interim orders stay ing the operation of the Selection List.
In appeals by the Union of India to this Court, the respondents sought to support the judgments in their favour on the following contentions : (1) The requirement in the rule regarding 10 years experience was not abrogated as contended by the Government and the affidavits field in the various proceedings on behalf of the Union as well as the petitioners show that the 10 year rule was in force and was followed (2) Rule 18 has the force of law under the Government of India Act, 1935, and hence is existing law within the mean ing of article 366(10) of the Constitution and also because it was incorporated in the Office Manual issued by the Govern ment of India in exercise of its executive power under article 53.
(3) The rule constitutes one of the conditions of serv ice and, therefore, should be followed.
(4) The rule imposes an obligation on the Union Govern ment to Consider 'ordinarily ' only Officers of ten years service, but the selection list was prepared in violation of the rule in that officers of 8 years experience were considered.
(5) The selection has been made in complete violation of the principles set out in the 1957 memorandum and was entirely arbitrary.
(6) The promotion should be considered as on 21 December 1972 when the Government applied to this Court for permis sion to make ad hoc appointments, and on the two dates when the Government actually made 107 (59 1 48) ad hoc promotions and it Was the duty of the Committee to regularise the 107 promotions as from the dates of the original promotion and to consider the eligibility of an officer for promotion as on those dates, and this not having been done.
the selection list was illegal being contrary to the observations in the first Bishan Sarup Gupta 's case.
Rejecting these contentions of the respondents, allowing the appeals, and upholding the Selection List, HELD: (1)(a) The requirement Of 10 years experience in r. 18 was modified to 8 years experience.
The correspond ence between the Finance Ministry and Home Ministry and the U.P.S.C. shows that there was concurrence with the change.
The High Court was in err, or when it said that the require ment of 8 years experience must first be included in the appropriate recruitment rules and that until that was done 10 years experience held the field.
8 years experience as a working rule for promotion was publicly announced by the Minister in Parliament.
Administrative instructions are followed as a guide line on the basis of executive policy.
The requirement of 8 years was followed as a guide line in practice in 1968, 1970 and 1972.
The requirement was thus not only modified but was given effect to.
[39F] (b) The High Court was in error in treating the affida vit evidence of an officer of the Government, in other proceedings, as a statement of fact that the 8 years rule had not been introduced.
This affidavit evidence is torn out of context and is misread by the High Court without going into the question as to whether such evidence is admissible.
The entire affidavit evidence as well as the submissions made on behalf of the 'Union Government is that the requirement of 10 years experience is replaced by one of 8 years.
It is a question of construction of.
the correspondence as to whether the 10 years rule was replaced by 8 years rule.
The fact that no rules under article 309 were 30 framed does not detract from the position that previous administrative instruction of 10 years experience was modi fied to 8 years experience.
The various affidavits and documents show that the consistent position on behalf of the Union has always been that the requirement of 10 years experience was modified to one of 8 years.
[41H; 42A B] (2) The rule is not a statutory rule.
[42D] (a) The contention that because Government of India has authority to frame rules the letter of 16th January 1950 in which the rule was framed should, therefore, be treated as a formal ' rule is erroneous since there is a distinction between statutory orders and administrative instructions of the Government.
The change was recorded by means of correspondence as an administrative instruction. 'In the absence of statutory rules, executive orders or administra tive instruction may be made.
[42E F] Commissioner of Income Tax Gujarat vs A. Raman & Compa ny. , referred to.
(b) The letter of 16th January 1950 written by an Under Secretary in the Ministry of Finance does not prove that it is a rule made by the Governor General or any person autho rised by him under section 241(2), Government of India Act, 1935.
Furthermore, there is no basis for any authentication under section 17 of the 1935 Act in the letter.
[42G] (c) In the preface to the Office Manual published in 1955 it is specifically stated that Vol.
I contains statuto ry rules and Vol.
II, in which r. 18 occurs, contains only administrative instructions.
[42G] S.C. Jaisinghani vs Union of India & ors.
[1967] 2 S.C.R. 70, referred to.
(d) Article 313 refers to laws in force which mean statutory laws.
An administrative instruction or order is not a statutory rule or law.
The administrative instruc tions can be changed by the Government by reason of article 63(1).
Article 313 does not change the legal character of a document.
[43B] (3) The High Court erred in holding that the 10 year rule is a condition of service.
The word "ordinarily" in the rule does not impose an obligation on the Government not to consider any Income Tax Officer with less than 10 years experience, for promotion.
The rule on the face of it, confers a discretion on the authorities to consider Income Tax Officers of lesser years experience if the circumstances so require, and whether such circumstances exist should be left to the decision of the authorities.
Even the Central Board of Revenue, in a letter written a few months after the rule was framed, stated that the insistence of a minimum period of experience cannot be regarded as affecting the conditions of service.
In that letter.
it was stated that the requirement of 10 years experience is sufficiently elastic and all Income Tax Officers with more than 9 years experience could also be considered for promotion.
This letter was referred to by this Court in Union of India vs Vasant Jayarama Karnik [43C F] (4) It cannot be said that there is a deviation from the requirement of 10 years experience in preparing the Selec tion list.
That requirement was modified to one of 8 years experience.
The expression 'ordinarily ' in the rule shows that there can be deviation and such deviation can be justi fied by reasons.
Administrative instructions if not carried into effect for good reasons, cannot confer a right.
[43G] P.C. Sethi & ors.
vs Union of India & Ors.
[1975] 3 S.C.R. 201, referred to.
(5) The facts and circumstances in the present case merited the exercise of discretion which was bona fide exercised by determining the field of choice and from 1963, the field of choice has always been in a running order of seniority.
31 (a) There were, in the present case,112 vacancies and 10 anticipated vacancies and the Departmental Promotion Commit tee was to make a panel of 122 officers.
If the field of choice has to be prepared on the basis of running seniority and if 10 years experience had been adhered to, there would not have been more than 95 officers in the field of choice although the number of vacancies was 122.
This fact alone entitled the authorities to deviate from the rule of 10 years experience.
[44E F] (b) The requirement of 10 years experience could not be given effect to also because in the second Bishan Sarup Gupta case, this Court had directed that the two classes of Income Tax Officers, direct recruits and promotees, should first be fully integrated before determining inter se sen iority.
The expression 'ordinarily ' would hardly apply to such a changed situation without destroying the integration.
If the respondents ' contention that the field of choice shall be restricted to 10 years experience only and the field of choice should have been at least 5 times the number of vacancies the result would have been that out of 560 persons in the field of choice 474 persons would have been promotees and only 86 persons would have been direct recruits and 429 senior officers, who were direct recruits, would have been ignored.
That obviously would be unjust and unfair and also contrary to the decision of this Court in the second Bishan Sarup Gupta 's case.
[47BC] (c) As a result of administrative instructions issued, at least since 1963, for promotion of Income Tax Officers as Assistant Commissioners, the administrative practice is to take the field of choice generally of 3 times the number of vacancies.
The evidence shows that in the circumstances of this case, it was not possible to have 5 or 6 times the number of vacancies in the field of choice.
[46E] (d) The High Court was wrong in holding that in the field of choice, the evaluation o{ merit of persons was not properly done.
The 1957 Memorandum requires that the field of choice is based on running seniority and evaluation of merit does not come into picture for deciding the field of choice.
The question of merit comes in only in the preparation of the selection list.
Seniority is the sole criterion for determining the field of choice and merit is the sole crite rion for putting the officers in the Selection list.
[46G] In present case, the instructions in the 1957 memoran dum were strictly followed.
(e) The 7 Scheduled Caste/Tribes officers were not entitled to a grade higher than the grade assessed by the Committee, because, the Home Ministry instructions, regard ing concessions to Scheduled Castes and Tribes applied in the case of promotions from Class III to Class II and within Class II and from Class II to the lowest rank of Class I, but had no application in respect of promotion within Class I. [47E] (f) After 122 senior officers were assessed and 114 were found to be 'very good ', they could not be supplanted by other who were also 'very good '.
Only 'outstanding ' persons who would be junior to the 122 could surpass them.
There fore, the Committee rightly considered the cases of the officers remaining out of the 276 only to find out whether there was any one 'outstanding" as it would be a fruitless exercise to find out who among them was 'very good '.
[48B] (g) The contention of the respondents that the officers remaining out of the 336 sent up, were not at all considered by the Committee is not also acceptable.
When the Committee found, according to running seniority, that certain persons beyond a certain number could not be in the field of choice, the Committee did not put the names in the field of choice.
The question of the evaluation of their merits did not, therefore, arise.
It is wrong to hold that because the Government sent the names of 336 persons the field of choice consisted of all 336 persons.
The field is to be determined by the Committee and the Committee rightly con sidered 276 names as fit to be included.
[48F] 32 (h) There is no substance in the contention that 4 of the officers had less than 8 years experience, because, they were ex military officers recruited by virtue of a notifi cation of the Ministry of Home Affairs.
[49B C] (i) The contention that after putting the officers in the three categories they should further be evaluated on merit inter se within each category is contrary to the specific provision of the 1957 memorandum, and further, there could not be any further intra specific assessment of those who are already considered to be "very good".
[49D] (6) The date for determining the eligibility of officers has nothing to do with the dates on which ad hoc appoint ments were permitted and ad hoe appointments were, in fact, made.
The observations Of this Court in the first Bishan Sarup Gupta case, are that if as a result of the fresh seniority list, it is found that any officer was eligible for promotion on account of his place in the new seniority list, the Committee might have to consider his case as on the date when he ought to have been considered and his position adjusted in the seniority list of Assistant Commis sioners.
The observations did not mean that although the Committee can meet only after the seniority list is approved by this Court, the selection would be deemed to be made at the time when a vacancy in the post occurred and the eligi bility of officers for seleCtiOn should be determined by such deemed date of selection.
No employee has any right to a vacancy in the higher post as soon as the vacancy occurs.
The Government has a right to keep it unfilled as long as it chooses.
The seniority list which is a basis for the field of choice for promotion was approved by this Court on 16th April 1964 in the second Bishan Sarup Gupta case.
Promo tions to the post of Assistant Commissioners are on the basis of the Selection List prepared by the Committee and are to be made prospectively and not retrospectively.
[51 C D]
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<s>[INST] Summarize the judgementAppeal No. 1496 of 1993.
From the Judgment and Order dated 20.2.1985 of the Orissa High Court in First Appeal No.139 of 1974 Raj Kumar Mehta for the Appellant.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
Heard the counsel for the appellant.
None appears for the respondent though served.
Leave granted.
This appeal by the Orissa State Electricity Board is preferred against the judgment of the Orissa High Court allowing partly an appeal preferred .by the respondent.
The dispute pertains to the liability of the consumer (respondent in this appeal) to pay the minimum charges during the period subsequent to the date of disconnection of supply of energy to him for the non payment of electricity dues.
The respondent is an industry.
It entered into an agreement with the appellant for supply of electricity on March 5, 1965.
The agreement was valid for a period of five years.
He started availing of the energy with effect from July 31, 1965.
The supply of his industry was disconnected on April 30, 1968 for non payment of electricity charges.
Since the consumer also failed to pay the minimum charges for the period subsequent to the date of disconnection, the Board filed a suit for the amount due on account of the electricity consumed between April 1, 1968 and April 30, 1968 and for the minimum charges for the period May 1, 1968 to March 5, 1970.
(It may be remembered that the agreement between parties was valid upto March 5, 1970).
The Trial Court decreed the suit as prayed for along with interest 862 of 6% per annum on the amount decreed from the date of suit till the date of decree and also future interest at the same rate till full satisfaction.
On appeal, the High Court sustained the decree of the Trial Court only for the period upto the date of disconnection (April 30, 1968) but disallowed the claim for the period subsequent to the date of disconnection.
The reasoning of the High Court is that inasmuch as the supply was disconnected and the respondent consumer did not avail of any energy whatsoever during the period subsequent to the disconnection, it is not liable to pay the minimum charges.
In this appeal, it is contended by the learned counsel for the appellant that the question arising herein is concluded in favour of the Board by the decision of this Court in Bihar State Electricity Board, Patna and Ors.
vs M/s Green Rubber Industries and Ors., [1990] 1 S.C.C. 731.
On a perusal of the judgment, we find that was also a case where the claim inter alia pertained to the period subsequent to the date of disconnection till the expiry of the agreement.
In that case too, minimum charges were claimed by the Board even for the period during which the supply remained disconnected and no energy whatsoever was availed of by the consumer.
We also find that clause (4) of the agreement considered ' in the said decision and clauses (6) and (13) of the agreement concerned herein are substantially same.
Clause (13) of the agreement between the parties hereto does oblige the consumer to pay a certain minimum charges in any event.
The clause reads as follows: "Clause 13.
The consumer shall (subject to the provisions hereinafter contained) pay to the Engineer for the power demand and electrical energy supplied under this Agreement, the charges to be ascertained as mentioned below viz. (Government resolution on tariff to be inserted here) LARGE INDUSTRIES: For demand of 125 K.V.A. and above for supply at 11 K.V. at (i) Rs.5.50 paise per K.V.A. per month plus (ii) Rs.0.08 paise per K.W.H. per month subject to an overall maximum rate of Rs.0.09 paise per K.W.H. and 863 without prejudice to payment of minimum charge of 75 per cent of the contract demand at the above rate of Rs.5.50 paise per K.V.A. per month and subject further to absolute minimum payment on 125 K.V.A. in the first part of the tariff.
For less than 250 K.V.A the demand may be metered in K.W. and charged for at Rs.6.00 per K.W. per month.
Besides the charges for K.W.H. consumed at the rate specified above.
For supply at M.T. less than 11 K.V.A and M.T. less that 11 K.V.A. and M.T. the above rate will be increased by 10%.
" The reasons for such a stipulation and its justifiability are duly and fully explained by this Court in the aforesaid decision.
It is not necessary for us to reiterate the same.
The appeal is accordingly allowed.
The Judgment of the High Court is set aside.
The judgment and decree of the Trial Court is restored.
No costs.
T.N.A. Appeal allowed.
[/INST]During the accounting order relevant to assessment year 1965 66, the Respondent assessee paid to its foreign technical director a total remuneration of Rs. 66,000 including a sum of Rs. 28,576 paid by way of perquisites.
The Income tax Officer allowed only a sum of Rs. 13,200 by way of perquisites and disallowed the balance of Rs. 15,376 in view of Section 40(c)(iii) of the Income tax Act, 1961.
On an appeal by the assessee, the Appellate Assistant Commissioner held that since the salary of the foreign technical director was exempt under S.10(6)(vii), the provision contained in Sec.40(c)(iii) was not applicable.
Revenue preferred an appeal and the Tribunal held that S.40(c)(iii) was applicable.
At the instance of the Assessee, Tribunal referred the question to the High Court.
Since the High Court answered the question in favour of the assessee, Revenue preferred the present appeal.
Dismissing the appeal, this Court, HELD: Under section 10(6)(vii) of the Income tax Act, 1961 the remuneration due to any technician, who was not a resident in any of the four financial years immediately preceding the financial year in which he arrived in India, chargeable under the head 'salaries ', for services rendered as a technician, was exempt.
Thus in the instant case, the salary paid to the foreign technical director was admittedly exempt under Section 10(6)(vii) of the Income tax Act, 1961.
In other words, it was nil for the purposes of the Act.
If so, the second proviso to sub clause (iii) of S.40(c) 994 is attracted, inasmuch as 'nil ' income, under the head 'salaries" is less than Rupees seven thousand five hundred.
By virtue of the said proviso, the main provision in sub clause (iii) goes out of picture.
The High Court reasoned that if income of one rupee is less than Rs. 7,500, there is no reason for saying that 'nil ' income is not an income less than Rs. 7,500.
The High Court was right in taking the view that since the income exempted under Section 10 is not liable to be included in the total income, such exempted salary income should be treated as 'nil ' income for the purposes of Section 40(c)(iii) of the Act.
[996 B E]
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<s>[INST] Summarize the judgementition No. 8353 of 1981.
Under Article 32 of the Constitution of India P.P. Rao and Parijat Sinha for the Petitioners.
M.M. Abdul Khader, Girish Chandra and Miss A. Subhashini for the Respondents.
Medical Service in the Indian Railways is structured in ascending levels.
At the base, for the purpose of this case, is the cadre of Assistant Divisional Medical Officers Class I (who before January 1, 1973 were described as Assistant Medical Officers Class II).
Above them is the cadre of Divisional Medical Officers.
The next above is the cadre of Medical Superintendents.
Still higher rank Chief Medical Officers, and the apex of the hierarchy is held by the Director General of Medical Services.
There are eight petitioners.
They were Assistant Medical Officers Class II and had been confirmed in that grade, one petitioner in 19 62 and the others in 1963.
During the years 1970 to 1972, the petitioners were selected by Departmental Promotion Committees for officiating appointments to the Class I posts of Divisional Medical Officers, when the Indian Railway Medical Service (District Medical Officers) Recruitment Rules, 1965 were in force.
Those rules were repealed and replaced by the Indian Railways Medical Service (District Medical Officers) Recruitment Rules, 1973.
Under the Rules of 1965 and the Rules of 1973, the posts of District Medical Officers were treated as selection posts.
To give effect to the recommendations of the Third Pay Commission, the scales of pay of existing categories of officers were revised.
The existing pay scale of Rs. 350 900 attached to the posts of Assistant Medical Officer was revised and split into two pay scales, a higher Class I scale of Rs. 700 1600 and a lower Class II scale of Rs. 650 1200.
The posts of Assistant Medical Officers were divided into those carrying the higher pay scale and those carrying the higher pay scale.
A very large number of posts of Assistant Medical Officer were upgraded to the higher pay scale of Rs. 700 1600, and were designated as "Assistant Divisional Medical Officer".
The petitioners were placed in the higher pay scale of Rs. 700 1600 and were designated as Assistant Divisional Medical Officers with effect from 827 January 1. 1973.
The screening of over 2000 Assistant Medical Officers for the purpose of upgrading them to the higher scale kept the Screening Committee busy from 1974 to 1976 or so, and practically no recruitment was made during those year either by permanent promotion or direct recruitment to the posts of Divisional Medical Officer.
The rules of 1973 were replaced by the Indian Railway Medical Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules, 1975.
These, in their turn, yielded place to the Indian Railway Medical Service (Chief Medical Officers, Additional Chief Medical Officers, Medical Superintendents and Divisional Senior Medical Officers Recruitment Rules, 1978.
Under the Rules of 1978, promotion is effected on the principle of "non selection", an expression in the Rules which is construed by the Railway administration as "seniority cum suitability".
By a letter No. E (O) 1 78/SR 6/14 dated October 30, 1979 the Railway Board published a combined seniority list of Divisional Medical Officers recruited directly or by promotion.
The respondents Nos. 4 to 64 were shown in that list.
They include promotees as well as direct recruits.
The petitioners did not find place in the seniority list.
Subsequently, on the basis of their position in that seniority list, some of the respondent Divisional Medical Officers were appointed to officiate as Medical Superintendents by a Railway Board letter No. E(O)III 81 PN 6/199 dated August 31, 1981.
The petitioners challenge the combined seniority list of Divisional Medical Officers and the officiating promotions to the posts of Medical Superintendents.
The petitioners contend that the seniority assigned to the respondents Nos. 4 to 64 and the consequent promotions made thereafter violate Articles 14 and 16(1) of the Constitution.
The grievance operates in two dimensions, against the promotee respondents and against the direct recruit respondents.
We propose to consider first the grievance of the petitioners in respect of the seniority accorded to the promotee respondents as Divisional Medical Officers and their promotion to officiate as Medical Superintendents.
The case of the petitioners is that the petitioners were promoted as Divisional Medical Officers much before the promotee respondents, that their promotion was made 828 by selection on the basis of merit adjudged by Departmental Promotion Committees under the Rules of 1965, that they had continued in service as Divisional Medical Officers against vacancies in permanent posts without interruption for periods ranging respectively between 8 years to 12 years, and yet the promotee respondents, who had held such posts for shorter periods, had been confirmed before the petitioners and shown senior in the seniority list and preferred for promotion as Medical Superintendents.
It is contended that the petitioners should have been confirmed in the normal course, the order of their promotion against permanent vacancies.
The petitioners submit that the promotee respondents have been confirmed zone wise, and such confirmation cannot serve as a proper reference for determining seniority, because when confirmation is granted zone wise, it depends on the fortuitous accrual of vacancies arise arbitrarily at different times and in different numbers in different individual zone.
The petitioners contend that if the date of confirmation is adopted as the criterion, confirmation should not be reckoned on a zonal basis, but as if the vacancies arose in a single all India structure for, the petitioners say, a seniority list prepared for the purpose of Promotion to the post of Medical Superintendents, which is an all India cadre, should properly be drawn on an all India basis.
The petitioners urge that if confirmation has to be considered zone wise, then for the purpose of promotion to the all India cadre of Medical Superintendents the only logical and uniform criterion should be the total length of continuous service as Divisional Medical Officers reckoned from the date of promotion.
It is a criterion which makes the arbitrary chance of confirmation against fortuitous vacancies in individual zones irrelevant.
Finally, the petitioners urge that for the purpose of fixing seniority in the grade of Divisional Medical Officers the seniority ruling in the grade of Assistant Medical Officers or Assistant Divisional Medical Officers is of no material significance because under the Rules in force when the Promotions in instant case were made promotions were governed by the principle of selection on the basis of merit.
The respondents, on the other hand, maintain that the seniority list has been correctly prepared, that it contains the names of only those officers who were either directly recruited as Divisional Medical Officers or had been approved for permanent promotion against the quota of posts reserved for them in vacancies allotted among the individual Railways on the basis of the cadre position of each Rail 829 way, and that none of the petitioners qualified for inclusion in the seniority list as they had been promoted in an officiating capacity to temporary vacancies in the posts of Divisional Medical Officers.
The respondents contend that the petitioners have no right to be treated at par with those officers who were holding permanent posts on a confirmed basis, as confirmation was made on the basis of their selection for permanent promotion as Divisional Medical Officers.
It is stated that seniority was also fixed on that basis.
The respondents rely on a practice, followed by the Railway Administration for several years, under which three Select Lists were prepared.
List A set out the names of officers selected for substantive promotion against permanent vacancies.
List B included the names of officers selected for officiating promotion against temporary vacancies.
These officers were also considered subsequently by Departmental Promotion Committees for permanent promotion along with other eligible officers in the field.
The petitioners were placed in list B. The third list C, bore the names of officers included in List by earlier Departmental Promotion Committees but not considered as "suitable yet" for substantive promotion by subsequent Departmental Promotion Committees.
It is stated that in the Railway Administration, Class II officers were considered for substantive appointment to permanent vacancies in Class I posts for officiating appointment against temporary vacancies in Class I posts.
In each case, there was a separate selection by a Departmental Promotion Committee, and the selection was made zone wise.
The Departmental Promotion Committees, after considering the officers at five to six times the number of vacancies, made a selection on an assessment of their Confidential Records.
It is stated that officers selected for officiating appointment, and subsequently coming within the field of consideration for permanent appointment against permanent vacancies, were also considered for selection by subsequent Departmental Promotion Committees.
In this manner, it is said, all eligible Class II officers were considered for permanent appointment against permanent vacancies, and the most meritorious were selected.
It is pointed out that this practice was terminated in the Medical Department of the Railways after 1972, because with effect from January 1, 1973, the Class II posts of Assistant Medical Officer were upgraded as Class I posts of Assistant Divisional Medical Officers.
According to the respondents, at no time during the period ending with the year 1972, whenever Departmental Promotion Committees met for selecting officers against permanent vacancies 830 did any of the petitioners fall within the field of consideration for permanent appointment in view of their place of seniority in the class II posts.
It is also submitted that the promotion of the petitioners, then Assistant Medical Officers, to the post of Divisional Medical Officers in an officiating capacity against temporary vacancies cannot be traced to the Rules of 1965 or the Rules of 1973 because those rules dealt with promotion to permanent vacancies only.
Nor could the petitioners, when they became Assistant Divisional Medical Officers with effect from January 1, 1973, claim the benefit of the said Rules because those rules provided for selection of class II officers to class I posts.
The respondents urge that the principle which truly governs the petitioners in the matter of promotion from the posts of Assistant Divisional Medical Officers is the principle of seniority cum suitability in the former grade embodied in the Rules of 1978.
It is denied that this construction would amount to giving retrospective operation to the Rules of 1978.
It is explained that when the question of preparing the seniority list arose, the Rules of 1978 were in operation, and they provided for permanent promotion on the basis of seniority cum suitability, and the rule of selection on merit operating under the earlier Rules no longer prevailed, and, in any event, could not apply when an Assistant Divisional Medical Officer, which was a Class I post, was considered for promotion to the Class I post of Divisional Medical Officer Apparently, the promotee respondents were senior to the petitioners as Assistant Medical Officers or Assistant Divisional Medical Officers, and that seniority was made the basis of permanent promotion to the grade of Divisional Medical Officers.
The respondents dispute the proposition that promotion to the grade of Divisional Medical Officers must be made on the basis of the total length of service rendered as Assistant Medical Officers and Assistant Divisional Medical Officers considered on an all India basis as, they assert, promotion to vacancies has to be considered zone wise.
A perusal of the Rules of 1965 shows that there were 101 posts in the grade of Divisional Medical Officers.
The Rules of 1973 mention 109 posts.
The posts are not divided between permanent posts and temporary posts, and we must assume that the Rules refer to permanent posts only.
It appears that proceedings were taken by the Railway Administration from time to time for the promotion of Assistant Medical Officers, to the Class I posts of Divisional Medical Officers.
The Railway Ministry indicated the number of existing vacancies for the purpose of permanent promotion and the number of 831 anticipated vacancies for the purpose of officiating appointment, the number under each category being specified zone wise.
The selection for both categories was made on the basis of merit.
It may be noted that both under the Rules of 1965 and the Rules of 1973, the posts of Divisional Medical Officers were regarded as selection posts.
A Class I Departmental promotion Committee met on February 20, 1970 and considered the case of candidates who had completed five years and above of service as Assistant Medical Officers for such recruitment.
Both for substantive promotion and for officiating promotion the field of choice was extended to six times the number of vacancies.
Another Class I Departmental Promotion Committee met on October 22, 1971 and January 3, 1972.
A third Class I Departmental Promotion Committee held its meetings on September 29 and 30, 1972, and October 3, 1972.
The Minutes of the several meetings indicate that the petitioners Nos. 1 to 8 were selected for officiating a appointments, some of them being classified as "very goods" and others as "goods".
They were accordingly appointed to officiate as Divisional Medical Officers on different dates in 1971 and 1972 and the petitioner No. 7, the last to be promoted, was appointed in 1974.
The record shows that these were all regarded as officiating appointments to vacancies in the Class I posts of Divisional Medical Officers.
There is nothing before us to indicate why the Railway Ministry sought to fill some of the vacancies in the permanent posts on a substantive basis and the others on an officiating basis.
The respondents say that substantive appointments were made to permanent vacancies and officiating appointments were made to temporary vacancies.
We have carefully perused the copies of the official documents placed on the record before us.
They do not speak of temporary vacancies at all.
Nor is there any material suggesting the need for treating some of the vacancies as temporary.
There is nothing to show that the vacancies would have ceased to exist within the foreseeable future or upon the happening of some anticipated contingency.
On the contrary, the petitioners have continued to fill the vacancies for several years.
In the circumstances we are of opinion that the vacancies to which the petitioners were appointed should be regarded as permanents vacancies.
As regards the need for making officiating appointments, it was explained during oral argument that officiating appointments were made when some of the candidates considered for substantive appointment were found to be of inferior calibre for such appointment, and, therefore, some of the vacancies were left to be filled on 832 an officiating basis.
We are not impressed by the submission.
The communication of the Railway Ministry to the Departmental promotion Committee specifying the number and nature of the appointments to be made was issued long before the cases of individual officers were examined for promotion.
It was only after the Departmental Promotion Committee had been informed of the Railway Ministry s requirement that it commenced its task of selecting candidates for substantive appointment and for officiating appointment.
The field of choice for each category, substantive appointment or officiating appointment, was demarcated by the rule that the officers to be considered would be six times the number of vacancies.
According to the material placed before us by the respondents, the petitioners did not at any time fall within the field of choice for making substantive appointments.
That was because their seniority in the grade of Assistant Medical Officers did not at the relevant time bring them within the field of choice for substantive appointment.
They were considered for officiating appointment only, and not for substantive appointment.
It was the mere statistical fact of their seniority as Assistant Medical Officers, and not there merit, that precluded their consideration for substantive appointment as Divisional Medical Officers at the relevant time.
Now the petitioners had been selected for promotion by the same or similar Class I Departmental Promotion Committees as those selecting the substantively appointed Divisional Medical Officers, and in no sense were their functions and responsibilities any different from those of the substantively appointed Divisional Medical Officers.
It seems to us that if from the outset the temporary vacancies had been regarded as permanent vacancies, and substantive appointments had been made instead of officiating appointments, the petitioners would have been appointed substantively to those permanent vacancies.
In the entire field of choice in which they fall, they were found to be the most meritorious.
Ever since their respective appointments in 1971, 1972 and 1974 the petitioners have continued to serve without interruption as Divisional Medical Officers and were doing so when this writ petition was filed in 1981.
They have continued to serve in the posts for a significant number of years, and there is no indication that their appointments will come to an end merely because the vacancies have been described as temporary.
There is no material to show that their confidential Records contained any adverse entries or that otherwise they were not fit on there merit for substantive appointment to permanent vacancies.
Indeed, we are told that the petitioners have now been appointed 833 Divisional Medical Officers on a substantive basis.
It appears that the only reason why they were not originally appointed substantively to permanent vacancies as Divisional Medical Officers is that only a limited number of substantive appointments was desired by the Railway Ministry and the petitioners were not considered for these substantive appointments because they did not fall within the field of choice, having regard to their place of seniority in the lower grade of Assistant Medical Officers.
While there is no doubt that technically.
according to the terms of appointment, the petitioners were appointed on an officiating basis, we are reminded of the observations of this Court in Baleshwar Prasad vs State of U.P "We must emphasis that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointments are functionally identified.
If in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything, unfair of capricious in clothing him with no rights.
Not so, if the post is, for certain depart mental or like purposes, declared temporary, but it is within the ken of both government, and the appointee that the temporary posts are virtually long lived.
It is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post.
We must also express emphatically that the principle which has received the sanction of this Court 's pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis.
" These are apposite observations bearing directly on the point before us.
We may point out that they were found relevant by this Court 834 in deciding O.P. Singla vs Union of India.
To our mind the petitioners are entitled to say that they should be considered at par for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity.
Nothing has been placed before us to indicate why they should not be entitled to the benefits which the substantive holders of permanent posts enjoy.
It seems to us that for the purpose of determining seniority among promotees the t petitioners should be treated as having been appointed to permanent vacancies from the respective date of their original appointment and the entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts.
As regards the practice on which the respondents have relied, of maintaining the three lists A, and that the petitioners were shown in List as being fit only for officiating promotion against a temporary vacancy, it seems to us that the circumstance makes no difference to the view taken by us.
We are of opinion that on the facts of this case, when the petitioners are continuing to hold the posts of Divisional Medical Officers for several years, the continued inclusion of their names in List is wholly meaningless.
If it is true that the length of continuous service reckoned from the date of promotion furnishes the criterion for determining seniority between the petitioners and the substantively appointed Divisional Medical Officers, that principle should apply with equal vigour as between the petitioners and those promotee respondents who also began to serve, like the petitioners, in officiating appointments as Divisional Medical Officers.
There is no reason why such promotee respondents, although appointed subsequently to the petitioners, should be treated as senior to them.
But it is said, the date of confirmation is the material date for determining relative seniority, and the promotee respondents were confirmed before the petitioners.
It appears that the Railway administration in according confirmation has been influenced by two principal factors.
One is that confirmation has been considered on zone wise.
Confirmation has been made as vacancies have arisen within a particular zone.
The vacancies differ from zone to zone.
835 They do not arise equally in different zones, but turn on factors peculiar to each zone, such as the strength of the cadre within the zone, and the differing number of vacancies arising in different zones at different times.
In other words, confirmation based on the placement of an officer within a particular zone must necessarily be determined by factors confined to that zone and unrelated to an all India standard.
It is apparent that confirmations limited by such a local perspective cannot serve as a legitimate base for drawing up a seniority list intended for effecting promotions to the all India cadre of Medical Superintendents.
To adopt the date of confirmation as the governing point in such circumstances is to inject an element of inequality into the very foundation of the promotion process.
I is conceivable that the Railway Administration has adopted the rule of according confirmations zone wise for certain practical considerations and, therefore, we do not propose to adjudicate on the validity of that practice.
But we do lay down that such confirmations cannot legitimately constitute the basic norm for drawing up a seniority list of Divisional Medical Officers for the purpose of promotion to the grade of Medical Superintendents.
In the circumstances, the true principle, in our opinion, must be that seniority should be related to the length of continuous service as Divisional Medical Officers reckoned from the date of promotion to the post.
This is subject of course to the exception that such service should not include any period served in a fortuitous, stop gap or ad hoc appointment.
Having said this, we may advert now to the other factor which appears to have influenced the Railway administration in assigning seniority.
The impugned seniority list was prepared in 1979.
It was drawn up when the Rules of 1978 had come into force.
It was drawn up at a time when the new rule of "non selection" embodied in the Rules of 1978.
Or "seniority cum suitability" as the respondents understand it, had begun to govern promotion to the grade of Divisional Medical Officers.
The Railway administration, following those rules, ignored the fact that the petitioners had been selected on their merit to those posts long before, and had occupied them all the years since.
The consequence of applying the rule of seniority cum suitability in the lower grade was to wipe out all the advantage claimed by the petitioners by virtue of the several years of continuous service, and to give an ascendancy to those Assistant Medical Officers who although promoted subsequently were confirmed earlier only by 836 reason of their seniority in the lower grade.
The question is whether the rule of seniority cum suitability can prevail.
The point would have been capable of easy resolution but for the complexity introduced in implementing the recommendations of the Third Pay Commission.
The Third Pay Commission recommended an upward revision of the scale of pay attached to different grades of posts in the Railways.
In the course of implementing the recommendation in relation to the Medical Department of the Railways, the Railway Ministry issued a letter No. PC III/74/PS 1/2 dated December 31, 1974 publishing a schedule showing the revised scales of pay.
The schedule contained a special provision in regard to the posts of Assistant Medical Officer.
The entry read: Designation Authorised Existing rates Revised Revised rates of post Scale of of non Scale of non Pay Practising of Pay Practising allowance allowance (Rs.) (Rs.) (Rs.) Assistant 350 25 33 1/3% of 700 40 1 5 stages Medical 500 30 pay subject 900 EB Rs. 150/
Officer 590 EB to a minimum 40 1100 6 10 stages: 30 800 of Rs. 150/ 50 1250 Rs. 200/
EB 35 900 per month EB 50 (Class II) 1600 (Class I) 11 15 stages: Rs. 250/
16th stage onwards: Rs. 300/
650 30 1 8 stages: 740 35 Rs. 150/
810 EB 35 880 40 1000 EB 9 13 stages: 40 1200 Rs. 200/
14 16 stages: Rs. 250/p.m.
Remarks: AMOs in the existing Class II scale of Rs. 350 900 will be screened to determine their fitness for the revised Class I scale of Rs. 700 1600 and only those found fit will be entitled to this revised Class I scale.
Those not found fit will be entitled only to revised standard Class II scale of Rs. 650 1200 until they are found fit for Class I by the Screening Committee.
Posts operated in the revised Class 837 I scale will be designated as "Assistant Divl.
Medical Officer".
Separate orders will be issued regarding the number of posts to be placed in each of the two scales from time to time.
It is apparent that the post of Assistant Medical Officer originally carried the Class II scale of Rs. 350 900.
That scale of pay was now substituted by two distinct scales of pay, a higher scale of Rs. 700 1300 (Class I) and a revised lower scale of Rs. 650 1200 (Class II).
Both scales of pay were shown against the posts of Assistant Medical Officer.
The Class I scale of Rs. 700 1600 was intended for Assistant Medical Officer who were found fit by a Screening Committee for that scale, and posts operating in that scale were designated as "Assistant Divisional Medical Officer".
The Assistant Medical Officers not found fit by the Screening Committee were entitled only to the lower Class II scale of Rs. 650 1200 until they were subsequently found fit for the Class I scale by the Screening Committee.
It is clear from the entry in the schedule that both groups of officers, those drawing the Class I higher scale as well as those drawing the Class II lower scale, were included under the single category "Assistant Medical Officer".
All Assistant Medical Officers were screened in order to determine who among them were superior to the others for the purpose of meriting the higher of the two revised scales of pay.
It was merely as a matter of convenience that Assistant Medical Officers who were allotted the higher revised scale were said to hold the posts designated as "Assistant Divisional Medical Officer Assistant", In short, all the officers comprising the two groups were Assistant Medical Officers, and an Assistant Divisional Medical Officer was nothing but an Assistant Medical Officer who drew the higher revised scale of pay.
That being so, the conclusion is inescapable that Assistant Divisional Medical Officers were, for the purpose of promotion as Divisional Medical Officers, governed by the Rules of 1965 and the Rules of 1973.
Those Rules mention Assistant Medical Officers as a source of recruitment, without referring to any limiting qualification that they should be officers drawing a Class II scale of pay.
The expression "Assistant Medical Officer" in those Rules is comprehensive enough to include all Assistant Medical Officers, whether drawing the Class II revised scale of pay or entitled to the Class I revised scale of pay.
And all such Officers were, under those Rules, governed by the principle of selection on merit for promotion as Divisional 838 Medical Officers.
It must be remembered that Assistant Medical Officers were designated as Assistant Divisional Medical Officers with effect from January 1, 1973, when the Rules of 1965 were still in force.
The Rules of 1973 came into force in August, 1973.
It is true that when Assistant Medical Officers were designated as Assistant Divisional Medical Officers in the revised Class I scale of Rs. 700 1600 by a notification such as Notification No. E (GP) 74/1/153 dated July 24, 1976, the notification spoke of the "appointment" of Class II Assistant Medical Officers as Assistant Divisional Medical Officers, but having regard to the terms of the schedule to the Railway University 's letter dated December 31, 1974 referred to earlier, such notification must be understood to mean that the Assistant Medical Officers had been assigned the Class I scale of Rs. 700 1600 and merely described as Assistant Divisional Medical Officers.
As explained earlier, they continued to belong to the broad category "Assistant Medical Officers".
In this connection, it is significant that upon Assistant Medical Officers being designated as Assistant Divisional Medical Officers under the new scheme, there was no corresponding amendment in the Rules of 1965 or the Rules of 1973.
It is for the first time, under the Rules of 1978, that we find that the post of Divisional Medical Officer is described as a "non selection" post to be filled by promotion from the ranks of Assistant Divisional Medical Officers and by direct recruitment.
In other words, the only Assistant Medical Officers now entitled to promotion as Divisional Medical Officers were those drawing the Class I scale of Rs. 700 1600 and designated as "Assistant Divisional Medical Officers".
What is important to remember is that the new sub division of Assistant Medical Officers described as Assistant Divisional Medical Officers was deemed to have taken birth on January 1, 1973.
five and a half years before the Rules of 1978 were brought into force.
It could never have been intended that this class of officers should exist in a vacuum where no rules operated.
There was no vacuum because they were comprehended within the expression "Assistant Medical Officer" in the Rules of 1965 and the Rules of 1973, and therefore no amendment was considered necessary in those Rules to take cognizance of this class or sub division.
We hold that the principle of selection by merit, enunciated in the Rules of 1965 and the Rules of 1973 governed the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts of Divisional Medical Officer before the Rules of 1978 came into force.
Both before and after January 1, 1973, 839 during the period before the Rules of 1978 came into force, the principle of "non selection", that is seniority cum suitability in the lower grade, which was provided in the Rules of 1978 did not apply to the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts of Divisional Medical officers.
It is also beyond dispute that having regard to the provisions of the Rules of 1978, those Rules can apply only to promotions and appointments to the posts of Divisional Medical Officers made under them, that is from and after August 12, 1978.
They cannot affect promotions and appointments already made before that date.
And as the act of confirmation does not amount to a fresh appointment but merely to setting the seal of approval on an appointment already made, it must follow that the Rules of 1978 cannot be applied for the purpose of confirming promotions and appointments made under the earlier Rules.
Consequently, upon all the considerations set forth earlier, the confirmation of the petitioners and all other officers appointed to the posts of Divisional Medical Officer before the Rules of 1978 came into force must be governed by the Rules of 1965 and the Rules of 1973.
It may be noted that promotions and appointments made under the Rules of 1965, on the repeal of those rules by the Rules of 1973, fall to be governed by the Rules of 1973, for while repealing tho Rules of 1965 Rule 9 of the Rules of 1973 provides: "Provided that anything done or any action under the rules so repealed shall be deemed to have been done or taken under the corresponding provisions of these rules.
" Significantly, such a saving provision is absent in the Rules of 1978.
this is as clear an indication as any that the scheme under the Rules of 1978 marked a complete departure from that embodied in the earlier Rules.
We hold that the confirmation of the petitioners and other officers appointed as Divisional Medical Officers fall to be considered under the Rules of 1965 or the Rules of 1973 and not under the Rules of 1978.
Accordingly, the rule of seniority cum suitability cannot be applied to the petitioners and the promotee 840 respondents, and all promotee respondents who were promoted to the posts of Divisional Medical Officer subsequent to the petitioners must be regarded as junior to them, notwithstanding that they may have ranked senior to the petitioners in the grade of Assistant Medical Officers (including Assistant Divisional Medical Officers).
This principle will rule even where confirmation is made zone wise, for in the absence of anything adverse in the officer 's conduct, quality of work or other relevant factor, confirmation should follow the order in which the original appointments have been made.
The respondents point out that the impugned Seniority List was prepared in 1979, when the Rules of 1978 were in force, and therefore the principle of seniority cum merit was made the basis of the Seniority List.
It is immaterial, in our opinion, that the Seniority List was prepared in 1979.
The inter se seniority between the members of a service will ordinarily depend on the date of entry into the grade.
That is an event governed by the rales of recruitment, whether it be direct recruitment or promotion on the basis of selection on merit or on the basis of seniority in the lower grade or some other factor.
Where seniority is fixed in a grade according to the length of service in that grade, that implies a reference back to the date of entry.
It is wholly immaterial when the Seniority List is prepared.
We approach the second part of this case now.
The petitioners challenge the seniority assigned to the direct recruit respondents in the impugned Seniority List.
They contend that the quota prescribed for direct recruitment and for promotion under the Rules has been wrongly applied at the stage of confirmation when it should have been applied at the stage of appointment.
They also contend that there is no provision for applying the principle of rotation of vacancies between direct recruits and promotees for the purpose of determining relative seniority between them.
And even if it can be said that the directive issued in 1976 constitutes a valid rule of rotation, it is open to prospective operation only and cannot be applied retrospectively.
Finally, the petitioners urge that the promotees should be held entitled to a weightage of five years on the basis of their service in the Class II posts of Assistant Medical Officers when considering their seniority in relation to direct recruits.
841 The case of the respondents that the inter se seniority between the direct recruit and the promotee Divisional Medical Officers has been carefully fixed with reference to the direct recruitment and promotional quotas in force from time to time, without affecting the date of confirmation of the Divisional Medical Officers.
It is explained that where the promotees have been promoted in excess of their quota in a particular year, they have to be pushed down to a later year for absorption when due within their quota, and seniority has been fixed accordingly.
It is pointed out that for some years direct recruitment could not be resorted to on the required scale as the restructuring of the Medical Department was under consideration with a view to improving the avenues of promotion.
In consequence direct recruits appointed in later years were brought up higher in the Seniority List in order to provide them their due position according to the quota of vacancies laid down for direct recruitment.
The respondents also point out that Divisional Medical Officers were allowed to count seniority only from the date of permanent absorption if such absorption was within their quota.
It is stated that from 1973 onwards representations were made by and on behalf of promotees Divisional Medical Officers to give them weightage in respect of their officiating service for the purpose of seniority in the cadre of Divisional Medical Officers vis a vis the direct recruits, and after giving due consideration to those representations and taking into regard the judgment of this Court in A. K. Subraman & Ors. etc.
vs Union of India & Ors., it was decided that inter se seniority between direct recruit Divisional Medical Officers and promotee Divisional Medical Officers promoted permanently should be fixed on a rotational basis with reference to the direct recruitment and promotional quotas in force from time to time.
It is maintained that the impugned Seniority List was prepared on the basis of those principles.
The petitioners, it is urged, cannot claim inclusion in that list as none of them had been promoted as Divisional Medical Officers on a permanent basis against the quota of seats reserved for such promotions under the relevant Rules.
The claim of the petitioners to a weightage of five years of substantive service rendered in the lower grade is disputed by the respondents on the ground that the principle providing such weightage for seniority has not been applied to the Medical Department of the Railways in view of the structural pattern of the Department.
842 The objection of the Respondents that the petitioners were not appointed to the posts of Divisional Medical Officers on a permanent basis and therefore they were not entitled to inclusion in the Seniority List can be disposed of shortly.
We have already held while examining the case of the petitioners vis a vis the promotee respondents that the petitioners were entitled to be treated at par with substantively appointed Divisional Medical Officers for the purpose of fixing seniority, and the circumstance that they were appointed in an officiating capacity was of no significance in this regard.
We have pointed out that for determining seniority among promotees the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointments and the entire period of their officiating service should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts.
We have held further that the promotee respondents appointed subsequently to the petitioners must be regarded as junior to them even though senior in the lower grade.
We have detailed the reasons for taking this view.
Applying the same criteria for determining the seniority between the petitioners and the direct recruits, we are of opinion that the petitioners must be held senior to the direct recruits appointed subsequently to them.
In this connection, it would be permissible to quote from the judgment of this Court in O. P. Singla (Supra), where the question was of fixing seniority between temporary promotees and direct recruits: "Promotees, who were appointed under Rule 16 have been officiating continuously, without a break, as Additional District and Sessions Judges for a long number of years.
It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not wake up to the necessity of converting the temporary posts into permanent ones even after some of the promotees had worked in those posts from five to twelve years.
The fact that temporary posts created in the Service under Rule 16(1) had to be continued for years on end shows that the work assigned to the holders of those posts was, at least at some later stage, no longer of a temporary nature.
And yet instead of converting the temporary posts into permanent ones, the authorities slurred over the matter and imperilled, though unwittingly 843 the reasonable expectations of the promotees . .
It is not fair to tell the promotees that they will rank as juniors to direct recruits who were appointed five to ten years after they have officiated continuously in the posts created in the Service and held by them, though such posts may be temporary." And further: "The best solution to the situation which confronts us is to apply the rule which was adopted in S.B. Patwardhan vs State of Maharashtra ; It was held by this Court in that case that all other factors being equal, continuous officiation in a non fortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities.
Since the rule of 'quota and rota ' ceases to apply when appointments are made under Rule 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruit were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the Service or in substantive vacancies to which they were appointed in a temporary capacity.
" Considerable emphasis has been laid by the respondents on the fact that in the present case the pertinent Rules laid down the respective direct recruitment and promotional quotas from time to time, and it was necessary to adjust the seniority between the direct recruit Divisional Medical Officers and the promotee Divisional Medical Officers in such a way that the quotas were maintained from year to year.
This implied, it is urged, the rotation of vacancies between the two classes reserving them for one or the other in an order which would ensure compliance with the quotas.
The Rules themselves do not lay down any principle of rotation.
They specify the quotas only.
It was for the first time on May 26/27, 1976 that the Railway Ministry by its letter No.
E(O)I 74/SR 6/10 directed that "the seniority of Class II officers of the Medical Department, 844 promoted to Class I Senior Scale against the quota earmarked for a particular year vis a vis the officers recruited against the direct recruitment quota for that year will be fixed on a rotational basis with reference to the direct recruitment and promotional quotas in force from time to time.
" This directive, however, can be of no assistance to the respondents.
It may be open to an administration to work the quota rule through a principle of rotation, but that implies that a quota rule is being actively operated and effect is being given to it.
In the present case, it must be borne in mind that the quotas laid down by the Rules were not observed at all by the Railway administration, and no direct recruitment was made during the years 1973 to 1976.
Indeed, the process of direct recruitment was employed on a substantial basis only from 1978 onwards.
Only one officer appears to have inducted by direct recruitment into the grade in 1977 and apparently none before.
The grade of Divisional Medical Officers was manned by promotees selected on their merit under the Rules of 1965 and the Rules of 1973 There was power under Rule 7 of the Rules of 1973 to relax the provisions of those Rules, which would include the provision requiring the observance of specified quotas for recruitment from promotional and from direct recruitment source It seems to us that the present case falls within the dicta of this Court in A. Janardhana vs Union of India and Others where the Court said: "We do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely, that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service." and concluded with the observations: "Even where the recruitment to a service is from more than one source and a quota is fixed for each service 845 yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long, prolix and time consuming.
The Government for exigencies of service, for needs of public services and for efficient administration, promote persons easily available because in hierarchical service one hopes to move upward.
After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market years after promotee was inducted in the service comes and challenges all the past recruitments made before he was borne in service and some decisions especially the ratio in Jaisinghani case as interpreted in two B.S. Gupta cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted.
When the promotee was promoted and was rendering service, the direct recruit may be a schoolian or college going boy.
He emerges from the educational institution, appears at a competitive examination and starts challenging everything that had happened during the period when he has had nothing to do with service .
If this has not a demoralising effect on service we fail to see what other inequitous approach would be more damaging.
It is, therefore, time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or non statutory rules should not be permitted by any principle of seniority to secure a march over a promotee because that itself being arbitrary would be violative of Articles 14 and 16." In the present case, there was no direct recruitment upto 1977 for certain administrative reasons, and no observance of the quota system embodied in the prevailing Rules.
The Assistant Medical Officers were pressed into service, promoted as Divisional Medical 846 Officers and were alone responsible for assuming the burden and discharging the functions and duties of those posts during all the years until direct recruitment was made.
It would be grossly unjust and discriminatory in the circumstances to require them to be junior to direct recruits brought in some years later.
The respondents rely on A.K. Subraman (supra).
In that case, however, the facts which the Court took into consideration and upon which it proceeded to render judgment were different.
The point raised in the present case falls more appropriately within the scope of the observations in A. Janardhana (supra), to which elaborate reference has been made earlier.
Indeed, when A.K. Subraman (supra) was considered subsequently by this Court in P.S. Mahal vs Union of India the Court expressly referred to the exception implied in Bishan Sarup Gupta vs Union of India as the effect of a serious deviation from the quota rule, and it recorded its agreement with A Janardhana (supra).
It said: "But this rotational rule of seniority can work only if the quota rule is strictly implemented from year to year.
Some slight deviations from the quota rule may not be material but as pointed out by Palekar, J. in the Bishan Sarup Gupta case, "if there is enormous deviation, other considerations may arise".
If the rotational rule of seniority is to be applied for determining seniority amongst officers promoted from different sources, the quota rule must be observed.
The application of the rotational rule of seniority when there is large deviation from the quota rule in making promotions is bound to create hardship and injustice and result in impetmissible discrimination.
That is why this Court pointed out in A.K. Subraman case that '. when recruitment is from two or several sources it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation.
The existence of a quota and rotational rule, by itself, will not violate Article 14 or Article 16 of the 847 Constitution It is the unreasonable implementation of the same which may, in a given case, attract the frown of the equality clause. ' (SCC para 28, p.333:SCC (L&S) p.50) The rotational rule of seniority is inextricably linked up with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularity from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority.
We agree wholly with the observation of D.A. Desai, J. in A Janardhana vs Union of India that '. where the quota rule is linked with the seniority rule if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, inequitous and improper. ' (SCC para 29, p.621 :SCC (L&S) p. 487) This was precisely the reason why the Court in the first Bishan Sarup Gupta case held that with the collapse of the quota rule, the rule of seniority set out in Rule 1 (f) (iii) also went.
" In our opinion, the directly recruited Divisional Medical Officers are entitled to seniority only from the date of their entry into service and not from any anterior date, and therefore cannot enjoy a seniority above the petitioners.
The date of appointment to a permanent vacancy, whether of a promotee or a direct recruit, will be the date for determining the seniority of the officer.
We may also observe that there is no ground for detaining the confirmation of the petitioners merely because the quota reserved for direct recruitment has not been filled.
As regards the claim to weightage made by the petitioners on the basis of their service in the lower grade of Assistant Medical Officers, we find no substance in the claim because the administrative instructions issued under the Railway Board 's letter No. E.54/SR 6/1/2 dated March 10, 1955, on which the petitioners rely, did not apply to the Medical Department of the Railways.
In the result, the writ petition is allowed, the Seniority List published by the Railway Ministry 's letter No. 752 E/530 (E1A) 848 dated November 22, 1979 as well as the appointments made to the posts of Medical Superintendents by the Railway Ministry 's letter No. E(O)III 81 PM6/199 dated August 31, 1981 are quashed.
The Railway administration is directed to draw up a fresh Seniority List of Divisional Medical Officers in accordance with the principles laid down in the judgment and to make fresh appointments from among the Divisional Medical Officers to the posts of Medical Superintendents.
The petitioners are entitled to their costs against respondents Nos. 1, 2 and 3.
A.P.J. Petition allowed.
[/INST]The Indian Railways Medical Service consists of Assistant Divisional Medical Officers Class I (before January 1, 1973 described as Assistant Medical Officers Class II), Divisional Medical Officers, Medical Superintendents, Chief Medical Officers and Director General of Medical Services.
The Petitioners in the writ petition who were Assistant Medical Officers Class II were confirmed, one in 1962 and the others in 1963.
During the years 1970 to 72 they were selected by Departmental Promotion Committees for officiating appointments to the Class I post of Divisional Medical Officers.
At that time the Indian Railway Medical Service (District Medical Officers) Recruitment Rules 1965 were applicable.
Those Rules were repealed and replaced by the Indian Railway Medical Service (District Medical Officers) Recruitment Rules 1973.
Under the Rules of 1965 and the Rules 1973 the posts of District Medical Officers were treated as selection posts.
819 The existing pay scale of Rs. 350 900 attached to the post of Assistant Medical Officer was revised by the Third Pay Commission and split into two A pay scales, a higher Class I scale of Rs. 700 1600 and a lower Class II scale of Rs. 650 1200 and the posts of Assistant Medical Officers were divided into those carrying the higher pay scale and those carrying the lower pay scale.
The upgraded posts in the higher pay scale of Rs. 700 1600 were designated as "Assistant Divisional Medical Officers".
The petitioners were placed in the higher pay scale of Rs. 700 1600 and were designated as Assistant Divisional Medical Officers with effect from January 1, 1973.
The Rules of 1973 were replaced by the Indian Railway Medical Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules 1975, which were further replaced by the Indian Railway Medical Service (Chief Medical Officers, Additional Chief Medical Officers, Medical Superintendents and Divisional Senior Medical Officers) Recruitment Rules, 1978.
Under these Rules promotion is effected on the principle of "non selection", that is, on "seniority cum suitability" basis.
The Rules of 1965 showed that there were 101 posts in the grade of Divisional Medical Officers.
The Rules of 1973 mentioned 109 posts and referred to them as permanent posts only.
The Railway Ministry for the promotion of Assistant Medical Officers to the Class I posts of Divisional Medical Officers indicated the number of anticipated vacancies for the purpose of permanent promotion and the number of anticipated vacancies for the purpose of officiating appointments, the number under each category being specified zone wise.
A Class I Departmental Promotion Committee met on several occasions and considered the cases of candidates who had completed five years and above of service as Assistant Medical Officers for substantive promotion and for officiating promotion, the field of choice being extended to six times the number of vacancies.
The petitioners were selected on the basis of merit and appointed to officiate as Divisional Medical Officers on different dates in 1971 and 1972, except petitioner No. 7 who was promoted and appointed in 1974.
The Railway Board on October 30, 1979 published a combined seniority list of Divisional Medical Officers recruited directly or by promotion.
Respondents Nos. 4 to 64 included both promotees and direct recruits and were shown in that list.
The petitioners did not find place in the seniority list.
Subsequently on the basis of that seniority list, some of the respondent Divisional Medical Officers were appointed on August 31, 1934 to of officiate as Medical Superintendents.
In the Writ Petition under article 32 the petitioners challenged the validity of the combined seniority list dated 30th October, 1979 of Divisional Medical Officers and of the officiating promotions to the posts of Medical Superintendents as violative of articles 14 and 16 of the Constitution, contending: that they were promoted as Divisional Medical Officers much earlier than the promotee respondents; that their promotion was made by selection on the basis of merit 820 adjudged by the Departmental Promotion Committees under the Rules of 1965; that they had continued in service as Divisional Medical Officers against vacancies in permanent posts without interruption for periods ranging between 8 years to 12 years, and that the promotee respondents, who had held such posts for shorter periods, had been confirmed before the petitioners and shown senior in the seniority list and preferred for promotion as Medical Superintendents; that the petitioners should have been confirmed in the normal course; that the promotee respondents have been confirmed zone wise, and such confirmation cannot serve as a proper reference for determine seniority because when confirmation is granted zone wise, it depends on the fortuitous accrual of vacancies arising arbitrarily at different times and in different numbers in different individual zones; that if the date of confirmation is adopted as the criterion, confirmation should not be reckoned on a zonal basis.
Promotion to the post of Medical Superintendents, which is an all India cadre post should properly be drawn on an All India basis and that if confirmation has to be considered zone wise then for the purpose of promotion to the all India cadre of Medical Superintendents the only logical and uniform criterion should be the total length of continuous service as Divisional Medical Officers reckoned from the date of promotion; that for the purpose of fixing seniority in the grade of Divisional Medical Officers the seniority in the grade OF Assistant Medical Officers or Assistant Divisional Medical Officers is of no material significance because under the Rules in force when the promotion in the instant case were made, the petitioners were governed by the principle of selection on the basis of merit; that the quota prescribed for direct recruitment and for promotion under the Rules has been wrongly applied at the stage of confirmation when it should have been applied at the stage of appointment and that there is no provision for applying the principle of rotation of vacancies between direct recruits and promotees for the purpose of determining relative seniority between them.
The respondents, however contended: that the seniority list has been correctly prepared, it contains the names of only those officers who were either directly recruited as Divisional Medical Officers or had been approved for permanent promotion against the quota of posts reserved for them in vacancies allotted among the individual Railways on the basis of the cadre position of each Railway, and that none of the petitioners qualified for inclusion in the seniority list as they had been promoted in an officiating capacity to temporary vacancies in the posts of Divisional Medical Officers; that the petitioners have no right to be treated at par with those officers who were holding permanent posts on a confirmed basis, as confirmation was made on the basis of their selection for permanent promotion as Divisional Medical officers and their seniority was also fixed on that basis.
According to the practice followed by the Railway Administration three select lists were prepared.
List A set out the names of officers selected for substantive promotion against permanent vacancies.
List included the names of officers selected for officiating promotion against temporary vacancies.
The petitioners were placed in List B. The third list.
List C, bore the names of officers included in List by earlier Depart mental Promotion Committees but not considered as "suitable yet" for substantive promotion by subsequent Departmental Promotion Committees.
The inter se seniority between the direct recruit and the promotee Divisional Medical 821 Officers has been carefully fixed with reference to the direct recruitment and promotional quotas in force from time to time, without affecting the date of confirmation of the Divisional Medical Officers.
The petitioners cannot claim inclusion in the impugned seniority list as none of them had been promoted as Divisional Medical Officers on a permanent basis against the quota of seats reserved for such promotions under the relevant Rules, and cannot get weightage of five years of substantive service rendered in the lower grade because the principle providing such weightage for seniority has not been applied to the Medical Department of the Railways.
Allowing the petition, ^ HELD: 1.
The seniority list published by the Railway Ministry 's letter No. 752 E/530 (EI A) dated November 22, 1979 as well as the appointments made to the posts of Medical Superintendents by the Railway Ministry 's letter No. E(O) III 81 PM6 199 dated August 31, 1981 are quashed.
The Railway Administration is directed to draw up a fresh Seniority List of Divisional Medical Officers and to make fresh appointments from among Divisional Medical Officers to the posts of Medical Superintendents.
[847 H; 848 A B] 2.
There is nothing to indicate why the Railway Ministry sought to fill some of the vacancies in the permanent posts on a substantive basis and the others on an officiating basis.
The explanation offered is that substantive appointments were made to permanent vacancies and officiating appointments were made to temporary vacancies.
The documents on record do not speak of temporary vacancies at all.
There is no material suggesting the need for treating some of the vacancies as temporary and to show that some vacancies would have ceased to exist within the foreseeable future or upon the happening of some anticipated contingency On the contrary, the petitioners had continued to fill the vacancies to which the petitioners were appointed should be regarded as permanent vacancies.
[831 D G] 3.
The explanation that officiating appointments were made when some of the candidates considered for substantive appointment were found to be of inferior calibre for such appointment and, therefore, some of the vacancies were left to be filled on an officiating basis is not plausible.
The communication of the Railway Ministry to the Departmental Promotion Committee specifying the number and nature of the appointments to be made was issued long before the cases of individual officers were examined for promotion.
It was only after the Departmental Promotion Committee had been informed of the Railway Ministry 's requirement that it commenced its task of selecting candidates for substantive appointment and for officiating appointment.
The material produced by the respondents shows that the petitioners did not at any time fall within the field of choice for making substantive appointments.
That was because their seniority in the grade of Assistant Medical Officers did not at the relevant time bring them within the field of choice for substantive appointment.
They were considered for officiating appointment only, and not for substantive 822 appointment.
It was the mere statistical fact of their seniority as Assistant Medical Officers, and not their merit, that precluded their consideration for substantive appointment as Divisional Medical Officers at the relevant time.
[831 H; 832 A D] 4.
If from the outset the temporary vacancies had been regarded as permanent vacancies, and substantive appointments had been made instead of officiating appointments, the petitioners would have been appointed substantively to those permanent vacancies.
In the entire field of choice in which they fall, they were found to be the most meritorious.
Ever since their respective appointments in 1971, 1972 and 1974 the petitioners have continued to serve without interruption as Divisional Medical Officers and were doing 50 when this writ petition was filed in 1981.
They have continued to serve in the posts for a significant number of years, and there is no indication that their appointments will come to an end merely because the vacancies have been described as temporary.
There is no material to show that their confidential Records contained any adverse entries or that otherwise they were not fit on their merit for substantive appointment to permanent vacancies.
The petitioners have now been appointed Divisional Medical Officers on a substantive basis.
The only reason why they were not originally appointed substantively to permanent vacancies as Divisional Medical Officers is that only a limited number of substantive appointments was desired by the Railway Ministry and the petitioners were not considered for those substantive appointments because they did not fill within the field of choice, having regard to their place of seniority in the lower grade of Assistant Medical Officers.
[832 F H; 833 A B] 5.
The petitioners are entitled to say that they should be considered at par, for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity.
There is nothing to indicate why they should not be entitled to the benefits which the substantive holders of permanent posts enjoy.
For the purpose of determining seniority among promotees the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts.
[834 A C] Baleshwar Prasad vs State of UP.,[1981] 1 S.C.R. 449, 462 and O.P. Singla vs Union of India, , followed.
In the instant case, as the petitioners are continuing to hold the posts of Divisional Medical Officers for several years, the inclusion of their names in List is wholly meaningless.
[834 D] 7.
If length of continuous service reckoned from the date of promotion furnishes the criterion for determining seniority between the petitioners and the substantively appointed Divisional Medical Officers, that principle should apply 823 with equal vigour as between the petitioners and those promotee respondents who also began to serve, like the petitioners, in officiating appointments as Divisional Medical Officers.
There is no reason why such promotee respondents, although appointed subsequently to the petitioners, should be treated as senior to them.
[834 F] 8.
The date of confirmation is the material date for determining relative seniority.
The Railway administration in according confirmation has been influenced by two principle factors.
One is that confirmation has been considered zone wise.
Confirmation has been made as vacancies have arisen within a particular zone.
The vacancies differ from zone to zone.
They no not arise equally in different zones but turn on factors peculiar to each zone, such as the strength of the cadre within the zone, and the differing number of vacancies arising in different zones at different times.
In other words, confirmation based on the placement of an officer within a particular zone must necessarily be determined by factors confined to that zone and unrelated to an all India standard.
It is apparent that confirmations limited by such a local perspective cannot serve as a legitimate base for drawing up a seniority list intended for effecting promotion, to the all India cadre of Medical Superintendents.
To adopt the date of confirmation as the governing point in such circumstances is to inject an element of inequality into the very foundation of the promotion process.
It is conceivable that the Railway Administration has adopted the rule of according confirmations zone wise for certain practical consideration and the validity of that practice need not be adjudicated on.
But such confirmations cannot legitimately constitute the basic norm for drawing up a seniority list of Divisional Medical Officers for the purpose of promotion to the grade of Medical Superintendents.
The principle must be that seniority should be related to the length of continuous service as Divisional Medical Officers reckoned from the date of promotion to the post; such service should not include any period served in a fortuitous, stop gap or adhoc appointment.
[834 G H; 835 A E] 9.
After implementation of the recommendations of the Third Pay Commission, all the officers comprising the two groups were Assistant Medical Officers, and an Assistant Medical Officer was nothing but as Assistant Medical Officer who drew the higher revised scale of pay.
The conclusion is inescapable that Assistant Divisional Medical Officers were, for the purpose of promotion as Divisional Medical Officers, governed by the Rules of 1965 and the Rules of 1973.
Those Rules mention Assistant Medical Officers as a source of recruitment, without referring to any limiting qualification that they should be officers drawing a Class II scale of pay.
The expression "Assistant Medical Officer" in those Rules is comprehensive enough to include all Assistant Medical Officers, whether drawing the class II revised scale of pay or entitled to the Class I revised scale of pay.
And all such Officers were, under those Rules, governed by the principle of selection on merit for promotion as Divisional Medical Officers.
The Assistant Medical Officers were designated as Assistant Divisional Medical Officers with effect from January 1, when the Rules of 1965 were still in force The Rules of 1973 came into force in August, 1973.
It is true that when Assistant Medical Officers were designated as Assistant Divisional Medical Officers in the revised Class I scale of Rs. 700 1600 by 824 Notification No. E(GP) 74/1/153 dated July 24,1976, the notification spoke of the "appointment" of Class II Assistant Medical Officers as Assistant Divisional Medical Officers, but having regard to the terms of the schedule to the letter dated December 31, 1974 such notifications must be understood to mean that the Assistant Officers had been assigned the Class I scale of Rs. 700 1600 and merely described as Assistant Divisional Medical Officers.
They continued to belong to the broad category of "Assistant Medical Officers".
Upon Assistant Medical Officers being designated as Assistant Divisional Medical Officers under the new scheme, there was no corresponding amendment in the Rules of 1965 or the Rules of 1973.
It is for the first time, under the Rules of 1978, that the post of Divisional Medical Officer is described as a "non selection" post to be filled by promotion from the ranks of Assistant Divisional Medical Officers and by direct recruitment.
The only Assistant Medical Officers now entitled to promotion as Divisional Medical Officers were those drawing the Class I scale of Rs 700 1600 and designated as Assistant Divisional Medical Officers".
The new sub division of Assistant Medical Officers described as Assistant Divisional Medical Officers was deemed to have taken birth on January 1, 1973 five and a half years before the Rules of 1978 were brought into force.
It could never have been intended that this class of Officers should exist in a vacuum where no rules operated.
There was no vacuum because they were comprehended within the expression "Assistant Medical Officer" in the Rules of 1965 and the Rules of 1973, and therefore, no amendment was considered necessary in those Rules to take congnisance of this class.
[837 E H; 838 A G] 10.
The principle of selection by merit, enunciated in the Rules of 1965 and the Rules of 1973 governed the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts of Divisional Medical Officer before the Rules of 1978 came into force Both before and after January 1, 1973, during the period before the Rules of 1978 came into force the principle of "non selection", that is seniority cum suitability in the lower grade, which was provided in the Rules of 1978 did not apply to the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers to the posts of Divisional Medical Officers.
[838 G H; 839 A] 11.
The confirmation of the petitioners and all other officers appointed to the posts of Divisional Medical Officer before the Rules of 1978 came into force must be governed by the Rules of 1965 and the Rules of 1973.
The promotions and appointments made under the Rules of 1965, on the repeal of those rules by the Rules of 1973, fall to be governed by the Rules of 1973.
[839 D E] 12.
The inter se seniority between the members of a service will ordinarily depend on the date of entry into the grade.
That is an event governed by the Rules of recruitment, whether it be direct recruitment or pro motion on the basis of selection on merit or on the basis of seniority in the lower grade or some other factor.
Where seniority is fixed in a grade according to the length of service in that grade, that implies a reference back to the date of entry.
It is wholly immaterial when the seniority list is prepared.
[840 C E] In the instant case, applying the criteria for determining seniority vis a vis the promotee respondents and the petitioners to the case of petitioners and the 825 direct recruits, the petitioners must be held senior to the direct recruits appointed subsequently to them.
[842 D E] O.P. Singla vs Union of India, , followed.
The rules themselves do not lay down any principle of rotation.
They specify the quotas only.
It was for the first time on May 26/27, 1976 that the Railway Ministry by its Letter No E(O) I 74/SR 6/10 directed that the seniority of Class II officers of the Medical Department, promoted to Class I Senior Scale against the quota earmarked for a particular year vis a vis the officers recruited against the direct recruitment quota for that year will be filed on a rotational basis with reference to the direct recruitment and promotional quotas in force from time to time.
" This directive, however, can be of no assistance to the respondents.
It may be open to an administration to work the quota rule through a principle of rotation, but that implies that a quota rule is being actively operated and effect is being given to it.
In the present case, the quotas laid down by the Rules were not observed at all and no direct recruitment was made, during the years 1973 to 1976.
Indeed, the process of direct recruitment was employed on a substantial basis only from 1978 onwards.
There was power under Rule 7 of the Rules of 1973 to relax the provisions of those rules, which would include the provision requiring the observance of specified quotas for recruitment from promotional and from direct recruitment sources.
[843 G H; 844 A D] A. Janardhana vs Union of India & Ors., [1983] 3 S.C.C. 601, followed, and A.K. Subraman & Ors. etc.
vs Union of India & Ors., [1975] 2 S.C.R. 979 inapplicable.
P.S. Mahal vs Union of India, ; and Bishan Sarup Gupta vs Union of India, [1975] Supp.
S.C.R 491, referred to.
[847 E] 14.
The directly recruited Divisional Medical Officers are entitled to seniority only from the date of their entry into service and not from any anterior date, and therefore cannot enjoy seniority above the petitioners.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 124 of 1972 350 Appeal by Special Leave from the Judgment and order dated 24 11 1971 of the Delhi High Court in Criminal Appeal No.54 of 1971.C. P. Lal for the Appellant.
H. R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
The; appellant in this appeal by special leave limited to the determination of the question: whether the sanction is valid in law or not, has been convicted for offences under section 5(2) read with section S(1) (d) of the Prevention of Corruption Act, 1947 ( 'Act ' for short), and section 161 of the Indian Penal Code, and was sentenced to suffer rigorous imprisonment for 18 months on each could and a fine of Rs. 2000/ , in default to suffer further rigorous imprisonment for a period of two months, for an offence under section 5(2) of the Act.
His appeal being Criminal Appeal No. 54 of 1971 was dismissed by the High Court of Delhi and the conviction and sentence were confirmed.
As the leave is limited to the question of the validity of sanction ac corded under section 6 of the Act, it is not necessary to set out in detail the prosecution case.
Briefly stated, the prosecution case is that the appellant who was employed at the relevant time as Investigator in the office of the Chief Controller of Imports & Exports (C.C.I.E. for short), accepted from one P.T. Toprani an amount of Rs. 250/ by way.
of illegal gratification which was not his legal remuneration in presence of witnesses on 18th June 1969 at about 5.30 p.m. near Gujarati Samaj; Sabha, Delhi.
D. section P. Badri Sharma appeared as soon as the trap arranged by him materialised and recovered the amount of Rs. 2501/ from the appellant.
After completing the investigation the appellant was charge sheeted for the offences hereinabove mentioned.
Section 6 of the, Act forbids the Court from taking cognizance, inter alia, of offences punishable under section 161, IPC and under sub section
(2) of s 5 of the Act except with the previous sanction of the authority therein set out.
Necessary sanction was accorded by the Jt.
C.C.I.E.
On 26th November 1969.
The relevant portion of the sanction reads as under: "Now, therefore, I, section P. Chablani, being the authority competent to remove the said Shri L. section Srivastava, from office do hereby accord sanction under section 6(1) (c) of the prevention of Corruption Act, 1947 for the prosecution of the said Shri L. section Srivastava, for the said offences under section 161, I.P.C. and 5(2) read with 5(1)(d) of Act II of 1947 and in 351 any other offence punishable under the provisions of law, in respect of the facts aforesaid and for the taking of cognizance of the said offences by a court of competent jurisdiction".
Mr. H. R. Khanna, learned counsel who appeared for the respondent raised a preliminary objection.
It was urged that the appellant died during the pendency of this appeal and, therefore, the appeal abates and cannot be proceeded with.
Simultaneously it was urged that if the appeal were not to abate on the only ground that the appellant was also sentenced to pay a fine of Rs. 200/ and, therefore.
it may he said that right to property of the legal representatives may he adversely affected and, therefore, they would be entitled to continue the appeal, the respondent State is prepared to concede that the sentence of fine may be set aside.
Section 394 of the Criminal Procedure Code which provides for abatement of appeals reads as under: "394.
(1) Every appeal under section 377 or section 378, shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except all appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal any of his near relatives may, within thirty days of the (death of the appellant, apply to the Appellate Court for leave to continue to the appeal; and if Leave is granted, the appeal shall not abate.
Explanation In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister".
The appeal by the appellant is not one under section 377 or section 378 or the Cr.
P.C. and, therefore, sub section
(1) of section 394 will not be attracted The trial for an offence under section 161 IPC and section 5(2) of the Act would be governed by the provisions of Criminal Law Amendment Act, 1952.
lt envisages setting up of Court of special Judge.
Section 8(3) of the Criminal Law Amendment Act provides that the Court of Special Judge shall be deemed to be a Court of Sessions.
Section 9 confers power upon the High Court to exercise all powers of appellate Court as if the Court of Special Judge were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court.
352 The present case would, therefore, be governed by sub section (2) of s.394, Cr.
P.C. It becomes clear from the proviso to section 394(2), Cr.
P.C. that where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within the time prescribed therein, apply to the appellate court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate.
The appellant has preferred the appeal against his conviction and sentence of imprisonment as also sentence of fine.
After his death his near relations as contemplated in the Explanation to sub section
(2) of section 394, Cr.
P.C. applied by Criminal Miscellaneous Petition No. 559 of 1978 to continue the appeal and this Court granted substitution of such near relations by its order dated 28th March 1978 and thereby granted leave to continue the appeal.
Therefore, the near relations of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside yet the appeal would not abate because the appeal against conviction and sentence of imprisonment would not abate if leave is granted to the near relations of the deceased to continue the appeal.
Such Leaving having been granted, the appeal would not abate.
There is thus no merit in the preliminary objection and it must be negatived.
Section 6 of the Act which provides for necessity of previous sanction for prosecution for any of the offences under the Act reads as.
under: "6.
(1) No court shall take cognizance of an offence punishable under section 161 ( or section 164) or section 1165 of the Indian Penal Code, or under sub section (2) or Sub section (3A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed` in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the State Government, of the Central Government.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the Central Government, of the State Government.
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section 353 (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed".
Mr. Lal for the appellant contended that as the appellant was an Investigator in the office of the C.C.I.E. which at best was a Department under the over all control of the Ministry of Foreign Trade and Supply.
Government of India, the sanction to prosecute him could only be given by the Government of India.
In the alternative it was contended that as the C.C.I.E. is head of the office, he alone could accord sanction for prosecution as contemplated by section 6 and, therefore.
the sanction accorded by Jt.
C.C.I.E., an officer subordinate to C.C.I.E .
was ab initio void and the Court could not have taken cognizance of the offence.
Mr. Khanna for the respondent on the other hand contended that this case would be governed by Central Civil Services (Classification, Control and Appeal Rules, 1965 ( '1965 Rules ' for short), and in view of S.R.O. 631 issued by the President in exercise of the powers D` conferred by sub rule (2) of rule 11, clause (b) of sub rule (2) of rule 14, and sub rule (2) of rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 ( '1957 Rules ' for short), which order was saved by rule 34 of the 1965 Rules and, therefore, the Jt.
C.C.I.E. was both the appointing and disciplinary authority including the authority competent to remove the appellant from service and was accordingly competent to accord sanction under section 6(1)(c) of the Act.
Rule 11(2) of 1957 Rules provides that all appointments to Central Civil Posts, classes II, III and IV, included in the General Central Service shall be made by the authorities specified in that behalf by a general or special order of the President, or, where no such order has been made, by the authorities specified in the Schedule appended to the Rules.
Similarly, rule 14(1) provides that the President may impose any of the penalties including one of removal or dismissal from service as envisaged by rule 13 on any Government servant.
Sub rule (2) of rule 14 provides that without prejudice to the provisions of sub rule (1), any of the penalties specified in rule 1 may be imposed under sub clause (b) in respect of person appointed to a Central Civil post included in the General Central Services by the authority specified in this behalf by a general or special order of the President or where no such order has been made by the appointing authority or the authority specified in the Schedule in this behalf.
The entry at p. 38 provides that the appointing and disciplinary authority in respect of posts in non Secretariat offices other than posts in respect of which specific provision has been made by a general or special order 354 of the President, the head of office would be both the appointing and the removing authority.
Now, undoubtedly in respect of the office of the C.C.I.E., the C.C.I.E. would be the head of office.
The office of the C.C.I.E. is a non Secretariat office.
May be, the administrative department in respect of this office would be the Ministry of Foreign Trade and Supply.
But C.C.I.E. is a separate office with its own establishment and undoubtedly head of office would be the C.C.I.E.
The President in exercise of the power conferred by sub rule (2) of rule 11 and clause (b) of sub Rule (2) of rule 14 of the 1957 Rules has made a special order as contemplated by rule 11(2) and rule 14(2)(b) as under: "S.R.O. 631 In exercise of the powers conferred by sub rule (2) of rule 11, clause (b) of sub rule (2) of rule 14 and sub rule (1) of rule 23 of the Central Civil Services Classification, Control and Appeal) Rules, 1957, The President hereby directs that (1) in respect of the posts in the General Central Service, Class II specified in column 1 of Part I of the Schedule to this order, the authority specified in column 2 shall be the Appointing Authority and the authority specified in column 3 shall be the Disciplinary Authority in regard to the penalties specified in column 4, (2) in respect of the posts in the General Central Service.
Class III and the General Central Service, Class II specified in column 1 of Parts II and III of the said Schedule, the authority specified in column 2 shall be the Appointing Authority ! and the authority specified in column 3 and 5 shall be the Disciplinary Authority and Appellate Authority respectively in regard to the penalties specified in column 4".
A comprehensive Schedule is annexed to this order. 'The relevant entry is as under: Description of Post Appointing Authority competent Appellate authority to impose penalties authority penalties which it may impose (with reference to item numbers in rule 13) Authority Penalties 1 2 3 4 5 Organisation of the Chief Controller of Imports and Exports All posts in Headquarters office Joint Chief Joint Chief All Chief Controller of Controller ofController of Imports & Imports & Imports & Exports Exports Exports 355 The entries in the Schedule appended to 1957 Rules will be effective and operative subject of course to any general or special order made by the President in this behalf.
It was, however, contended that by rule 34 of 1965 Rules, 1957 Rules were repealed and, therefore, the order issued by the President in exercise of the powers conferred by sub rule (2) of rule 11 and various other rules bearing on the point would stand repealed and the order of the President would not be effective unless a similar order is issued by the President under the corresponding rule 12 of 1965 Rules.
Rule 12(1) and (2) of 1965 Rules is in pari materia with rule 14 of 1957 Rules.
Rule 12 of 1965 Rules confers power on the President to impose any of the penalties specified in rule 11 on any Government servant.
Sub rule (2)(b) provides that any person appointed to a Central Civil Post included in the General Central Service by the authority specified in this behalf by a general or special order of the President or where no such order Has been issued, by the appointing authority specified in the Schedule in this behalf, may impose any of the penalties specified in rule 11 which includes the penalty or removal from service.
Therefore, the President has the power to issue any general or special order to confer power to impose penalties as specified in rule II on any authority other than the one specified in the Schedule in this behalf.
Now, if the order issued by the President, S.R.O. 631 under corresponding rule l l and the relevant rules bearing on the subject of 1957 Rules is not shown to be inconsistent with any of the Rules included in 1965 Rules.
obviously such order would be saved Tender rule 34.
No inconsistency was shown to us as contemplated by rule 34.
Therefore, indisputably the order issued by the President, S.R.O. 631 along with the Schedule would be saved.
Once S.R.O. 631 is saved, the relevant entry hereinabove quoted in respect of the organisation of C.C.I.E. would be saved.
Accordingly the entry in the order issued by the President would supplant the corresponding entry in 1965 Rules and would have to be substituted for the entries in the relevant item in the Schedule.
The necessary consequence would be that in the case of the organisation of the C.C.I.E. for all posts in Headquarters office, Jt.
C.C.I.E. would be both the appointing and the disciplinary authority having the power to remove from service such persons belonging to Class III services.
Now, the appellant was indisputably holding a post in Class III service in the Headquarters office of the organisation of C.C.I.E.
He was at the relevant time holding, the post of Investigator which was admittedly a Civil post in Class III service in the office of C.C.I.E.
Indisputably, therefore, Jt.
C.C.I.E. would be both the appointing and disciplinary authority with power to remove him from service.
Therefore, Jt.
C.C.I.E. would be competent to accord sanction as envisaged by section 6(1)(c) of the Act.
Sanction 356 in this case having been granted by the Jt.
C.C.I.E., it was valid.
There is thus no substance in the contention of Mr. Lal.
Mr. Lal in this connection drew our attention to a decision in R. J. Singh Ahluwalia vs The State of Delhi(1) The appellant in that case was at the relevant time working as Assistant in Co ordination III of D.G.T.D. at Udyog Bhavan, New Delhi.
His contention was that sanction accorded by Shri K. Rajaram, Deputy Secretary to Government of India in the Ministry of Industrial Development and Company Affairs (Department of Industrial Development) was not valid and that he could only have been prosecuted under a sanction that may be accorded by the Home Ministry.
In respect of this contention it was conceded on behalf of the State that in the absence of such sanction the prosecution must fail.
The judgment proceeds on concession and not on any analysis or examination of the relevant provisions.
Therefore it in no way helps the appellant in this case.
This being the only point that could be raised in this appeal by limited leave and such contention being without merit, the appeal fails.
and is dismissed.
As the appellant is dead there is no question of his surrendering to Bail.
S.R. Appeal dismissed.
(1) A.I.R. 1971 S.C. 1552.
[/INST]^ HELD: 1. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when motion four transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or the like mini grievances.
Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment is necessitous, if the Court is to exercise its power of transfer.
This is the cardinal principle although the circumstances may be myriad and vary from case to case.
courts must test the petitioner 's grounds on this touch stone bearing in mind the rule that normally the complainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried.
Even so, the process of justice should not harass the parties and from that angle the Court may weigh the circumstances.
[380F H] 2.
The meat of the matter, in a case of defamation is something different than the common ground usually urged like the avoidance of substantial prejudice to a party or witnesses on account of logistics or like factors, especially when an alternative venue will not seriously handicap the complainant and will mitigate the serious difficulties of the accused.
The main witnesses are those who speak to having read the offending matter and other relevant circumstances flowing therefrom.
[381A B] In this case, the witnesses belong to Bombay and the suggestion that Delhi readers may be substitute witnesses and the complainant may consent herself with examining such persons is too presumptuous for serious consideration.
[381 C] 3.
The sophisticated processes of a criminal trial certainly require competent legal service to present a party 's case.
If an accused person, for any particular reason, is virtually deprived of this facility, an essential aid to fair trial fails.
If in a certain Court the whole Bar, for reasons of hostility or otherwise refuses to defend an accused person an extraordinary situation difficult to imagine, having regard to the ethics of the profession it may well be put forward as a ground which merits the attention of the Supreme Court.
Glib allegation like the services of an efficient advocate may not be easy to procure involves a reflection on the members of the Bar in Bombay and, therefore, is cannot be easily accepted without incontestible testimony in that behalf which is absent in this case.
apart from the ipse dixit of the party; Popular frenzy or official wrath shall not deter a member of the Bar from 379 offering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard.
[381C E] 4.
It is true that a detached atmosphere of a fair and impartial judicial trial is a must.
The tendency of toughs and street roughs to violate the serenity of Court is obstructive of the course of justice and must surely be stamped out.
Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily.
It causes disquiet and concern to a Court of justice if a person seeking justice is unable to appear present one 's case, bring one 's witnesses or adduce evidence.
Indeed, it is the duty of the Court to assure propitious conditions which conduce to comparative tranquility at the trial.
Turbulent conditions putting the accused 's life in danger or creating chaos inside the Court hall may jettison public justice.
If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary.
Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides land polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer.
[381 H, 382A C] In the instant case, none of the allegations made by the Petitioner.
read in the pragmatic light of the counter averments of the respondent and understood realistically makes the contention credible that a fair trial is impossible.
[383A B] G. X. Francis vs Banke Bihari Singh, A.I.R. 1958 SC 809 and 810; referred to.
Observation : The frequency of mobbing manouvres in Court precincts is a bad omen for social justice in its wider connotation.
Mob action may throw out of the gear the wheels of the judicial process.
Engineered fury may paralyse a party 's ability to present his case or participate in the trial.
If the justice system grinds to a halt through physical manouvres or sound and fury of the senseless populace, the rule of law runs aground.
Even the most hated human anethema has a right to be heard without the rage of ruffians or huff of toughs being turned against him to unnerve him as party or witness or advocate.
Physical violence to a party, actual or imminent, is reprehensible when he seeks justice before a tribunal.
Manageable solutions must not sweep the Supreme Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade this Court to shift the venue.
It depends.
[383D F] Therefore (a) the trial Court should readily consider the liberal exercise of its power to grant for the accused exemption from personal appearance save on crucial occasions.
[383G] (b) Where tranquil Court justice is a casualty, the collapse of an constitutional order is an inevitability.
The Magistrate is the master 380 of the orderly conduct of court proceedings and his authority shall not hang limp if his business is stalled by brow beating.
It is his duty to clear the Court of confusion, yelling and nerve racking gestures which mar the serious tone of judicial heaving.
The officials whose duty is to keep the public peace shall, on requisition, be at the command of the Court to help it run its process smoothly.
When the situation gets out of hand the remedy of transfer surgery may be prescribed Every fleeting rumpus should not lead to a removal of the ease as it may prove to be a frequent surrender of justice to commotion.
The Magistrate shall take measures to enforce conditions where the Court functions free and fair and agitational our muscle tactics yield no dividends.
[384A C]
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<s>[INST] Summarize the judgementivil Appeal No. 55A of 1987.
From the Judgment and Order dated 8.10.
1985 of the Allahabad High Court in Civil Misc.
No. 2278 of 1981.
S.N. Kacker, R.N. Sharma, J.K Jain and N.N. Sharma for the Appellant.
Gopal Singh and L.R. Singh for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
The question failing for consideration in this appeal by special leave is whether the High Court has erred in law in quashing the order of eviction passed against the respondent by the Judge, Small Cause Court as confirmed by the Additional District Judge and remitting the suit to the trial court for fresh consideration in the event of the trial court allowing an application by the appellant under Order I Rule 10 Civil Procedure Code for correcting the name of the plaintiff in the plaint.
The background of events to this Appeal may briefly be stated.
The appellant Bal Niketan Nursery School is a recog nised institution under the U.P. Basic Education Act, 1972, and is run and managed by a Society, "Smt.
Chandramukhi Ram Saran Shiksha Samiti", registered under the Societies Regis tration Act.
Dr. Om Prakash is the Manager of the appellant school and also the Secretary of the registered Society mentioned above.
On 10.3.1977 the Society purchased a plot of the land adjoining the school together with four super structures (Khaprails) standing thereon in the name of the appellant school through its Manager Om Prakash Gupta.
The super structures were in 514 the occupation of four tenants.
The entire rental income derived from the tenants is being utilised for the purpose of running the school.
Under the U.P. Urban Building Regula tion of Letting, Rent and Eviction Act, 1972 (for short the Rent Act) the provisions of the Act would not apply to a property owned by a recognised educational institution if the whole of the income from the property is utilised for the purposes of the institution.
Section 2(1)(b) which provides for the exemption is in the following terms: "Nothing in this Act shall apply to any building belonging to or vested in a recognised institution, the whole of the income from which is utilised for the purpose of such institution.
" As the appellant was in dire need of additional area for the growing needs of the school and as the property acquired by the school attracted the 'Exemption Clause ' in the Rent Act, the Manager of the school issued notices of termination of tenancy to the tenants on 30.5.
1977 under Section 106 of the Transfer of Property Act and demanded surrender of possession.
As the tenants failed to surrender possession, the appellant filed separate suits against the four tenants for ejectment and payment of arrears of rent.
The suits were filed in the name of the appellant school through its Manag er Dr. Om Prakash.
The Cause Title of the plaintiff in the plaint was given as under: "BaI Niketan Nursery School, Near Ganj Gurhatti, Moradabad through Dr. Om Prakash, Manager of the School.
" All the four tenants including the respondent herein raised only two defences in the suit, namely, that the appellant school is not a recognised educational institution so as to be entitled to the benefit of Section 2(1)(b) of the Rent Act and secondly, that the notice of termination of tenancy was not a valid notice because it had not been issued by an institution having juristic status.
The Small Cause Court consolidated all the four suits and held a joint trial and rejected both the contentions of the tenants and decreed the suits in favour of the school.
The tenants preferred revisions against the judgment to the District Judge and the learned Judge confirmed the judgment and decree of the Small Cause Court and dismissed all the revisions.
515 Thereafter the tenants filed writ petitions under Arti cles 226/227 of the Constitution before the High Court ,of Allahabad.
Before the High Court it was contended for the first time that the appellant school was not a juristic person and was not, therefore, entitled to file the suits through its Manager and as such the judgments of the Small Cause Court and the District Judge were ineffective and the decrees unenforceable.
The counter argument of the school was that as a recognised institution under the U.P. Basic Education Act, 1972 it has juristic status and furthermore it is the registered owner of the suit property, having obtained the sale deed in its own name and over and above all these the suit had been instituted by Dr. Om Prakash who was not only the Manager of the school but also the Secre tary of the Registered Society and as such, the suits were fully maintainable under law and consequently the judgments and decrees of the Small Cause Court and the District Judge were perfectly valid and enforceable.
Besides putting forth such contentions, the appellant school, by way of abundant caution also filed a petition under Order 1 Rule 10 Civil Procedure Code for amending the plaint by correcting the name of the plaintiff into Smt.
Chandramukhi Ram Saran Shiksha Samiti by Secretary Om Prakash in place of the name of the Bal Niketan Nursery School by Manager Dr. Om Prakash.
The High Court declined to uphold the contentions of the appellant school as in its view Clause (14) of the Constitu tion of the Registered Society contained a specific provi sion to the following effect.
"All the legal proceedings by the Society and against the Society will be done either by the Manager or by the Secretary or by a person authorised by them" and as such, the appellant school was not a juristic person and only the registered society.had the authority and competence to file the suits.
The High Court, therefore, held that the suits filed by the appellant school were not maintainable and consequently the judgments and decrees passed by the Small Cause Court and the District Judge were liable to the set aside and accordingly quashed them in three suits alone since the 4th suit (SCC Case No. 259/1977) had been compromised after the filing of the Writ Petition.
In so far as the application under Order 1 Rule 10 is con cerned, the High Court observed that the proper course for the appellant school was to move the Small Cause Court for getting the description of the plaintiff corrected and then pursue the proceedings for eviction.
The High Court also gave directions to the Small Cause Court as to how the suits were to be dealt with after amendment of the plaint in the following terms: 516 "It is made clear that in case the Judge Small Cause Court exercises the powers under Order 1 Rule 10, C.P.C. by correcting the description of the plaintiff, i.e. by getting the juristic person the Society substituted as plaintiff in the suit the defendant would be entitled to file additional written statement and the parties shall be afforded opportunity to lead fresh evidence in the case.
" Aggrieved by the judgment of the High Court the appel lant school has preferred this appeal by special leave.
Mr. Kacker, learned counsel for the appellant advanced five contentions set out below to impugn the judgment of the High Court.
The contentions are as follows: (1) The appellant school being a recognised institution under the U.P. Basic Education Act, 1972 is a legal entity and is, therefore, entitled to file the suits in its own name.
(2) Besides, the suit property has been purchased in the name of the appellant school and as the owner of the property the appellant is by itself entitled under law to file suits for seeking ejectment of the tenants.
(3) Consequent upon the purchase of the land and super structures and the vesting of possession in it, the appellant became the landlord of the tenants and the entire rental income is being used for running the school.
Therefore, in its capacity as the landlord of the tenants the appellant school is entitled to file the suits for ejectment notwithstanding clause 14 of the Constitution of the Registered Society.
(4) Even if it is viewed that the Registered Society is alone entitled to file the suit Dr. Om Prakash who is competent to file the suit on behalf of the Registered Society has filed the suits on behalf of the school and as such the Society is fully represented by Dr. Om Prakash and thereby Clause (14) of the Constitution of the Soceity stands satisfied.
(5) Even if a hyper technical view is to prevail requiring the suits to be filed only in the name of the Registered Society through its Secretary/Manager, the High Court should have allowed the petition under Order 1 Rule 10 C.P.C. and disposed of the Writ Petitions on merits instead of quashing the concurrent findings of 517 the courts below and remitting the suits to the Small Cause Court for fresh disposal after dealing with the petition under Order 1 Rule 10 C.P.C. Learned counsel for the respondent refuted the conten tions of Mr. Kacker and strenuously argued that the appel lant is not a recognised school but even if it is treated as a recognised institution under the U.P. Basic Education Act and even if the sale deed pertaining to the land and super structures has been obtained in the name of the school, it is only the Registered Society which can lawfully institute suits on behalf of the school or defend actions against it and that Clause (14) of the Constitution of the Society has overriding effect, and hence the suits filed by the appel lant school are not maintainable.
Having given our careful consideration to the arguments of the learned counsel and the view taken by the High Court we are of the opinion that the High Court was in error in sustaining the belated objection taken by the tenants re garding the competence of the appellant to file the suits and quashing the decrees for eviction passed against the tenants and remanding the suits to the Small Cause Court for fresh disposal after first considering whether the suits had been instituted in the name of the wrong plaintiff due to a bona fide mistake and whether the mistake calls for rectifi cation by allowing the petition filed under Order 1 Rule 10 C.P.C.
The reasons which have prompted us to come to this conclusion are manifold and may be enunciated in the follow ing paragraphs.
Under the U.P. Basic Education Act, the appellant school has been granted recognition as a recognised institution and by reason of such recognition the school is conferred cer tain rights and obliged to perform certain duties.
One of the rights flowing from the recognition granted to the school is an exemption from the provisions of the Rent Act.
Consequently, the appellant school has acquired rights by reason of the statutory recognition given to it under the U.P. Basic Education Act and to that extent the appellant school stands clothed with legal status.
It is not, there fore, a non entity in the eye of law.
Viewed from that perspective the appellant is entitled to file the suits through its Manager to seek the eviction of the tenants occupying the superstructures.
Of course, the learned coun sel for the respondent tried to contend that certain pro ceedings have been initiated for impugning the recognition granted to the appellant school under the U.P. Basic Educa tion Act and as such the appellant 's status as a recognised institution cannot be taken for granted.
We cannot counte nance this argument 518 because any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed.
Furthermore, the respondent has not produced any material to show that the recognition granted to the school has been subsequently withdrawn.
Secondly, apart from the legal status acquired by the school as a recognised institution, it is admittedly the registered owner of the suit property even though the pur chase price may have been provided by the society.
It is not in dispute that the sale deed pertaining to the land and the super structures has been obtained in the name of the school.
Even as a benami owner of the property, the appel lant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do not conflict with the rights of the society.
As a corollary to this proposition it follows that the appellant constitutes the landlord of the tenants after the property was purchased in its name and rents from the tenants became to be collect ed.
Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellant 's right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed.
Even if we are to close our eyes to the right of the appellant to file suits against the tenants in its capacity as a recognised institution or as the ostensible owner of the property or as the landlord of the tenants and are to judge the status of the appellant solely with reference to Clause (14) of the Constitution of the Society it may be noticed that Dr. Om Prakash is not only the Manager of the School but also the Secretary of the Registered Society.
The suits against the tenants have admittedly been filed by Dr. Om Prakash and even as per Clause (14) of the Constitution of the Society he is competent to file suits on behalf of the Society.
The school as well as the Registered Society, being institutions, they can file suits or defend suits only through a competent office bearer managing the affairs of the school or the Registered Society.
Inasmuch as the suits have been instituted by Dr. Om Prakash albeit as Manager of the school he has not ceased to be the Secretary of the Society and it can, therefore, will be taken that the suits have not been instituted by an incompetent person who is not empowered under the Constitution of the Society to file suits on behalf of the Society.
There is, therefore, no merit in the belated objection raised by the tenants that the suits are not maintainable in view of Clause (14) of the Constitution of the Society.
The suits, even if not insti tuted in the name of the Registered Society, are neverthe less competent actions 519 because they have been filed by Dr. Om Prakash who is compe tent to file suits on behalf of the Society also for recov ering possession of the leased property to the school.
The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have not been instituted in the name of the proper person viz. the Society, the High Court should have seen that Order 1 Rule 10 has been expressly provided in the Civil Procedure Code to meet with such situations so that the rendering of justice is not hampered.
The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the court may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide mistake and that is necessary for the determina tion of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.
The scope and effect of Order 1 Rule 10 has been considered in numerous cases and there is a plethora of decisions laying down the ratio that if the court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice.
The courts have gone so far as to hold that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of jus tice.
We may only refer to a few decisions in this behalf.
In Hughes vs The Pump House Hotel Company Limited (No. 2), [1902] 2 Kings Bench 485) a dispute was raised regarding the competence of the plaintiff to file a suit because doubts were cast as to whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge.
Thereupon an applica tion was made under Order XVI Rule 2 (corresponding to Order 1 Rule 10 CPC) for substitution of another person as plain tiff.
The application was allowed and that was upheld by the Court of Appeal and it was pointed out that the fact that the original plaintiff had no cause of action would not take away the jurisdiction of the court to order the substitution of another person as plaintiff.
In Krishna Bai vs The Collector and Government Agent, Tanjore & Others, (ILR 30 Madras 419) when it was found that a suit for ejectment of a defendant had been brought by the Collector and 520 Government Agent due to a bona fide mistake instead of the beneficiaries of the estate, the court allowed an applica tion for substitution of the correct plaintiff and it was further held that the fact that the Collector had no right to institute the suit would not stand in the way of the court ordering the substitution of the correct plaintiff.
In Sitla Bux Singh vs Mahabir Prasad, (AIR 1936 Oudh 275) it was held that where a person prohibited from dealing in actionable claim under Section 136 Transfer of Property Act obtained an assignment of a bond through a bona fide mistake and instituted a suit on the basis of the same, the provisions of Order 1 Rule 10 would apply and the assignor can be substituted in place of the assignee as plaintiff and allowed to continue the suit.
In Dinanath Kumar vs Nishi Kanta Kumar and Others, (A.I.R. 1952 Calcutta 102) the court allowed an application under Order 1 Rule 10 CPC and permitted a person who claimed that he was the real owner of the property and the original plaintiff was only a benamidar to be added as plaintiff in order to avoid multiplicity of proceedings and that he was a necessary party to the proceedings.
In Laxmikumar Srinivas Das vs Krishnaram Baldev Bank, Lashkar and another, (A.I.R. 1954 M.B. 156) it was held that the words "where a suit has been instituted in the name of the wrong person as plaintiff" must be construed to include those suits which the instituted by persons who had no right to do so and that the fact that the person instituting the suit had no cause of action would not take away the court 's jurisdiction to order substitution of another as plaintiff.
In Karri Somalu vs Thimmalapalli Venkataswamy and oth ers, it was held that the expression "wrong person" in Order 1 Rule 10 cannot be confined merely to a person wrongly described but would also extend to include a person whose name ought not to have figures as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do not suffer.
In Udit Narain Singh Malpaharia vs Additional Member Board of Revenue, Bihar and another; , it was held that in proceedings for a writ of certiorari it is not only the Tribunal or Authority whose order is sought to be quashed but also the parties in whose favour the said order is issued who are necessary parties and 521 that it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party.
In Murari Mohan Deo vs Secretary to Government of India, ; the dismissal of a petition under Article 226 of the Constitution by the Judicial Commissioner was challenged by the appellant therein.
The Judicial Commis sioner found that the appellant who was a forester in the employment of Tripura Government had been wrongly removed from service by an order of compulsory retirement but never theless refused to grant relief to the appellant because he had failed to implead the Government of India which was a necessary party to the proceedings.
This Court disapproved the dismissal of the writ petition on the technical ground and observed as follows: "Respondent 1 is shown to be the Secretary to the Government of India, Ministry of Home Affairs.
If there was technical error in the draftsmanship of the petition by a lawyer, a Forester a Class IV low grade servant should not have been made to suffer.
An oral request to correct the description of the first respondent would have satisfied the procedural requirement.
By raising and accepting such a contention, after a lapse of six years, the law is brought into ridicule.
The court could have conveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard.
The contention is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief Commis sioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers.
Therefore, not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence." Having regard to this settled position of law the High Court ought not to have sustained the objection raised by the tenants regarding the competency of the appellant to file the suits and quashed the orders of eviction concur rently passed by the Small Cause Court and 522 the Appellate Judge and remitted the suits for fresh consid eration with directions to consider the merits of the appli cation under Order 1 Rule 10 CPC but should have itself allowed the petition and added the Registered Society repre sented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits.
We, therefore, allow the appeal and remit the matter to the High Court for disposal on merits after allowing the application filed under Order 1 Rule 10 CPC by the appellant and ordering Smt.
Chandramukhi Ram Saran Shiksha Samiti through its Secretary Dr. Om Prakash to be also added as a plaintiff in the suits so as to make it clear that Dr. Om Prakash is representing not only the appellant 's school but also the Registered Society and dispose of the writ peti tions on merits after the formal amendments have been car ried out in the pleadings.
The parties are directed to bear their respective costs.
N.P.V. Appeal allowed.
[/INST]Section 2(1)(b) of the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 lays down that "nothing in this Act shall apply to any building belonging to or Vested in a recognised institution, the whole of the income from which is utilised for the purpose of such institution.
" The manager of the appellant school, a recognised insti tution under the U.P. Basic Education Act, 1972, run and managed by a Registered Society issued notice of termination of tenancy to the four tenants of the super structures (Khaprails) purchased by it, under Section 106 of the Trans fer of Property Act and demanded surrender of possession.
As the tenants failed to surrender possession, he filed sepa rate suits against the four tenants for ejectment and pay ment of arrears of rent.
The respondent and the other ten ants contended that the school was not a recognised educa tional institution entitled to the benefit of Section 2(1)(b) of the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 and that the notice of termina tion of tenancy was not valid.
The trial court rejected the contentions of the tenants and decreed the suits in favour of the school.
The revisional court confirmed the judgment and decree of the trial court and dismissed all the revision petitions.
511 In the writ petitions before the High Court, it was contended for the first time that the appellant school was not a juristic person and was not, therefore, entitled to file the suits through its manager.
It was submitted on behalf of the school that as a recognised institution under the U.P. Basic Education Act, 1972, it has juristic status, that the suit had been instituted by a person who was not only the manager of the school but also the secretary of the Registered Society and as such the suits were fully main tainable under law.
The appellant school, also filed a petition under Order 1 Rule 10 of Code of Civil Procedure for amending the plaint by correcting the name of the plain tiff into the name of the Society by its secretary in place of the name of the school by its manager.
The High Court held that in view of the specific provi sion in Clause (14) of the Constitution of the Registered Society to the effect that "all the legal proceedings by the Society and against the Society will be done either by the Manager or by the Secretary or by a person authorised by them", the appellant school was not a juristic person and only the Registered Society had the authority and competence to file the suits and that the suits filed by the appellant school were not maintainable.
It quashed the judgments and decrees passed by the courts below in three suits since the fourth suit had been compromised after the filing of the writ petition.
Insofar as the application under Order 1 Rule 10 was concerned the High Court held that the proper course for the appellant school was to move the trial court for getting the description of the appellant corrected and then pursue the proceedings for eviction.
Allowing the appeal by special leave, this Court, HELD: 1.
It is well settled that if the court is satis fied that a bona fide mistake has occurred in the filing of the suits in the name of the wrong person, then the court should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice.
The Courts have also held that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice.
[519D E] 2.1 By reason of recognition granted under U.P. Basic Education Act, 1972, the appellant school stands clothed with legal status, and is not a non entity in the eye of law.
[517G] 512 2.2 Any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed.
[518A] 2.3 The appellant constitutes the landlord of the ten ants after the property was purchased in its name and rents from the tenants came to be collected.
Once a jural rela tionship between landlord and tenants was formed between the appellant and the tenants by operation of law, the appel lant 's right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed.
[518C D] 2.4 Even if the status of the appellant is to be judged solely with reference to clause (14) of the Constitution of the Society, the person who filed the suits is not only the manager of the school but also the Secretary of the Society and even as per this clause he is competent to file suits on behalf of the Society.
The suits, even if not instituted in the name of Registered Society, are nevertheless competent actions because they have been filed by the Manager of the school who is competent to file suits on behalf of the Society also for recovering possession of the leased proper ty.
[518E H; 519A] 2.5 The appellant is, therefore, entitled to file the suits through its Manager to seek the eviction of the ten ants occupying the superstructure.
[517] 3.
The High Court was in error in sustaining the belated objection.
taken by the tenants regarding the competence of the appellant to file the suits and quashing the decrees for eviction passed against the tenants and remanding the suits to the trial court for fresh disposal, after first consider ing whether the suits had been instituted in the name of the wrong plaintiff due to a bona fide mistake and whether the mistake called for rectification by allowing the petition filed under Order 1 Rule 10 Code of Civil Procedure.
[517D E] 4.
Appeal allowed and the matter remitted to the High Court for disposal on merits after allowing the application filed under Order 1 Rule 10 Code of Civil Procedure by the appellant and ordering the Society through its Secretary to be also added as a plaintiff in the suits so as to make it clear that the person who has filed the suits is represent ing not only the appellant school but also the Registered Society.
[522A B] Hughes vs The Pump House Hotel Company Limited (No. 2), 513 [1902] 2 Kings Bench 485; Krishna Bai vs The Collector and Government Agent, Tanjore & Others, ILR 30 Madras 419; Sitla Bux Singh vs Mahabir Prasad, AIR 1936 Oudh 275; Dinanath Kumar vs Nishi Kanta Kumar and Others, A.I.R. 1952 Calcutta 102; Laxmi Kumar Srinivas Das vs Krishnaram Baldev Bank, Lashkar and another, A.I.R. 1954 M.B. 156; Karri Somalu vs Thimmalapalli Venkataswamy and others, ; Udit Narain Singh Malpaharia vs Additional Member Board of Revenue, Bihar and another; , and Murari Mohan Deb vs Secretary to Government of India, ; , referred to.
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<s>[INST] Summarize the judgementCivil Appeal Nos. 386, 529 & 532 of l98O. From the Judgment and order dated the 8th February, 198() of the Bombay High Court in Miscellaneous Petitions Nos.
1340 of 1977, 141 of 1977 and 1535 of 1976.
IN C.A. 386 OF 1980.
Dr. L.M. Singhvi, O.P. Rana, R.P. Vyas, M.N. Shroff and Abhishek Manu Singhvi for the Appellant.
K.K. Singhvi, Anil Gupta and Brij Bhushan, for Respondent.
lN CIVIL APPEAL No. 529 AND 532 OF l98O. Harish Salve, J.B. Dadachanji and D.N. Mishra for the Appellants in C.A. 529.
S.B. Bhasme, S.S. Khanduja and A.K. Galati for the Respondent in C.A. 529 of 1980.
Y.H. Mocdala B.P. Singh and Ranjit Kumar for the Respondent in CA.
532 of l98O.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
These appeals by the State of Maharashtra arise out of a judgment dated February 8, 1980 of the High Court of Bombay in a group of writ petitions which were filed under Article 226 of the Constitution.
By those writ petitions, the petitioners, who are respondents herein, challenged the validity of the Maharashtra Vacant Lands (Prohibition of Unauthorised occupation and Summary Eviction) Act, LXVl of 1975 and the legality of certain orders passed thereunder.
We will refer to the aforesaid 135 Act as "the Act".
The Act replaced an ordinance, bearing a A similar title, which was promulgated by the Governor of Maharashtra on November 11, 1975.
The Act was amended twice, first by Act No. XXXVII of 1976 and then by Act No. VII of 1977.
We will refer to these two these two Acts as 'the First Amendment Act ' and the 'Second Amendment Act '.
Several writ petitions were filed in the Bombay High Court to challenge the validity of the Act and the orders passed under it, the facts being broadly or the same pattern.
In order to understand the nature of the controversy in these appeals, it would be sufficient for our purpose to set out the facts in one of those petitions, namely Writ Petition No. 1340 of 1977.
The petitioners in that petition are the owners of a plot of land which is part of survey No. 154, Bandra, Greater Bombay admeasuring about 1100 square meters.
Though the petitioners had obtained possession of the plot in about .
1964 under an agreement of sale, they became owners thereof under an agreement of sale dated September 20, 1974.
The plot is assessed to non agricultural assessment and to property tax by the Bombay Municipal Corporation.
There are four chawls consisting of 31 one room tenements and a two storeyed building having four rooms on each floor on the plot.
These buildings were constructed by the petitioners between 1964 and 1970.
The two storeyed structure is in the occupation of the petitioners while the one room tenements have been let out by them.
These structures having been put up by the petitioners without the requisite permission, the Bombay Municipal Corporation called up them to demolish the same.
Thereupon, the owners of various plots of land comprised in Survery No. 154 formed an Association through, which they requested the Standing Committee of Bombay Municipal Corporation to regularise the constructions.
The Association was, however, informed that its request could not be granted because, the Government was considering a proposal for the acquisition of the land for the purpose of an industrial estate.
The Association then approached the Special Land Acquisition officer requesting that the land be released from acquisition.
The Land Acquisition officer informed the Association that Survey No 154 had been released from acquisition by a notification dated September 14, 1964.
It would appear from the contentions of the petitioners in the aforesaid writ petition that there are two main tarred roads, two tarred by lanes, two Municipal Primary Schools,one High School 136 and one Municipal dispensary in the area comprised in Plot No. 154.
Besides, the head office of the Central Consumer Co operative Society is also situated in one of the buildings situated on that plot of land.
The structure standing on the plot are alleged to be of a permanent nature.
In any event, it seems clear that they are provided with essential civic amenities like water and electricity.
The land belonging to the petitioners was declared by the Competent Authority as "Vacant Land" in exercise of the powers conferred upon it by section 2 (f) (b) of the Act.
The constitutionality of the Act was challenged by the respondents on the ground that it violates the fundamental rights conferred upon them by Articles 14, 19(1) (f) and 51 of the Constitution, that the Legislature lacked the legislative competence to pass the Act and that, the Act delegated excessive and uncanalised powers to the Executive to pass orders under its provisions.
The long title of the Act shows that it was passed in order to prohibit unauthorised occupation of vacant lands in urban areas in the State of Maharashtra and to provide for summary eviction of persons from such lands and for matters connected therewith.
According to the preamble of the Act, it had become necessary to take certain measures because the number of unauthorised occupants on vacant lands in urban areas was increasing rapidly and was causing grave danger to public health and sanitation and to the peaceful life of the inhabitants of these areas.
The Act was applicable to the entire State of Maharashtra but, in the first instance, it was brought into force in the Bombay Metropolitan Region on November 11, 1975 which was the date on which the ordinance was promulgated.
The Act confers power on the State Government to bring its provisions into force in such other urban areas as may be specified by a notification.
Later, the Act was brought into force in the urban areas of Solapur, Aurangabad, Nagpur and Kolhapur.
Sections 3 and 4 of the Act around which a large part of the argument revolves read thus: "3.
Prohibition against unauthorised Occupation of vacant land.
(1) No person shall, on or after the appointed date, occupy any vacant land or continue in occupation of any vacant land 137 in any urban area or erect any shelter or enclosure or other A structure on such land for the purposes of residence or otherwise without the express permission in writing of the Municipal commissioner in a corporation area, of the Chief officer in a municipal area and elsewhere, of the Collector, or except in accordance with any law for the time being in force in such urban area.
(2) No person shall on or after the appointed date abet any person in occupying any vacant land or in continuing to occupy such land in any urban area, or in erecting any shelter, enclosure or other structure on such land for the purposes of residence or otherwise in contravention of the provisions of sub section (1), or shall receive or collect from the occupier of such vacant land any amount whether by way of rent compensation or otherwise or shall in any manner whatsoever operate in relation to the unauthorised occupation of such vacant land.
Provided that, the State Government or any officer or authority specified by it in this behalf, shall have a right to receive or collect from the occupier of such vacant land such reasonable amount by way of penal charges as may be determined, by general or special order, by the State Government, till such time as the structure erected in contravention of the provisions of sub section (1) is removed from the land.
Payment of any such amount shall not create or confer on the unauthorised occupant any right of occupation of such land or structure.
Such amount if not paid on demand shall be recoverable as an arrear of land revenue.
The amount so collected shall, as far as possible, be utilised for purposes connected with the eviction, rehabilitation and improvement of conditions of unauthorised occupants of vacant lands." "4.
Power of Competent Authority to evict persons from unauthorised occupation of vacant lands.
(1) Notwithstanding anything contained in any law for time being in force, if the Competent Authority, either on application or suo motu, has reason to believe that any person is occupying any vacant land in an urban area in contravention of the provisions of section 3, it may by 138 order require such person to vacate the land forthwith or by certain time intimated to such person, and to remove all property therefrom, and if such person fails to comply with the order to vacate the land and to remove all property therefrom, he may be similarly evicted from such land by the Competent Authority, and any property which may be found thereon may be ordered by the Competent Authority to be forfeited to such authority as State Government may by general or special order specify and be removed from the vacant land.
For the purposes of eviction and removal of any such property, the Competent Authority may take, or cause to be taken such steps and use, or cause to be used, such force, and may take such assistance of the Police officers as the circumstance of the case may require.
Explanation For the avoidance of doubt, it is hereby declared that the power to take steps under this sub section includes the power to enter upon any land or other property whatsoever.
(2) The order of eviction of any person from any vacant land or forfeiture of any property therein or any property therefrom under sub section (1) shall be final and conclusive, and shall not be called in question in any Court.
(3) A person who is found to be on any vacant land belonging to, or vesting in, another person shall, unless the contrary is proved by him to the satisfaction of the Competent Authority, be deemed to be in occupation of such vacant land in contravention of the provisions of section 3." Sections 4 A, 4 B and 4 C were inserted into the Act by the Second Amendment Act.
Those sections read thus: "4 A. Permission for renovation of structure on vacant lands a temporary measure in certain circumstances.
(1) Notwithstanding anything contained in sections 3 and 4, where any occupier of a structure on a vacant land, in respect of which penal charges are collected from hi under section 3, or any occupier is by an order made under sub section (1) of section 4 required to vacate any vacant 139 land and to remove all property (including any structures) A therefrom, desires to renovate the structure at his risk and expense as a temporary measure, he may seek the previous permission of the Controller of Slums to do so.
On receipt of any application for such permission, if the Controller or Slums is, after such inquiry as he deems fit to make, satisfied that the structure is not fit for human habitation and the proposed renovation is necessary to make it so fit temporarily, he may, subject to such conditions as he may impose grant the required permission.
(2) Where any structure is renovated in accordance with the permission granted under sub section (1), the Competent Authority shall not evict the occupier of the structure so renovated.
till such time as the Controller of Slums may specify .
Provided that if, in the opinion of the Controller of Slums, occupier has at any time committed a breach of any of the conditions subject to which the permission was granted, he may cancel the permission granted and direct the Competent Authority to take necessary action against the occupier under section 4 forthwith for his eviction and forfeiture and removal of his property.
4 B. Recovery of dues of financing institutions, which render assistance for renovation of structures.
(1) Where an occupier of any structure referred to in section 4A has availed of an y financial assistance for renovation of the structure from any financing institution recognised by the State Government in this behalf; the Controller of Slums may, at the request of the financing institution, collect on behalf of that institution the amount of loan advanced to the occupier by that institution in such instalments and at such intervals, and remit the amount so collected to the institution in such manner, as may be directed by the State Government.
(2) If any such occupier fails to pay any amount due to the financing institution on or before the due date, the Controller of Slums may send to the Collector, a certificate under his hand indicating therein the amount which is due 140 to the financing institution.
Thereupon, the Collector or any officer authorised by him shall recover the amount due as an arrear of land revenue: Provided that no such certificate shall be sent to the Controller, unless the occupier has been served with a notice by the Controller of slums calling upon him to pay the amount due by a specified date.
4 C. Powers of controller of Slums under sections 4A and 4B exercisable by authorised officer also.
For the purposes of section 4A and section 4A, "Con troller of Slums" includes any officer subordinate to him, who is authorised by him in writing in that behalf.
" Section 5 of the Act prescribes the penalty for contravention of the provisions of Section 3(1) or for failure to comply with an order made by the Competent Authority under section 4 or for obstructing the Competent Authority in the exercise of any power conferred upon it by the Act.
The penalty extends to imprisonment for a period of three years and fine.
Section 8 of the Act provides that no court shall have jurisdiction to entertain any proceeding, civil or criminal, in respect of the eviction of any person from any vacant land under the Act or in respect of any order made or action taken by the Competent Authority in the exercise of the powers conferred by the Act or to grant any stay or injunction in respect of such order or action.
This section further provides if any suit or other proceeding in respect of the eviction of any person from any vacant land is pending on the appointed date in any court, it shall abate.
The expression "Vacant Land" is defined in section 2 (f) of the Act.
The original definition was replaced by the First Amendment Act after which the section reads as follows .
"2 (f) 'vacant land ', in relation to any urban area, means (a) all lands in such area, whether agricultural or non.
agricultural, which are vacant and are not built upon on the appointed date; 141 (b) all lands in such area on which any structure has been or is being constructed otherwise than in accordance with any law regulating the construction of such structure and which the Competent Authority may, from time to time, by an order in writing, specify and declare to be vacant lands by announcing by beat of drum or other suitable means on or in the vicinity of such lands, and the declaration so made shall be deemed to be notice to all those who are occupying such lands that all such lands shall be vacant lands for the purposes of this Act; and includes, in particular, all lands specified in the Schedule to this Act.
The State Government may, from time to time, by an order, published in the Official Gazette amend that Schedule by adding thereto any land or lands specified in that order or by modifying or transferring any entry in that Schedule.
" On December 3, 1971 a Proclamation of Emergency was issued by the President of India under Article 352 of the Constitution on the ground that a grave emergency existed whereby the security of India was threatened by external aggression.
Another proclamation of Emergency was issued under the same Article on June 25, 1975 on the ground that the security of India was threatened by internal disturbance.
On June 27, 1975, the President issued an order under Article 359 (1) suspending the right to move any Court for the enforcement of the fundamental rights conferred by Articles 14, 21, and 22 of the Constitution for the period during which the above two Proclamations of Emergency were in force.
On August 1, 1965, the Constitution (Thirty eighth Amendment) Act, 1977 was passed whereby, clause 1A was inserted in Article 359 with retrospective effect.
The ordinance which preceded the Act in the instant case was passed on November 11, 1975 while the Act was passed on December 24, 1975.
As stated earlier, the Act came into force in the Bombay Metropolitan Region with retrospective effect from November 11, 1975.
On January 8, 1975, the President of India issued another order under Article 359(1) of the Constitution suspending the right of any person to move any Court for the enforcement of any of the fundamental rights conferred by Article 19 of the Constitution for the period during which the said two proclamations of emergency 142 were in force.
The First Amendment Act was passed on August 3, 1976 while the Second Amendment Act was passed on January 25, 1977.
The Proclamation of Internal Emergency was revoked by the President of India on March 21, 1977 while the proclamation of External Emergency was revoked on March 27, 1977.
On April 30, 1979, the Constitution (Forty Fourth Amendment) Act, 1978 was passed.
By section 2 (a) (ii) of the said Act.
sub clause (f) of clause (i) of Article 19 was omitted from the Constitution and, by section 2(b), consequential amendments were made in clause (5, of Article 19.
By section 8 of the said Act, Article 31 was omitted from the Constitution.
By section 34, a new chapter, namely, Chapter IV, headed "Right to Property", was inserted in Part XII of the Constitution, containing Article 30O A.
As a result of these constitutional provisions, the Act would be void and would cease to have effect from March 27, 1977 if it infringes the fundamental rights conferred by Articles 14 and 19 of the Constitution.
If it infringed Article 31 (1) of the Constitution on the ground that the provisions of Article 19 (1) (f) were violated, the Act would be void and would cease to have effect from March 27, 1977.
If the State Legislature had no legislative competence to pass the Act or the Act infringed the provisions of clauses 2 or 3 of Article 31, the Act would be void from its inception.
Putting it briefly, the Act or any of its provisions would be void or would cease to have effect, as the case may be, from diverse dates depending upon the violation of the particular Article or Articles of the Constitution involved herein.
Since the statutory concept of vacant land ' as defined in Section 2 (f) of the Act permeates the entire Act and is, as it were, the quintessence of the Act, respondents concentrated their attention in the High Court on challenging the vires and legality of that definition.
They succeeded in that challenge for the wighty reasons given by the High Court, which we adopt, except with some minor variations.
Indeed, if the draftsman were to give to the framing of the Act even a part of the care and concern bestowed upon it by the High Court, though not at the same length, many an impediment in upholding the validity of the Act could have been cleared without much difficulty.
If we were to deal again with the manifold challenges made to the validity of the Act, we will be repeating, more 143 or less, what the High Court has said.
Therefore, we propose to dwell upon some of the fundamental objections to which the Act is open and some of the more serious infirmities from which its provisions suffer.
Coming first to the definition of 'vacant land ', Section 2 (f) as amended retrospectively by the first Amendment Act divides vacant lands into four categories: (1) lands which are in fact vacant, that is to say, not built upon; (2) lands on which structures have been or are being constructed otherwise than in accordance with any law regulating the construction of such structures and which the Competent Authority may specify and declare to be vacant lands by announcing by beat of drum or other suitable means; (3) lands specified in the Schedule to the Act; and (4) lands included in the Schedule by the State Government by an order amending the Schedule.
It is evident, despite some needless controversy upon that question in the High Court, that the expression 'land ' in Section 2 (f) of the Act means plots of land with defined boundaries which are generally recognised for revenue and survey purposes.
Section 2(f) (b) requires two conditions to be satisfied in order that a land can be described as a vacant land; Firstly, there has to be an unauthorised structure on the land and secondly, the Competent Authority has, by an order in writing, to specify and declare that land to be a vacant land.
The Act confers upon the Competent Authority the discretion to declare a land as a vacant land without laying down any guidelines to control that discretion.
The Competent Authority has the freedom to pick and choose lands on which there are unauthorised structures and declare some of them as vacant lands and leave other similarly situated untouched.
The second recital in the preamble to the Act on which reliance is placed by the State Government as affording a guideline to the Competent Authority for making a declaration that a certain land is a vacant land cannot serve that purpose.
That recital reads thus: "AND WHEREAS the number of unauthorised occupants on vacant lands in the urban areas in the State was rapidly increasing and was causing grave danger to the public health and sanitation and peaceful life of inhabitants of such areas.
" The Act does not contain any provision whatsoever which is 144 directed at ensuring the public health and sanitation or the peaceful life of the inhabitants of the concerned locality.
Indeed, nothing is farther removed from the true purpose and object of the Act than these considerations.
The last item in the Schedule to the Act includes all public roads and highways in Greater Bombay.
These, surely, cannot be regarded as constituting a grave danger to public health, sanitation or peaceful life of the citizens.
The circumstances which led to the passing of the Act are mentioned in the Statement of objects and Reasons to the Ordinance which are as follows; "It was found that the vacant lands in Greater Bombay and similar other urban areas were rapidly being unauthorisedly occupied by squatters and traffickers in lands.
The different laws and various authorities constituted under these laws, as well as different procedures laid down by these laws, did not permit immediate demolition of unauthorised huts or prevent the growth of unauthorised structures.
The lengthy procedure laid in the laws also prevented the authorities from taking immediate preventive action.
A law which would simplify the procedure and reduce possibilities of litigation, and adequately arm the law enforcing authorities such as Municipal officers, Police officers, Revenue officers and other officers of Government Department to demolish the unauthorised huts and houses was found in mediately necessary.
Further, it was also necessary to take drastic penal action against those who construct unauthorised hutments or colonies of temporary sheds, and traffic in lands and such structures or recover rents by letting out such structures.
" It is clear from this Statement that the evil which was sought to be remedied by the ordinance, which was later replaced by the Act, was not danger to public health or sanitation or to the peaceful life of the inhabitants of the Metropolis of Bombay.
The danger posed by the construction of unauthorised structures is the evil which the Act seeks to remedy.
The Act does not also provide for any safeguard against the arbitrary exercise of the discretion conferred upon the Competent Authority to declare a land as a vacant land.
It is true that abuse of 145 power is not to be assumed lightly but, experience belies the expectation that discretionary powers are always exercised fairly and objectively.
In fact, instances of discriminatory declarations made by the Competent Authority were cited in the High Court to which according to the High Court, no satisfactory answer was given in, the return filed on behalf of the State Government.
The Act does not prescribe any procedure which the Competent Authority is required to adopt before declaring a land as a vacant land.
There is no provision in the Act requiring the Competent Authority to observe even the rudimentary norms of natural justice before making the statutory declaration.
The Authority is not obliged to give notice to anyone and it need not hear any person who is likely to be affected by the declaration.
The State Government, too, is under no obligation to follow any set procedure prior to amending the Schedule so as to include new lands therein.
The power conferred by Sections 3(1) and 4(1) of the Act is similarly uncontrolled and arbitrary.
Indeed, the hall mark of this ill conceived legislation is; "No notice and no hearing".
There can be cases, though their category ought not be enlarged by Courts, wherein failure to afford to hearing before an adverse decision is rendered may not necessarily vitiate that decision.
But, in cases like those before us, a hearing preceding a decision is of the essence of the matter.
It is notorious as the Statement of objects and Reasons of the ordinance shows, that, in Bombay, open lands have been trespassed upon by professional slumlords who have become a law into themselves.
Perhaps, they rise to the occasion by pandering to political needs and pressures but that is beside the point.
Massive encroachments on private properties have led to the virtual deprivation of the title of rightful owners of these properties.
The Act penalises such owner for no fault of theirs and, that too, without giving them an opportunity to be heard.
The fact that the power to make the requisite declaration under the Act is vested in officers of the higher echelons makes no difference to this position and is not a palliative to the prejudice which is inherent in the situation.
The judgment of the High Court cites a glaring instance of the arbitrary and undesirable consequences which follow upon orders which are passed unilaterally, that is, without hearing the parties affected by these orders.
One of the petitioners before the High Court was the owner of a hotel called Nakesh Punjab Hotel.
He held various licences which authorised him to run the hotel.
There was a dispute between him and the Revenue Authorities as to the 146 increase in the quantum of assessment, whereupon he obtained an interim injunction from the City Civil Court, Bombay.
In the meanwhile, the Competent Authority issued a Declaration under Section 2(f)(b) of the Act declaring the plot of land on which the hotel stood as a vacant land.
Within a short time thereafter, the hotel was demolished.
It was urged on behalf of the State Government that the infirmity, if any, from which the Act suffered in its inception has been cured by the passing of the Maharashtra Vacant Lands (Prohibition of Unauthorised occupation and Summary Eviction) (Service of Notice) Rules, 1979.
By these Rules, before issuing any order under Section 2(f)(b) or under Section 4(1) of the Act, the Competent Authority is required to serve a written notice upon any person likely to be affected by such order, calling upon him to show cause within such period as may be specified in the notice why the pro posed order should not be issued.
The Competent Authority is further required to consider any objections submitted to it by any such person within the period specified in the notice.
Rule 3(2) provides for service of such notices.
We are unable to accept that the unconstitutionality of the Act is cured by the framing of the Rules made three and a half years after the Act was passed.
Besides, the Rules only provide for a notice to be given and objections to be considered before the passing of an order under sections 2(f)(b) and 4(1).
They do not make a similar provision before permission is granted or refused under section 3(1) of the Act.
But, what is of greater importance is that, even the Rules do not lay down any guidelines for the exercise of the discretion which is conferred upon the Competent Authority by section 2(f)(b) or section 4(1) of the Act.
Section 2(f)(b) suffers from yet another vice in that, it treats all persons alike irrespective of how they are situated in the matter of their involvement in the construction of unauthorised structures and their interest therein.
Classification requires division into classes which are marked by common characteristics.
Such division has to be founded upon a rational basis and it must be directed at subserving the purposes of the statute.
Section 2(f)(b) and the other cognate provisions of the Act make no distinction at all between owners of lands who have themselves constructed unauthorised structures and those others on whose lands unauthorised structures have been constructed by trespassers.
The latter class of owners who are silent spectators to the forcible and lawless deprivation of 147 their title to their property have been put by the Act on par with trespassers who, taking law into their own hand, defy not merely private owners but public authorities.
Section 2(f)(b), also, suffers from the infirmity of according equal treatment to unequals.
Take a simple example: A plot of land may be vacant in the true sense of the term, that is to say, wholly unbuilt upon.
Another plot of land may have a small structure built upon it in accordance with the Municipal rules and regulations.
The first plot of land attracts drastic provisions of the Act merely by reason of the fact that nothing has been built upon it at all, while the second plot of land is entirely outside the scope of the Act for the reason that some tiny structure is standing thereon.
a Such a classification betrays lack of rationale.
By the second part of the definition of 'vacant land ' in section 2(f) of the Act, vacant land "includes, in particular, all lands specified in the Schedule to the Act".
The Schedule includes various 'lands ' which are built upon, like the B.E.S.T. Depot (Entry 73), the Health Centre at Nawabwadi (Entry 75), the Pumping Station at Vallabhbhai Patel Nagar (Entry 82), the School in Mulund Village (Entry 130) and, last but not the least, all land occupied by public roads and highways in Greater Bombay (Entry 1555).
It is impossible to understand the scheme of the Schedule or to discover any rational basis behind it.
It is also difficult to understand as to why certain lands which are under acquisition for the purposes of the Maharashtra Housing Board and the Bombay Municipal Corporation have been included in the Schedule and other lands similarly situated have not been so included.
Some of the Entries in the Schedule show that unauthorised structures could not have been possibly constructed on the lands mentioned therein.
By and large, the Schedule is divorced from the true object of the Act.
The concluding part of section 2(f) of the Act confers power upon the State Government to amend the Schedule from time to time by an order published in the official Gazette.
This power includes, inter alia, the power to add 'any land or lands ' to the Schedule.
No criterion or standard is laid down in order to enable the State Government to determine objectively as to which lands can be added to the Schedule.
The power to add to the Schedule is in the nature of a legislative power which, in the very nature of things, cannot stipulate for service of notice to the persons affected by the amendment.
This power of amendment of the Schedule is 148 not even conditioned by the fact that the lands added to the Schedule must have unauthorised structures standing thereon.
The State Government is free to pick and choose any land and put it in the Schedule.
This kind of conferment of uncanalised discretion is strawn all over the Act.
Thus, each part of the definition of 'vacant land ' in section 2(f) of the Act is violative of the provisions of Articles 14 and 19(1)(f) of the Constitution.
Article 19(1)(f) has now lost its relevance after the passing of the Constitution (Forty fourth Amendment) Act, 1978 by which clause (f) was deleted.
But the Act had to satisfy the requirements of that clause so long as it was a part of the Constitution.
It may be relevant at this stage to consider as to what is the ultimate fate of lands which are declared as vacant lands under section 2(f).
Until the Competent Authority passes an order under section 4(1) calling upon an occupier to vacate a land, even a trespasser or an unauthorised occupier can continue to be in possession of the land.
If he is granted permission to occupy the land under section 3(1), he cannot be evicted at all, for the simple reason that the order of eviction under section 4(1) can be passed only if a person is in occupation of a land contrary to the provisions of section 3.
Even the eviction of a trespasser from the land can afford no solace to its rightful owner because, the Act does not contain any provision whereby the land can be returned to him after it is freed from unauthorised occupation.
If the owner himself has erected an unauthorised structure, the Act does not provide as to what is to happen to the land after he is evicted therefrom.
By the provisio to section 3(2) which was inserted by the First Amendment Act, power is conferred upon the State Government or, an authority specified in that behalf, to receive and collect from the occupiers of vacant lands a reasonable amount by way of penal charges as may be determined by the State Government Such penal charges can be recovered until such time as the structure erected on the land on contravention of section 3(1) of the Act is removed.
The Statement of objects and Reasons of the First Amendment Act shows that the provision for levying penalty was introduced into the Act in order that occupants of lands on which there were unauthorised structures and.
who are allowed to continue in possession of the structures, do not continue to occupy 149 those lands without payment of any amount at all to public authorities.
It appears that even after forfeiting the structures consequent upon the passing of an order under section 4(1), the State Government has been recovering compensation from unauthorised occupants.
It seems to us quite incongruous that while the true owner is prevented from taking legal proceedings to recover any rent or compensation from persons who had trespassed upon his land, the State Government can recover penal charges from the trespassers.
By the Second Amendment Act, a new section 4 A was inserted in the Act.
That section provides that if any occupier of a structure on a vacant land from whom penal charges are collected under section 3, or if any occupier who is required by an order made under section 4(1) to vacate any vacant land, desires to renovate the structure at his risk as a temporary measure, he may apply to the Controller of Slums for the requisite permission.
The Controller is empowered to grant the permission after making such inquiry as he deems fit, if he is satisfied that the structure is not fit for human habitation and the proposed renovation is necessary to make the structure temporarily fit.
Once such permission is granted and the structure is renovated, the Competent Authority is powerless to evict the occupier of the structure until such time as the Controller of Slums may specify.
By section 4 13, which was also inserted by the Second Amendment Act, financial assistance for renovating structures can be made available by financial institutions recognised by the State Government.
In cases where such financial assistance is availed of, the financial institutions can request the Controller of Slums to collect, on their behalf, the amounts of loans advanced to the occupiers.
The Statement of objects and Reasons of the Second Amendment Act shows that the Government had carried out substantial environment improvements on vacant lands and had sponsored a scheme for building semi permanent houses thereon.
They intended to give to the occupants of such structures security of tenure subject only to the condition of regular repayment by them of the loans given by the financial institutions.
The true owner of lands are totally ignored in this scheme of things, even if they are victims and not the authors of unauthorised constructions.
It was not disputed in the High Court, nor before us, that for a period of more than four years that the Act has been in force, not a single unauthorised and forcible occupier of a vacant land owned by a private person was evicted, nor was a single plot of land encroached upon restored to its rightful owner.
150 We are in agreement with the High Court that the Act does not violate the provisions of article 31(1) of the Constitution.
It does not provide for transfer of ownership of vacant lands to the State or to a corporation owned or controlled by the State; nor does it vest in the State the right of the owner or occupier of vacant lands to recover rent or compensation for use and occupation of such lands.
We are, however, unable to accept the view of the High Court that the Act amounts to a measure of requisition and is bad for the reason that it provides for requisition without payment of compensation.
It is straining the language of the Act to hold that it provides, directly or indirectly, for requisition of private property.
The Act does not transfer the right to possession of vacant lands to the State, its agents or its instrumentalities.
Therefore, the Act does not offend against the provisions of Article 31(2) of the Constitution.
Since that Article is not attracted, no question can arise of the invalidity of the Act on the ground mentioned in Article 31(S), namely, that the Act had not received the assent of the President.
In so far as the question of legislative competence is concerned we uphold the finding of the High Court to the extent that the State Legislature had the competence to pass the Act under Entries 18, 64 and 65 of List II.
Since the Act is, in any event, violative of Article 14 of the Constitution, it is unnecessary to consider the question whether, in so far as it violated Article 19 (l) (f), it revived on the deletion of that Article by the Constitution (Forty fourth Amendment) Act.
We express no opinion on the question whether the doctrine of 'eclipse ' applies both the pre Constitution and post Constitution laws or whether that doctrine applies to pre Constitution laws only.
For these reasons, which are substantially similar to the reasons given by the High Court, we affirm the judgment of the High Court and dismiss these appeals with costs.
We quantify the costs in each appeal at rupees two thousand.
We would like to point out before we close that the object of the state legislature in passing the Act was unquestionably laudable.
It is unfortunate that the legislation has traveled far beyond that object.
The State Government has failed in these proceedings not because the legislature lacks the legislative competence to pass the Act mainly because the provisions of the Act are discriminatory.
151 The Act was passed during the period of Emergency when some of A the safeguards available under Chapter 111 of the Constitution were suspended on the revocation of the Emergency, the Act ought to have been amended or, better still, a new legislation ought to have been introduced so as to comply with the provisions of the Constitution.
We trust that, in the light of our judgment and the judgment of the High Court, the State Legislature will introduce a carefully conceived legislation on the subject at an early date.
The slumlords, who have trespassed on public and private properties, must be evicted and expeditious steps taken to prevent them exploiting any further the helpless member of the community who are virtually at their mercy.
Not only have these defiant law breakers constructed unauthorised structures on private and public properties but, as stated in the objects and Reasons of the Act, they have been collecting extortionate rents from the tenants of such properties, Earlier the State Government acts the better.
M.L.A Appeals dismissed.
[/INST]The Maharashtra.
Vacant Lands (Prohibition of Unauthorised occupation and Summary Eviction) Act, LXVI of 1975 passed by the State of Maharashtra was amended twice first by Act No XXXVII of 1976 and later by Act No. VlI of 1977.
Section 2 (f) as amended retrospectively by the First Amendment Act divides "Vacant land" into four categories: (1) lands which are in fact vacant, that is to say, not built upon; (V lands on which structures have been or are being constructed otherwise than in accordance with any law regulating the construction of such structures and which the Competent Authority may specify and declare to be vacant lands by announcing by beat of drum or other suitable means; (3) lands specified in the Schedule to the Act, and (4) lands included in the Schedule by the State Government by an order amending the Schedule.
Section 3 provides that no person shall occupy or enact any shelter enclosure or other structure on such land for the purposes of residence or otherwise without the express permission of the Municipal Corporation and also prohibits any person to collect from the occupier of such vacant land any amount by way 130 of rent or compensation in relation to the unauthorised occupation of such vacant land while it empowers the government to collect or receive from the occupier of such vacant land such reasonable amount by way of penal charges as may be determined till such time as the structure erected in contravention of the provisions of s.3 is removed from the land.
Section 4 empowers the government to evict a person occupying any vacant land in an urban area in contravention of the provisions of section 3.
Section 4A deals with permission for renovation of structures on vacant lands as a temporary measure in certain circumstances.
Section 4B lays down mode of recovery of dues of financial institutions which render assistance for renovation of structures.
The respondents were owners of some plots of land in Bombay.
The plots were assessed to non agricultural assessment and to Property tax by the Bombay Municipal Corporation The respondents had constructed buildings of a Permanent nature on the plots and the same had been provided with essential civic amenities like water and electricity.
The appellants State Government & Municipal Corporation of Bombay called upon the respondents to demolish the buildings since they were constructed without the requisite permission of the Bombay Municipal Corporation.
The respondent 's request to regularize, the unauthorised construction was also rejected because the Government was considering a proposal for acquisition of the said land for the purpose of an industrial estate.
The respondents then approached the Special Land Acquisition officer requesting that the land be released from acquisition.
The Land Acquisition officer informed the respondents that the said plots of land had been released from acquisition by a notification dated September 14, 1964.
But, later on, the said plots of land were declared by the Competent Authority as "vacant land" in exercise of the powers conferred upon it by Section 2 (f) (b) of the Maharashtra Vacant Lands (Prohibition of Unauthorised occupation and Summary Eviction) Act LXVI of 1975.
The respondents challenged before the High Court the constitutional validity of the Act and the legality of orders passed thereunder The High Court declared the Act as violative of the provisions of the Constitution and allowed their writ petitions In the appeals to this Court, the appellants contended that the infirmity, if any, from which the Act suffered in its inception has been cured by the passing of the Maharashtra Vacant Lands (Prohibition of Unauthorised occupation and Summary Eviction) (Service of Notice) Rules, 1979 in as much as the affected person is given a notice before passing an order under section 2 (f) (b) or under section 4(1) of the Act and that the Competent Authority is further required to consider any objections submitted to it by the affected person.
On behalf of the respondents it was argued (1) that at the Act violates the fundamental rights conferred upon them by article 14.
19(1)(f) and 51 of the Constitution; (11) that the State Legislature lacked the Legislative competence to pass the Act and (III) that the Act delegated excessive and uncanalised powers to the Executive to pass orders.
131 Dismissing the appeals, ^ HELD: 1.1 It is evident that the expression 'land ' in Section 2 (f) of the Act means plots of land with defined boundaries which are generally recognized for revenue and survey purposes.
Section 2 (f) (b) requires two conditions to be satisfied in order that a land can be described as a vacant land; Firstly, there has to be an unauthorised structure on the land and secondly, the Competent Authority has, by an order in writing, to specify and declare that land to be a vacant land [143 D.E] 1.2 Section 2 (f) (b) suffers from the vice in that, it treats all persons alike irrespective of how they are situated in the matter of their involvement in the construction of unauthorised structures and their interest therein.
Classification requires division into classes which are marked by common characteristics.
Such division has to be founded upon a rational basis and it must be directing at subserving the purposes of the statue.
Section 2 (f) (b) and the other cognate provisions of the Act make no distinction at all between owners of the lands who have themselves constructed unauthorised structures and those others on whose lands unauthorised structures have been constructed by trespassers The latter class of owners who are silent spectators to the forcible and lawless deprivation of their title to their property have been put by the Act on par with trespassers who, taking law into their own hands, defy not merely private owners but public authorities.
[146 G H; 1 47 A] 1.3.
Section 2(f) (b), also, suffers from the infirmity of according equal treatment to unequals.
Take a simple example: A plot of land may be vacant in the true sense of the term, that is to say, wholly unbuilt upon.
Another, plot of land may have a small structure built upon it in accordance with the Municipal rules and regulations.
The first plot of land attracts drastic provisions of the Act merely by reason of the fact that nothing has been built upon it at all, while the second plot of land is entirely outside the scope of the Act for the reason that some tiny structure is standing thereon.
Such a classification betrays lack of rationale [147 B C] 2.1.
The Act confers upon the Competent Authority the discretion to declare a land as a vacant land without laying down any guidelines to control that discretion.
Competent Authority has the freedom to pick and choose lands on which there are unauthorised structures and declare some of them as vacant lands and leave other lands similarly situated untouched.
[143 E] 2.2.
The Act does not also provide for any safeguard against the arbitrary exercise of the discretion conferred upon the Competent Authority to declare a land as a vacant land.
It does not contain any provision whatsoever which is directed at ensuring the public health and sanitation or the peaceful life of the inhabitants of the concerned locality Indeed, nothing is farther removed from the true purpose and object of the Act than these considerations.
The last item in the Schedule to the A.t includes all public roads and highways in Greater Bombay.
These, surely, cannot be regarded as constituting a grave danger to public health, sanitation or peaceful life of the citizens.
It is clear from the Statement of objects and Reasons that 132 the evil which was sought to be remedied by the ordinance, which was later replaced by the Act, was not danger to public health or sanitation or to the peaceful life of the inhabitants of the Metropolis of Bombay, but, the danger posed by the construction of unauthorised structures, is the evil which the Act seeks to remedy.
[144 H; 143 H; 144 A B; G] 2.3.
The Act does not prescribe any procedure which the Competent Authority is required to adopt before declaring a land as vacant land.
There is no provision in the Act requiring the Competent Authority to observe even the rudimentary norms of natural justice before making the statutory declaration.
The Authority is not obliged to give notice to anyone and it need not hear any person who is likely to be affected by the declaration.
The State Government too, is under no obligation to follow any set procedure prior to amending the Schedule so as to include new lands therein.
The power conferred by Sections 3(1) and 4(1) of the Act is similarly uncontrolled and arbitrary.
[145 B Dl 2.4.
In the instant case, massive encroachments on private properties have led to the virtual deprivation of the title of rightful owners of those properties The Act penalises such owners for no fault of theirs and, that too, without giving them an opportunity to be heared.
The fact that the power to make the requisite declaration under the Act is vested in officers of the higher echelons makes no difference to this position and is not a palliative to the prejudice which is inherent in the situation.
[145 F G] 3.1.
It is impossible to understand the scheme of the Schedule to the Act or to discover any rational basis behind it ii difficult to understand as to why certain lands which are under acquisition for the purposes of the Maharashtra Housing Board and Bombay municipal Corporation have been included in the Schedule and other lands similarly situated have not been so included Some of the entries in the Schedule show that unauthorised structures could not have been possibly constructed on the lands mentioned therein By and large, the Schedule is divorced from the true object of the Act .
[147 E F] 3.2.
No criterion or standard is laid down in order to enable the State Government to determine objectively as to which lands can be added to the Schedule.
The power to add to the Schedule is in the nature or a legislative power which, in the very nature of things cannot stipulate for service of notice to the persons affected by the amendment.
This power of amendment of the Schedule is not even conditioned by the fact that the lands added to the Schedule must have unauthorised structures standing thereon.
The State a Government is free to pick and choose any land and put it in the Schedule This kind of conferment of uncanalised discretion is strawn all over the Act.
[147 G H; 148 A] 3.3.
It is therefore clear that each part of the definition of 'vacant land ' in section 2(f) of the Act is violative of the provisions of Articles 14 and 19 (1) (f) of the Constitution.
The Act had to satisfy the requirements of article 19 (1) (f) so long as it was a part of the Constitution.
[148 B C] 133 (4) It may be noted that until the Competent Authority passes an A order under section 4(l) calling upon an occupier to vacate a land, even a trespasser or an unauthorised occupier can continue to be in possession of the eland.
lf he is granted permission to occupy the land under section 3(1), he cannot be evicted at all, for the simple reason that the order of eviction under section 4(1) can be passed only if a person is in occupation of a land contrary to the provisions of section 3.
Even the eviction of a trespasser from the land can afford no solace to its rightful owner because, the Act doesn 't contain any provision whereby the land can be returned to him after it is freed from unauthorised occupational If the owner himself has erected an unauthorised structure, the Act does not provide as to what is to happen to the land after he is evicted therefrom [148 D F] (5) The Statement of objects and Reasons of the First Amendment Act shows that the provision for levying penalty was introduced into the Act in order that occupants of lands on which there were unauthorised structures and, who are allowed to continue in possession of the structures do not continue to occupy those lands without payment of any amount at all to public authorities.
It appears that even after forfeiting the structures consequent upon the passions of ;U1 order under section 4(l), the State government has been recovering compensation from unauthorised occupants.
It seems quite incongruous that while the true owner is prevented from taking legal proceeding to recover any rent or compensation from persons who had trespassed upon his land, the State Government can recover penal charges from the trespassers.
Moreover, the Statement of objects and Reasons of the Second Amendment Act shows that the Government had carried out substantial environmental improvements on vacant lands and had sponsored a scheme for building semi permanent houses thereon.
They intended to give to the occupants of such structures security of tenure subject only to the condition of regular repayment by them of the loans given by the financial institutions.
The true owners of lands are totally ignored in this scheme of things, even if they are victims and not the authors of unauthorised constructions.
[14811; 149A B; F G] (6) The unconstitutionality of the Act cannot be cured by the framing of the Rules made three and a half years after the Act was passed.
Besides, the Rules only provide for a notice to be given and objections to be considered before the passing of an order under sections 2 (f) (b) and 4(l).
They do not make a similar provision before permission is granted or refused under section 3(1) of the Act.
But, even, the Rules do not lay down any guidelines for the exercise of the discretition which is conferred upon the Competent Authority by section 2(f) (b) or section 4(1) of the Act.
[146E F] (7) The Act does not violate the provisions of article 31(1) of the Constitution as it then stood.
It does not provide for transfer of ownership of vacant lands to the State or to a corporation owned or controlled by the State; nor does it vest in the State the right of the owner or occupier of vacant lands to recover rent or compensation for use and occupation of such lands.
[150A B] (8) The Act does not amount to a measure of requisition and is not 134 bad for the reason that it provides for requisition without payment of compensation.
It is straining the language of the Act to hold that it provides, directly or indirectly, requisition of private property the Act does not transfer the right to possession of vacant lands to the State, its agents or its instrumentalities.
Therefore the Act does not offend against the provisions of Article 31(2) of the Constitution as it then stood Since that Article is not attracted, no question can arise of the invalidity of the Act on the ground mentioned in Article 31(5), namely that the Act had not received the assent of the President.
[150C D] (9) In so far as the question of legislative competence is concerned, the High Court was right in holding that the State Legislature had the competence to pass the Act under Entries 18, 64 and 65 of List 11 [150C D]
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<s>[INST] Summarize the judgementAppeal No. 1406 of 1969.
Appeal from the judgment and order dated April 17, 1969 of the Delhi High Court in Civil Writ No. 611 of 1968.
The appellant appeared in person.
Jagadish Swarup, Solicitor General, R. L. Mehta and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Ray, J.
This appeal by certificate from the judgment of the High Court at Delhi challenges the order dated 5th July, 1968 placing the appellant under suspension.
The appellant canvassed two grounds : first, that the order of suspension was passed on a report which was made mala fide, and, therefore, the order of suspension was bad; secondly, the order of suspension was made under sub rule (1) of Rule 7 of the All India Service (Appeal and Discipline) Rules, 1955, and is, therefore, liable to be quashed.
The appellant was appointed to the Indian Police Service in the year 1935.
He was posted as Inspector General of Police of the State of Andhra Pradesh, on 1 November, 1956.
He was ,confirmed as Inspector General of Police, Andhra Pradesh in the year 1957.
On 14 May, 1966, he reached the age of 55 years. 'He, however, continued to work as Inspector General of Police, Andhra Pradesh up to 1 August, 1967.
He was then posted as Special Inspector General of Police for the revision of Police Standing Orders.
123 Some time in the year 1967 the Chief Minister of Andhra Pradesh ordered that the Chief Secretary should make an enquiry with regard to certain allegations against the appellant.
The Chief Secretary recommended that the Vigilance Commissioner in the State of Andhra Pradesh might be requested to look into the matter.
The Vigilance Commissioner advised that the enquiry should be conducted by an independent agency like the Central Bureau of Investigation.
The Central Bureau of Investigation thereafter made an enquiry.
The appellant was given allegations to answer.
The appellant submitted explanation and was examined.
The Central Bureau of Investigation made a report on the enquiry.
On 1 1 July., 1968 the Government of India, Ministry of Home Affairs made an order placing the appellant under suspension.
The appellant alleged as follows.
The Chief Minister of the State of Andhra Pradesh was inimical and hostile to the appellant since the time of the General Elections in the year 1967.
The investigation by the Central Bureau of Investigation was conducted by persons who were hostile to the appellant.
The Ministry of Home Affairs ' Government of India, should not have relied on the report because the initiation and the conduct of the enquiry were motivated mala fide on the part of the Chief Minister of the State and other persons.
The other contention of the appellant was that under sub rule (1) of Rule 7 of the All India Service (Appeal and Discipline) Rules, 1955 the order of suspension could be made only if disciplinary proceeding was initiated and the Government was satisfied that there should be an order and in the present case the order did not satisfy the provisions of the rule, and therefore, the order is bad.
The pre eminent question in this appeal is whether the order of suspension is in infraction of Rule 7.
Rule 7 is as follows "(1) If having regard to the nature of the charges and the circumstances in any case the Government which initiates any disciplinary proceeding is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may (a) if the member of the Service is serving under it pass an order placing him under suspension, or (b) if the member of the Service is serving another Government, request that Government to place him under suspension, pending the conclusion of the inquiry and the passing of the final order in the case 124 Provided that in cases where there is a difference of opinion between two State Governments the matter shall be referred to the Central Government whose decision thereon shall be final.
(2). . . . . (3) A member of the Service in respect of or against whom, an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude".
Rule 7 sub rule (1) contemplates suspension when disciplinary proceeding is initiated and the Government is satisfied that it is necessary to place a member of the Service under suspension.
It was contended by the appellant that the order of suspension was made under sub rule (1) in the present case without any disciplinary proceedings.
The order does not have any reference to sub rule (1) of Rule 7.
The order recites first that there are ' serious allegations of corruption and malpractice against the appellant, secondly that the enquiry made by the Central Government revealed that there is a prima facie case and thirdly that the Government of India after considering the available material and having regard to the nature of the allegations against the appellant, the circumstances of the case is satisfied that it is necessary and desirable to place the appellant under suspension.
At the hearing of the appeal Mr. Solicitor General produced the correct copy of the First Information Report dated 17 August, 1967 under section 154 of the Code of Criminal Procedure.
It will appear from the report that the appellant was charged with offences under the Prevention of Corruption Act, 1947 and the time of occurrence was the period 1960 to 1967.
Sub rule (3) of Rule 7 states that a member of the Service in respect of, or against whom, an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge.
The appellant contended that the appellant was not suspended under sub rule (3) of Rule 7.
That is a contention The facts are that there was an investigation and the trial is awaiting relating to a criminal charge against the appellant.
The order of suspension has to be read in the context of the entire case and 1 2 5 combination of circumstances.
This order indicates that the Government applied its mind to the allegations, the enquiries and ;the circumstances of the case.
The appellant has failed to establish that the Government acted mala fide.
There is no allegation against any particular officer of the Government of India about acting mala fide.
The order or suspension was made under subrule (3) and does not suffer from any vice of infringement of Rule 7.
The appellant made allegations against the Chief Minister of Andhra Pradesh and other persons some of whose names were disclosed and some of whose names were not disclosed.
Neither the Chief Minister nor any other person was made a party.
The appellant filed an affidavit in support of the petition.
Neither the petition nor the affidavit was verified.
The affidavits which were filed in answer to the appellant 's petition were also not verified.
The reason for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of, rival parties.
Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records.
The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.
In essence verification is required to enable the Court to find out as to whether 'it will be safe to act on such affidavit evidence.
In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence.
The affidavit evidence assumes importance in the present case because of allegations of mala fide acts on the part of the respondents.
The appellant alleged that the Union of India made the order of suspension because of the pressure of the Chief Minister of the State of Andhra Pradesh.
The appellant, however, did not name any person of the Union of India who acted in that manner and did not implied the Chief Minister as a party.
In order to succeed on the proof of mala fides in relation to the order of suspension, the appellant has to prove either that the order of suspension was made mala fide or that the order was made for collateral purposes.
In the present case, the appellant neither alleged nor established either of these features.
The appellant contended that the report of the Central Bureau of Investigation was made mala fide.
The appellant appeared before the investigation authorities.
We ate not concerned with the correctness and the propriety of the report.
We have only to examine whether the order of suspension was warranted by the rule and also whether it was in honest exercise of powers.
The order of suspension satisfied both the tests in the present case.
126 In view of the fact that the criminal case is pending, it is desirable not to express any opinion on the merits and demerits of the charges as also the rival contentions of the parties because such an opinion may cause prejudice.
The appellant raised a contention as to the vires of the and the validity of the investigation.
In view of the fact that sanction for the trial is pending pursuant to the investigation under the First Information Report dated 17 August, 1967 the appellant did not want a decision on this point in this appeal because the appellant would raise that contention in the criminal case.
We have, therefore, left open the contention as to the to enable the appellant to agitate that contention, if so advised, in the criminal trial.
The appeal, therefore, fails and is dismissed.
In view of the fact that there was no order as to costs in the High Court, we are of opinion that each party should bear its costs in this Court.
G.C. Appeal dismissed.
[/INST]Sub section (6) of section 144 of the Code of Criminal Procedure provides that no order under s, 144 shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government, by notification in the Official Gazette otherwise directs.
The City Magistrate of Jamshedpur passed orders under section 144(1) against the respondents which were later extended by the State Government of Bihar in exercise of its powers under section 144(6).
In a writ petition filed by the respondents the High Court of Patna struck down the second part of sub s.(6) of section 144 as being violative of sub cls.
(b), (c) and (d) of cl.
(1) of article 19 of the Constitution.
The State appealed and contended that the only operative orders were those made by the Magistrate and the Government merely extended those orders.
Further, since the order of the Government got merged in the orders of the Magistrate, the extended order was open to review under sub section
(4) of section 144 and the same was also revisable under section 435 read with section 439 of the Code of Criminal Procedure.
HELD : Per Shelat, Vaidialingam, Hedge and Ray, JJ. (i) The Magistrate 's order is no doubt the basic order.
But after the process in the first five sub sections of section 144 is completed he becomes functus officio.
The decision that the circumstances mentioned in sub section
(6) of section 144 Criminal Procedure Code continue to exist and the original order should be continued is that of the Government.
It is not a case of the Government order getting merged in the Magistrate 's order.
Rather the Magistrate 's order is adopted by the Government as its own order.
[194 A C] The order of the Government is made in the name of the Governor ,and signed by a Secretary to the Government.
It is published in the Official Gazette.
It is thus clearly an executive act of the Government coming within article 166 of the Constitution.
If the direction given under section 144(6) is intended to merely keep alive a judicial order, the legislature would have entrusted that function to a judicial authority as has been done in the case of an order under section 144(1).
[194 E F] Section 144(4) says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate subordinate to him or by a predecessor in office.
It is not possible to bring within the scope of this section the order made by the State Government.
for if it was so intended it would have been mentioned in the section.
[194 G] From a plain reading of section 144(6) it is clear that the power conferred on the Government is an independent executive power, not expected to be exercised judicially.
It is open to be exercised arbitrarily.
The direc 182 tions given in the exercise of that power need not be of a temporary nature.
The ambit of that power is very large and is uncontrolled.
[195 B] (ii) The fact that the Legislature is expected to keep a check on governmental actions does not absolve this Court 's responsibility.
The fundamental rights constitute a protective shield to the citizen as against State actions and the Court cannot desert its duty on the assumption that the other organs of the State would safeguard the fundamental right of the citizens.
[195 C D] (iii) In order to be a reasonable restriction within the meaning of article 19 of the constitution the same must not be arbitrary or excessive and the procedure and the manner of its imposition must also be fair and just.
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable.
One of the im portant tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed.
Further the courts have to see whether it is in excess of the requirement or imposed in an arbitrary manner.
Although the object of a restriction may be beyond reproach and may very well attract the protection of sub articles
1 to 6 or article 19, if the State fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid.
[196 C F] Since section 144(6) gives the power to impose the restrictions contemplated by it to the executive Government and not to a judicial authority and there is no right of representation, appeal or revision given to ,the aggrieved party against an order which may not be of a temporary nature, it must be held that the said impugned provision is violative of article 19 (1) (b) (c) and (d) and is not saved by articles 19(3) (4) or (5).
[196 G] Babulal Parate vs State of Maharashtra and Ors. ; , ,referred to.
State of Madras vs V. G. Rao, ; ; Dr. Khare V. State of Delhi, ; ; State of Madhya Pradesh vs Baldeo Prasad ; and Virendra vs State of Punjab; , , applied.
Per Shah, J. (dissenting).
Sub section
(6) of section 144 does not authorise the ,State Government to make the order of the Magistrate permanent.
It ,cannot direct it to continue after apprehension of danger or emergency ceases.
The validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested.
The order duration of which is extended by declaration of the State is and continues to remain that of the Magistrate.
The 'source of the authority of the order is derived not from the State Government, but from the Magistrate.
It cannot be said that the order of the Magistrate gets merged with that of the Government when its duration is extended.
Although no provision is made in the Code for a judicial review of the State Government 's order under section 144(6), the said order does not depend on the subjective satisfaction of the Government and is capable of being challenged in a petition under article 226 of the Constitution ' Further the Magistrate who passed the original order may in considera tion of the materials placed before him under section 144(4) rescind or alter the State Government 's order.
In the exercise of his judicial functions 183 the Magistrate is independent of the Government and not subordinate to it.
The principle applies even in the case of an Executive Magistrate who under the scheme of separation of powers may be responsible to the executive authorities.
The above remedies being available the provision in section 144(6) cannot be held to be unreasonable on the mere ground that there is no express provision in the Code for redress against the, State Government 's order.
Reasonableness of a statutory provision cannot 'be determined by the application of set formulas : it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction contemplated to be imposed, gravity of the evil intended to be remedied thereby, object intended to be achieved by the imposition of restriction, and other relevant circumstances.
B D] Case law referred to.
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<s>[INST] Summarize the judgementAppeal Nos.
173031/1993.
From the Judgment and Order dated 30.6.1992 and 2.9.1992 of the Jammu and Kashmir High Court in L.P.A. No 161/90.
and C.W. P. No. 1352/88.
D.D. Thakur, M.H. Baig.
Rajendra Mal Tatia, Indra Makwana and K. K. Gupta (for Suresh A. Shroff & Co.) for the Appellants.
V.R. Reddy, Addl.
Solicitor General and Ashok Mathur for the Respondents.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
Heard counsel for the parties.
Leave granted in S.L.Ps. 12608/92 and 16418/92.
The appeals are directed against the judgment of the Division Bench of the Jammu and Kashmir High Court allowing a special appeal preferred by the State of Jammu and Kashmir against the judgement of the learned Single Judge.
The learned Single Judge had allowed the writ petition filed by the appellants herein.
The matter pertains to approval and publication of the select list of District Munsifs prepared by the Jammu and Kashmir Public Service Commission.
On May, 28. 1984 the High court intimated the Government of ten vacancies in the category of munsifs and requested the Government to initiate appropriate steps for selection of candidates.
The government wrote to the public service commission and the latter issued the notification and put the process in motion.
Written test was held in the year 1985.
viva voce was also held.
At that stage, the High Court requested the government (with a copy forwarded to the public service commission) to select twenty candidates in the place of ten.
This was done on December 10, 1985.
The government, in turn, requested the public service commission on December 27, 1985 to select twenty 100 candidates.
On March 11, 1986 the Public Service Commission sent three select lists,.
one containing twenty candidates, the other containing three scheduled castes candidates and a waiting list of ten candidates.
From the record placed before us by the learned counsel for the State of Jammu and Kashmir, it appears that the government received several complaints against the selection process.
The government appears to have been satisfied prima facie with some of those complaints and was toying with the idea of scrapping the entire list and asking for a fresh selection.
The select list sent by the commission was kept pending without being approved as required by Rule 39 of the Jammu and Kashmir Civil Service,, (.Judicial) Recruitment Rules, 1967.
Meanwhile, the High Court had been pressing for approval of the names in view of a number of vacancies and the consequent accumulation of work.
Number of courts were without presiding officers.
In particular, the High Court said, there was urgent need for at least thirteen Munsifs.
In the circumstances, the government approved, on December 23, 1986.
tile names of thirteen persons out of the list recommended by the public service commission and Published the same.
They were appointed on December 30, 1986.
Meanwhile, a writ petition had been tiled in the High Court for a direction to the Government to approve and publish the list recommended by the public Service commission.
On December 30, 1986.
the Advocate General for the State stated before the court that the Government has already approved thirteen entries and that the question of approval of the remaining, persons in the list was under the active consideration of the Government.
Recording the said statement, the writ petition was dismissed as settled.
The Government however, did not approve any of the other names in the lists.
evidently in view of the very same reasons for which they were disinclined initially to approve the said lists.
Meanwhile, the candidates in the select list below serial No. 13 were pressing the Government to approve and publish the list.
The High Court was also addressing the government from time to time to approve the list in view of certain vacancies arising since the appointment of the thirteen Munsifs aforementioned.
Since no further names were being approved by the Government, the writ petition, from which these appeals arise, was filed on September 14, 1988.
The writ petition was allowed on July 11,1990 by a learned Single Judge and a direction was issued to the State Government to approve and publish the list of 101 the remaining candidates submitted by the public service commission to it for appointment as munsifs immediately in accordance with the Rules of 1967 and to consider the appointment of such candidates (including the writ petitioners) as munsifs in the vacancies existing or likely to exist in accordance with the recommendations to be made by the High Court.
On appeal, the Division Bench disagreed with the learned Single Judge.
The Bench held that approval and publication of the select list by the Government under Rule 39 is not a mere ministerial act but a meaningful one.
It is open to the government to examine the select list carefully and to reach its own conclusion regarding the suitability and merits of the candidates and publish the names of only those candidates who are found suitable.
While approving the list, the Division Bench held, the State Government cannot alter or temper with the order of merit determined by the commission but it is certainly open to the government to stop at a particular point where it feels that a particular candidate is not meritorious and not to approve the remaining list.
The government is not bound to fill up the existing vacancies within a particular time frame.
The mere inclusion in the select list also does not confer upon the candidates any indefeasible right to appointment.
The recommendations of the commission are not binding upon the State Government held the Division Bench.
In the facts and circumstances of the case, it must be held that the remaining seven names in the select list have been disapproved by the government.
The writ petition also suffers from leaches.
The persons who had meanwhile become eligible and qualified to apply for the said post should also be given a chance.
A list prepared as far back as 1985 86 cannot be directed to be approved in the year 1992.
In these appeals, it is submitted by the learned counsel for the appellants that once the public service commission prepares and recommends a select list, the government has no power to sit in judgment over it.
It is bound to approve the list as recommended.
The function of the government under Rule 39 of the 1967 Rules is merely ministerial and formal.
Even otherwise, the government has not disclosed any reasons for not approving the seven names while approving the first thirteen.
The government 's action is arbitrary and capricious.
It is indeed vitiated by inadmissible and extraneous considerations.
The government cannot be allowed an absolute power in the matter.
On the other hand, it is contended by Sri Dipankar Gupta, learned Solicitor General appearing for the State of Jammu and 102 Kashmir that the function of the government under Rule 39 is not merely formal or ministerial.
The government being the appointing authority, is entitled to scrutinise the list prepared by the public service commission.
It is open to the government either to approve or disapprove the list either wholly or in part.
As a matter of fact, a large number of complaints were received by the government against the said selection and many of them were also found to be not without substance.
However, in view of the pressing need expressed by the High Court, the first thirteen candidates in the list were approved in the interest of judicial administration.
The remaining seven names were not approved inasmuch as no vacancies were available at that time.
In all the circumstances of the case, the Hon 'ble Chief Minister took a decision on March 28, 1988 not to approve any further names and to go in for fresh selection.
Inasmuch as the vacancies at the end of the year 1986 were not more than thirteen, the refusal to approve the remaining seven is a valid and bonafide exercise of power and discretion on the part of the government.
The appellants have no legal right to be appointed just because their names have been included in the select list prepared by the public service commission.
The first requisition by the High court was sent in May, 1984.
The written test was held in 1985.
The select list was recommended in March, 1986.
After a lapse of more than seven years, the said list cannot now be directed to be given effect to, the learned Solicitor general submitted.
Such a direction would deprive a large number of persons, who have become qualified and eligible to apply and complete for the said post meanwhile of the opportunity of applying for the said post.
Many of them may even become age barred meanwhile, he submitted.
It is true that the government is the appointing authority for the munsifs but it is misleading to assert that in the matter of selection and appointment the government has an absolute power.
Such an argument does violence to the constitutional scheme.
The Constitution has created a public service commission and assigned it the function of Conducting examinations for appointments to the services of the Union or to the services of the State, as the case may be.
According to Article 320 clause (1) this is the primary function of the commission.
The Government is directed to consult the public service commission on all matters relating to methods of recruitment to civil services and to civil posts and on the principles to be followed in making.
appointment to civil services and posts and on the suitability of candidates for 103 such appointment, among other matters.
An examination of Articles 317 to 320 makes it evident that the constitution Contemplates the commission to he an independent and effective body outside the governmental control.
This is an instance of application of the basic tenet of democratic form of government viz., diffusion of governing power, The idea is not to allow the concentration of governing power in the hands of one person, authority or organ.
It is in the light of this constitutional scheme that one has to construe Rules 39 and 41 of the 1967 Rules.
They read as follows: 39.Final List: The list of selected candidates after it is approved shall be published by the Government Gazette and a copy thereof shall be sent to the court along with the Waiting list, if any, furnished by the commission for record in their office.
Security to the list: The list and the Waiting list of the selected candidates shall remain in operation for a period of one year from the date of its publication in the, Govt.
Gazette or till it is exhausted by appointment of the candidates whichever is earlier, provided that nothing in this Rule shall apply to the list and the waiting list prepared as a result of the examination held in 1981 which will in operation till the list or the waiting list is exhausted.
" Construed in the above light, Rule 39, in our opinion, does not confer an absolute power upon the government to disapprove or cancel the select list sent by the public service commission.
Where, however, the government is satisfied, after due enquiry that the selection has been vitiated either on account of violation of a fundamental procedural requirement or is vitiated by consideration of corruption, favourtism or nepotism, it can refuse to approve the select list.
In such a case, the government is bound to record the reasons for its action, and produce the same before a Court, if and when summoned to do so, apart from placing the same before the Legislature as required by clause (2) of Article 323.
Indeed, clause (2) of Article 323 obliges the Governor of a State to ray a copy of the annual report received from the 104 commission before the Legislature "together with a memorandum explaining, as respect the cases, if any, where the advice of the commission was not accepted (and) the reasons for such non acceptance.
" Evidently, this is meant as a check upon the power of the government.
This provision too militates against the theory of absolute power in the government to disapprove or reject the recommendations of the commission.
For the same reason, it must be held that the government cannot pick and choose candidates out of the list.
Of course, where in respect of any particular candidate any material is discovered disclosing his involvement in any criminal activity, the government can.
always refuse to appoint such person but this would not be a case touching the select list prepared and recommended by the commission.
It is equally not open to the government to approve a part of the list and disapprove the balance.
In this case, it may be remembered that the government itself had asked for a list of twenty and the commission had sent a list of twenty.
(we are not concerned with the waiting list sent by the commission, at this stage).
It could not have been approved in part and rejected in part.
The number of vacancies available on the date of approval and publication of the list is not material.
By merely approving the list of twenty, there was no obligation upon the government to appoint them forthwith.
Their appointment depended upon the availability of vacancies.
A reading of Rule 41 makes this aspect clear.
The list remains valid for one year from the date of its approval and publication.
If within such one year, any of the candidates therein is not appointed, the list lapses and a fresh list has to be prepared.
In this case, no doubt, a number of complaints appears to have been received by the government about the selection process.
We have seen the note file placed before us.
It refers to certain facts and complaints.
But if the government wanted to disapprove or reject the list, it ought to have done so within a reasonable time of the receipt of the select list and for reasons to be recorded.
Not having done that and having approved the list partly (thirteen out of twenty names) the cannot put forward any ground for not approving the remaining list.
I indeed, when it approved the list to the extent of thirteen, it ought to have approved the entire list of twenty or have disapproved the entire list of twenty.
The objection, the government have pertains to the very process of selection i.e., to the entire list, and not individually to any of the remaining seven candidates.
It is true that mere inclusion in the select list does not confer upon 105 the candidates included therein an indefeasible right to appointment State of Haryana vs Subhash Chandra Marwaha A.I.R. 1 973 S.C.2216; M.S, Jain vs
State of Haryana A.I.R. and State of Kerala vs A. Lakshmikutty A.I.R. but that is only one aspect of the matter.
The other aspect is the obligation of the government to act fairly.
The whole exercise cannot be reduced to a farce.
Having sent a requisition/request to the commission to select a particular number of candidates for a particular category, in pursuance of which the commission issues a notification, holds a written test, conducts a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment.
We do not think that any government can adopt such a stand with any justification today.
This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash vs Union of India 1991 1 3 S.C.C.47 where the earlier decisions of this court are also noted.
The following observations of the court are apposite: "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied.
Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post.
Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the licence of acting in an arbitrary manner.
The decision not to fill up the vacancies has to he taken bona fide for appropriate reasons.
And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.
This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Hary 106 ana vs Subhash Chander Marwahs, Neelima.
Shangla vs State of Haryana or Jatendra Kumar vs State of Punjab.
" We may reiterate that the principle of Article 323, referred to hereinabove, is equally relevant on the nature of the power of the government in such a matter.
Looked at from the above stand point, it appears that the government 's action in not approving the rest of the seven names in the Select list is unsustainable but there are certain circumstances which induce us not to interfere in this matter.
They are: (i) During the period of one year from the date of approval of ' thirteen names (23.12.1986/30.12.1986) no vacancy bid arisen.
which means that even if the list of twenty had been approved and published on December 23 or December 30.
1986 none of the seven persons would have been appointed.
At the end of one year.
the list lapis and becomes inoperative.
The first letter of the High Court stating that one or two more vacancies have arisen and requesting the Government to approve the remaining names, was sent only on August 13,1988 i.e., long after the expiry of the one year period.
Any direction at this stage to approve the list would be a futile exercise.
The list cannot be operated with respect to the vacancies existing as on today; and (ii) When the government failed to act within a reasonable period from the date of the order December 30, 1986 ) of the High Court in writ petition 1316/84 (which was disposed of recording the statement of the Advocate General ) the petitioners ought to have moved in the matter.
They did not do so.
They waited for more then twenty months and approached the High Court only on September 14.
This delay in our opinion, disentitles the petitioners from any relief in the facts and circumstances of the case.
For the above reasons, the appeals fail and are dismissed.
No costs.
WRIT PETITION (C) NO.
81 OF 1993: 107 The petitioner in this writ petition was included in the waiting list prepared by the public service commission.
Since the appeals preferred by the candidates at serial No. 14 onwards in the main list have themselves failed.
there is no question of giving any relief to this petitioner.
The writ petition accordingly fails and is dismissed.
No costs.
V. P. R. Appeals dismissed.
[/INST]The nomination paper of the fourth respondent who was one of the candidates for election to the Legislative Assembly of the State, was rejected by the returning officer on the ground that as he was the Headmaster of a Government aided school he was disqualified under section 7(d) and (e) of the Representation of the People Act, 1951, to be chosen for election.
One of the voters of the constituency filed a petition praying that the election of the appellant be declared void under section 100(1)(c) of the Act on the ground that the rejection of the nomination paper of the fourth respondent was improper because the latter had ceased to be a Headmaster at the time of his nomination and that, further, the institution was a private one.
The appellant, who was the second respondent in the petition, contended that the nomination paper of the fourth respondent was rightly rejected not only on the ground put forward before the returning officer but also for the reasons that he was interested in Government contracts and that he had agreed to serve as a, teacher under the District Board.
The question was whether in an election petition challenging the validity of the rejection of a nomination paper under s: 100(1)(c) of the Act, it was open to the parties to raise grounds 624 of disqualification other 'than those put forward before the returning officer.
It was contended for the respondent that the proceedings before the Election Tribunal were really by way of appeal against the decision of the returning officer and that, therefore, the scope of the enquiry in the election petition must be co extensive with that before the returning officer and must be limited to the grounds taken before him.
Held, that an election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Representation of the People Act, 1951, and that the jurisdiction which a Tribunal exercises in hearing an election petition even when it raises a question under section 100(1)(c) of the Act is not in the nature of an appeal against the decision of the returning officer.
Held, further, that in considering whether a nomination paper was improperly rejected under section 100(1)(c), the real question for decision would be whether the candidate was duly qualified and was not subject to any disqualifications as provided in section 36(2) of the Act.
The Tribunal would, consequently, be competent to entertain grounds of disqualification other than those put forward before the returning officer.
The expression " improperly rejected " in section 100(1)(c) of the Act, explained.
Mengh Raj vs Bhimandas, , Tej Singh vs Election Tribunal, JaiPur, and Dhanraj Deshlehara vs Vishwanath Y. Tamaskar, (1958) 15 E. L. R. 260, approved.
</s>
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<s>[INST] Summarize the judgementCivil Appeal No 707 of 1973.
From the Judgment and Decree dated the 23rd December 1971 of the Madras High Court in Civil Suit No. 158 of 1966.
K. section Ramamurthi, section Balakrishnan, N. M. Ghatate for the appellant.
A.K. Sen, J. section Arora and H. K. Puri for respondent No. 1.
G. L. Sanghi and Girish Chandra for respondents Nos. 2 and 3.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The Trustees of the Port of Madras, appellants herein, filed suit No. 158 of 1966 in the High Court of Madras for recovering a sum of Rs. 3,1 8,968.04 from the respondents by way 724 of demurrage.
The 1st respondent is a firm called M/s. Aminchand Pyarelal, the 2nd respondent is the Union of India and the 3rd respondent is the Collector of Custom, Madras.
A learned single Judge referred the suit to a Division Bench which dismissed it by a judgment dated December 23, 1971.
This is an appeal by certificate granted by the High Court under Article 133(1)(a) of the Constitution.
On April 10, 1963 a Steamer "A.P.J. AKASH" arrived at the Madras Port and landed, among other goods, a consignment of 202 bundles of black plain sheets of various sizes.
The appellants received the goods and stored them in transit sheds.
The goods were imported by the 1st respondent under an authorisation issued by the State Trading Corporation of India which held a licence dated June 16, 1962 to import the goods from Hungary.
The Clearing Agents of the 1st respondent filed a Bill of Entry with the 3rd respondent 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 its explanation the 3rd respondent passed an order on November 12, 1963 confiscating the goods under section 111 (a) of the .
The 1st respondent preferred an appeal against that order to the Central Board of Excise and Customs, New Delhi, which was allowed by the Board on July 27, 1964.
On August 21, 1964 the Clearing Agents of the 1st respondent requested the customs authorities to issue a certificate for the permission of the transit dues for the period during which the goods were detained.
A certificate was accordingly issued by the 3rd respondent stating that the goods were detained by the Customs Authorities from April 24, 1963 to August 21, 1964 for examination under section 17(3) and section 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 1st respondent.
Acting on this certificate, appellants waived the demurrage for the period covered by the certificate, whereupon the 1st respondent cleared the consignment on August 25 and August 27, 1964 on payment of the Harbour dues, Cranage charges and Demurrage charges for the period not covered by the certificate.
Thinking that the certificate was issued erroneously, appellants wrote a letter dated January 27, 1965 to the 3rd respondent requesting him to reconsider the matter.
By his letter of April 12, 1965 the 3rd respondent owned up the mistake and stated 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 section 17(3) and (4) of the .
The case of the appellants is that due to the negligent mistake committed by the 3rd respondent in issuing the certificate, they charged to the 1st respondent a sum of Rs. 1963.60 only whereas 725 it was liable to pay a sum of Rs. 3,20,951.64 by way of demurrage.
The appellants called upon the 3rd respondent to pay up the balance but the latter, by his reply dated July 6, 1965 repudiated all liability, contending that the Union of India could not be held liable for the negligent or tortious acts of its officers done in good faith during the course of their official duties and that the appellants should seek J their remedy against the 1st respondent.
Later, the appellants brought the present suit against the three respondents to recover the demurrage.
The case of the appellants as made out in the plaint is that the liability of respondents 2 and 3 was in the region of contract or quasi contract, that the appellants were put to a loss due to the wrong certificate issued by the 3rd respondent and therefore respondents 2 and 3 could not repudiate their liability to pay the demurrage.
As regards the 1st respondent, the case of the appellants is that it had contravened the Import Trade Control regulations, that it was fully aware of the true facts that it was not open to it to take advantage of the wrong certificate issued by respondent 3 and that therefore it was also liable to pay the demurrage.
The 1st respondent disputed its liability to pay the demurrage contending that it could not be penalised either for the delay caused by the Customs authorities in clearing the goods or for the issuance by them of a wrong certificate.
According to the 1st respondent, the consignment imported in April, 1963 was one of a series of consignments which the 1st respondent had imported under a con tract with the State Trading Corporation for a fixed remuneration.
The 1st respondent had not authority to deal with he imported goods but was bound to hand them over at the agreed price to the State Trading Corporation or its nominee The 1st respondent further stated that the only controversy raised by the Customs authorities related to a difference in the size of the sheets imported under the import licence and that if the appellants had called upon it to pay by way of demurrage a sum as large as over rupees 3 lakhs, the 1st respondent would have rejected the goods as against the supplier unless the State Trading Corporation was willing to accept the goods.
The import clearance orders were granted on the recommendation of the Corporation which held the import licence and which arranged for the grant of import clearance permits to persons like the 1st respondent on the basis that the goods were imported on behalf of the Corporation.
Finally the 1st respondent contended that the scale of charges in the Port Trust Regulations under the heading "Chapter IV 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 unreasonableness of the demurrage charges, according to the 1st respondent, was obvious from the fact that whereas the goods were of the value of Rs. 1,31,501 appellants were claiming a sum of over rupees 3 lakhs by way of demurrage.
726 The 2nd respondent, the Union of India, set out the various facts attendant upon the import of the goods and contended that the appellants had no cause of action against it or the 3rd respondent.
The 3rd respondent adopted the written statement of the 2nd respondent.
The High Court held that the levy of demurrage ill cases where the goods were detained by the Customs authorities for no fault or negligence on the part of the importer, was unreasonable and also beyond the powers of the appellants and that the appellants were not entitled to recover demurrage from any of the respondents.
Two questions, mainly, arise for consideration in this appeal : firstly, whether the scale of fees under which the appellants charge demurrage is void as being unreasonable and as being beyond their powers; and, if the answer to the first question is in the negative, whether the 1st respondent is liable to pay the demurrage claimed by the appellants.
Counsel for the appellants did not press the claim against respondents 2 and 3.
The decision of the first question turns on the relevant statutory provisions but before considering the validity of the levy, it would be necessary to know the procedure which is adopted in the Madras Port during the process of importation and clearance of goods.
The local agents of the ship inform the Traffic Manager of the Port Trust of the probable date of arrival of the ship and submit to the customs House the "Import General Manifest" which contains a description of the goods which are at board for landing at the Port.
The Dock Labour Board supplies the labour to the Master of the ship for unloading the goods and for putting them on the quay side so as to enable the Port Trust authorities to take charge of the goods.
The Port Trust labour handles the goods on the shore and when the Port Trust takes charge of the same, it is obliged under section 39(3) of the Madras Port Trust Act, 1950, to give a receipt to the Master of the Ship.
With few exceptions, all goods received by the Port Trust are kept in the transit sheds.
The Port Trust charges Harbour Dues for receiving the goods, handling them and keeping them in tile transit sheds.
The importer then files the Import Application and the Steamer Agent 's Delivery order which is in the nature of an authority from the Steamer as bailor, to the Port Trust as the bailee, to deliver the goods to the importer or his agent.
Section 45 of the forbids the person having the custody of any imported goods in the customs area from permitting their removal except under and in accordance with the written permission of the Customs authorities.
The goods are cleared by the Customs authorities if the importation is not contrary to any law and if the importer pays the import duty assessed on the goods and the other charges payable under the .
If the customs officer is of me opinion that the goods have been imported contrary to any prohibition imposed by the or the Imports and Exports (Control) Act, or by the orders issued or the rules framed thereunder, 727 a notice is issued under section 111 or section 112 of the calling upon the importer to show cause why the goods should not be confiscated.
If the importer shows good cause" the goods are released and thereupon the Customs authorities issue a Detention Certificate stating if that be true, that the goods were detained for examination under sections 17(3) and (4) of the and that the detention was due to no fault or negligence on the part of the importer.
The Port Trusts are under a statutory obligation to perform certain duties and equally so they have statutory powers to fix scales of fees and rates.
The statute with which we are here concerned directly is the Madras Port Trust Act, 2 of 1905, (hereinafter called "the Act").
It is necessary to notice the relevant provisions thereof in order to understand the controversy in this appeal.
Section 5(1) defines the "Board" to mean the Trustee of the Port of Madras appointed under the Act.
Section 5(12) defines "Rate" as including any toll, due, rent, rate or charge leviable under the Act.
By section 7 the Board consists of 21 Trustees including the Chairman.
Section 8 provides that the Chairman of the Board shall be appointed by the Central Government and the remaining trustees shall be (1) the Collector of Customs, Madras, (2) the Municipal Commissioner for the City of Madras, (3) the General Manager, M. & section M. Railway, (4) the General Manager, South Indian Railway; (5) one representative of the Mercantile Marine Department chosen by the Central Government; (6) one representative of the Defence Services chosen by the Central Government.
(7) one representative of the State Government chosen by the State Government; (8) two representatives of labour chosen by the Central Government after consultation with the registered trade unions, if ally, composed of persons employed in the port; and (9) eleven elected trustees.
By section 8(2), of the eleven elected trustees one is elected by the Madras Municipal Corporation and the remaining by such provincial or local bodies representing commercial interests as the Central Government may, from time to time, by notification in the official Gazette, specify.
Such notification may also specify the number of trustees that each of such bodies may elect.
Section 10 which lays down disqualifications for the trustee 's office provides, inter alia, that a person shall be disqualified to be a trustee if, inter alia, he holds any office or place of profit under the Board.
This provision does not, however, apply to the Chairman.
ex officio Trustees and Trustees appointed by virtue of office.
Section 23(1) lays down the procedure governing the proceedings of the Board while section 23 (2) provides that the Board may, from time to time, appoint committees consisting of not less than five of its members for carrying into effect any part of the provisions of the Act with such powers and under such instructions, directions or limitations as shall be defined by the Board.
By section 39 the Board is under an obligation, according to its powers, to provide all reasonable facilities for, and has the power to 728 undertake the services of the description mentioned in the sub section among those services are landing of goods from vessels in the Port, and receiving, storing or delivering goods brought within the Board 's premises.
Section 39(2) imposes upon the Board the obligation, if so required by any owner, to perform in respect of goods all or any of the services mentioned in clauses (a), (b) and (d) of section 39(1).
Under section 39(3) the Board shall, if required, take charge of the goods for the purpose of performing the service and shall give a receipt in the prescribed form.
After the goods have been taken charge of and the receipt given by the Board, no liability for any loss or damage which may occur to the goods can attach to any person to whom a receipt shall have been given by the Board or to the master or the owner of the vessel from which the goods have been landed.
Under section 40 the responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge is, subject to cerain provisions, that of a bailee under sections 151, 152 and 161 of the Indian Contract Act subject to certain modifications.
Chapter VI of the Act which appears under the heading "Imposition and Recovery of Rates" contains provisions which have direct impact on the contentions raised in this appeal.
Section 42 empowers the Board to frame a scale of rates at which and a statement of the conditions under which any of the services specified in clauses (a) to (e) of the section shall be performed by the Board.
Clause (b) refers to landing of goods from any vessel upon any land or building in the possession or occupation of the Board or at any place within the limits of the Board.
Clause (d) refers to "wharfage, storage or demurrage of goods on any such place".
Sections 43 and 43 A also confer on the Board power similar to that conferred by section 42.
By Section 44 every scale and every statement of conditions framed by the Board under sections 42, 43 and 43 A shall be submitted to the Central Government for sanction and, when so sanctioned and published in the official Gazette, such scale and statement of conditions have the force of law.
The Central Government has power under section 44(1a) at any time to cancel any of the scales framed by the Board or to call upon the Board to modify any portion of such scales whereupon the Board shall modify the scales according to the directions of the Central Government.
Section 44(2) confers power on the Board, in special cases, for reasons to be recorded in writing, to remit the whole or any portion of the rates or of any charge leviable according to any scale.
Under section 50 rates in respect of goods to be landed are payable immediately on the landing of the goods; rates in respect of goods to be removed from the premises of the Board are payable before the goods are removed.
Under section 51 the Board has a lien on the goods for the amount of all rates leviable under the Act on the goods and it may seize and detain the goods until the rates are fully paid.
This lien has by section 52 priority over all other liens and claims except for general average and the ship owner 's lien for freight and other charges where 729 such lien exists and has been preserved in the manner provided in section 53.
Under section 56, if the rates payable to the Board remain unpaid, it is competent to the Board to sell the goods by public auction after expiry of two months from the time That the goods have passed into its custody and in the case of perishable goods after the expiry of a shorter period not being less than 24 hours.
Section 57 requires that the notice of sale must be published in the official Gazette.
By section 58 notice is also required to be given to the owner of the goods, if the address of the owner is known.
Under section 58 A? notwithstanding anything contained in the Act, where any goods placed in the custody of the Board are not removed by the owner or other person entitled there to from the premises of the Board within one month, the Board may, after due notice, required that the goods be removed forthwith or that in default of compliance the goods would be liable to be sold by public auction.
In cases where all the rates and charges payable under the Act have been paid, such a notice for removal of the goods cannot be given before the expiry of two months from the date on which the goods.
were placed in the custody of the Board.
If the notice is not complied with, the Board may at any time after the expiration of one month from the date on which the notice was served or published sell the goods by public auction.
Section 62 preserves the right of the Board to recover the rates by a suit.
Section 95 of the Act which appears ill Chapter XI called "Bye Laws" empowers the Board to make bye laws not inconsistent with the provisions of the Act, inter alia, for the safe and convenient use of sheds, for the reception and storage of goods brought within the premises of the Board, for the mode of the payment of the rates leviable under the Act and generally for carrying out the purposes of the Act.
Section 109 of the Act which has an important bearing on these proceedings provides that nothing contained in the Act shall affect any power vested in the Chief officer of Customs under any Law for the time being in force.
Section 49 of the , 52 of 1962, provides that where in the case of any imported goods, the Assistant Collector of Customs, is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse or in a private warehouse if facilities for deposit in a public warehouse are not available.
Acting in pursuance of the power conferred by sections 42, 43 and 43 A, the appellants have framed a "Scale of Rates" payable at the Port of Madras, which has been duly sanctioned by the Central Government under section 44 of the Act.
We are concerned with the rates framed under section 42 which are contained in Chapter IV of the Scale of Rates.
The various scales of rates arc divided into three parts: Book I, Book II and Book III.
Chapter IV is headed "Demurrage " and it occurs in Book I called "Charges for certain 16 L925SupCI/75 730 services which the Board is prepared to render to the public".
The introductory part of Chapter IV says: "Demurrage is chargeable on all goods left in the Board 's transit sheds or yards beyond the expiry of the free days.
After demurrage begins to accrue no allowance is made for Sundays or Board 's holidays.
The free days are fixed by the Board from time to time.
" Scale 'A ' of Chapter IV prescribes conditions governing "Free Days", the normal rule being that two working days in the case of coast cargo and three working days in the case of foreign cargo excluding Sundays and the Board 's holidays arc treated as free after complete discharge of a vessel 's cargo, or the date when the last package was put overside.
Rule 13(b) is the focus of controversy between the parties and it would be used to read along, with it clause (a) as well: "13.
The following free periods are allowed in addition to the free periods applicable as per description of goods: (a) Periods during which goods are detained by the Collector of Customs for examination under Section 17(3) and (4) for chemical test under Section 144 of the other than the ordinary processes of appraisement and certified by the Collector of Customs to be not attributable to any fault o.; negligence on the part of the Importers plus one working day.
The Customs holidays will also be treated as free days in addition.
(b) Where goods are detained by the Collector of Customs, on account of Import Trade Control formalities or for compliance of formalities prescribed under the Drug 's Act and certified by the Collector of Customs to be not attributable to any fault or negligence on the part of Importers, demurrage shall be recovered for this period at the rate of 30 per cent of the normal rate, i.e. the rate at which the goods would in cur demurrage had there been no detention by the Customs.
This concession in demurrage shall be limited to a period of 30 days plus one working day and demurrage shall be recovered at the full rate (i.e., third slab) for detention beyond the above said period.
" Under clauses (c) and (d) of Rule 13, period during which the goods are detained by the Port Health Authority and the periods during which the Board is unable to trace packages owing lo congestion of accommodation, wrong sorting or incorrect tallying are also treated as Free Days.
The High Court dismissed the appellants suit for the following reasons: (1) The Scale of Rates fixed by the Board is in the nature of Bye Laws; (2) Bye Laws may be treated as ultra vires for the 731 reasons, inter alia, that they are repugnant to the statute under which they are made or that they are unreasonable; (3) 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; (4) In principle, there can be no distinction between cases falling under clause (a) and those falling under clause (b) of Rule 13, and if 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 is therefore arbitrary and unreasonable; (5) 'Demurrage ', being a charge for wilful failure to remove the goods within the free period can be believed only if the failure to remove the goods is due to the fault or negligence of the importer or his agent; (6) Having regard to this well accepted meaning of the word 'demurrage ', the authority give to the Board by section 42 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; (7) 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; (8) All the same, if two views are reasonably possible" a construction which favours the validity of a rule or statute should be preferred to that which renders it void Therefore, under the scale of charges for demurrage provided in Chapter IV, the appellants can levy demurrage only in cases where the delay in clearing the goods is due to the fault or negligence of the importer or his agent.
The first four of these reasons relate to the invalidity of Rule 13(b) viewed as a bye law while the last four relate to its invalidity on the ground that it is in excess of the power conferred by section 42 of the, Act.
Both of these sets of reasons appear to us unsustainable.
As stated in "Craies on Statute Law" (7th Ed., pp.
325 326), 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 arc unreasonable.
But the error of the High Court 's judgment lies in the assumption that the "Scale of Rates and Statement of Conditions" framed by the appellants under sections 42, 43 and 43 A are bye laws.
Section 42 with which we are concerned confers authority on the Board to "frame a scale of rates at which and a statement of the conditions under which any of the services specified" in the section shall be performed.
Section 43 confers an identical power in the Board in regard to certain other matters while section 43 A authorises the Board to prescribe consolidated rates.
Provision for framing bye laws is made in Chapter XI called "Bye Laws" and section 95 which occurs in that Chapter mentions the various subjects on which the Board may frame bye laws.
Under Chapter XI, the Board has no power to frame bye laws for fixing scales of rates or a statement of the conditions under which any of the services specified in sections 42, 43 and 43 A shall be performed.
The nearest that section 95 touches the subject of rates is by clause (6) which refers to the 732 mode of the payment of the rates leviable under this Act.
The Board having expressly empowered by section 42 to frame.
I scale of rates and a statement of the conditions under which it shall perform the services specified in the section and the Board having in terms exercised that power under the aforesaid section, there is no justification for supposing that in framing the scale of rates and the statement of conditions, the Board has purported to frame a bye law.
What the High Court has done is to assume, in the first place, that the Board has not exercised the power which it undoubtedly possesses and which in fact and in terms it did exercise.
The High Court then assumed that the Board had exercised the power which it did not possess" a power which the Board has not even purported to exercise.
Making these unfounded assumptions, the High Court invalidated Rule 13 (b) on the basis that it was a bye law and a bye law could be declared ultra vires on the ground that it is unreasonable.
We are unable to accept the High Court 's view that the scale of rates prescribed by the Board under sections 42, 43 and 43 A consists, as it were, of so many bye laws or that Rule 13 is in the nature of a bye law.
A bye law has been said to be an ordinance affecting the public.
Or some portion of the public, impose by same 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.(1) The Board 's power to frame the 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 of which the Board performs the services mentioned in sections 42, 43 and 43 A.
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 in that behalf by the Board.
Indeed, some of the services which the Board may perform are optional and if the importer desires to have the benefit of those services, he has to pay the charges prescribed therefore in the Scale of Rates.
For example, any one wanting to use the Board 's premises for any of the purposes mentioned in clauses (a) to (d) of section 43 would have to pay the charges prescribed by the Board for the use of its premises.
Similarly any one desiring to have the benefit of the Boards 's services in behalf of cranage or storage as specified in clauses (c) and (d) of section 42 shall have to pay for these services at the prescribed rates.
Whether the services are from the importer 's point of view optional in the sense that he may or may not require them or whether the importer has no option save to avail himself of the basic services of the Board as for landing and keeping the goods in the transit area, the services have to be paid for at the scale of rates prescribed by the Board.
In such matters, where services arc offered 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 its services at prescribed rates and the other accepting the services as those rates.
(1)See Halsbury 's Laws of England, 3rd Ed.
24, p. 510, paragraph 940 citing Kruce vs Johnson at p. 96.
733 As, generally, in the case of bye laws framed by a local Authority, there is in such cases no penal sanction for the observance of the conditions on which the services are offered and accepted.
If the services are not paid for, the Board can exercise its statutory lien on the goods under section 51 and enforce that lien under section 56 of the Act; or else, the Board may take recourse to the alternative remedy of a suit provided for by section 62.
With this, the entire reasoning of the High Court on the first aspect of he matter must fall because Rule 13(b) has been declared ultra vires on the basis that it is a bye law and, as such, it is arbitrary and unreasonable.
But we would like to point out, since the High Court has taken pains to go into the matter quite elaborately, that 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.
In Kruse vs Johnson(1) a question was raised as to the validity of a bye law made by a county council for regulating street music.
I Lord Russell of Killowen observed in that case .
"When the Court is called upon to consider the bye laws of public representative bodies clothed with the ample authority which I have described, accompanied by the checks and safeguards which I have mentioned.
I think the consideration of such bye laws ought to be approached from a different standpoint.
They ought to be supported if possible.
They ought to be, as has been said, benevolently interpreted ' and credit ought to be given to those who have to administer them that they will be reasonably administered.
" The learned Chief Justice said further that there may be "dases in which it would be the duty, of the court to condemn by laws made under such authority as these were made (by a county council) as invalid because unreasonable.
But unreasonable in what sense ? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifest unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. ' But it is in this and this sense only, as I conceive, that the question of reasonableness or unreasonableness can properly be regarded.
A bye law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient or because it is not accompanied by an exception which some judges may think ought to be there." (1) , at pp.
734 In Slattery vs Naylor(1) it was observed that when considering whether a bye law is reasonable or not, the court need a strong case to be made out against it, and decline to determine whether it would have been wiser or more prudent to make the bye law less absolute, nor will they hold that it is unreasonable because considerations which the court would itself have regarded in framing such a bye law have been overlooked or rejected by its framers.
n In the first place, Port Trusts are bodies of a public representative character who are entrusted by the legislature with authority to frame a scale of rates and statement of conditions subject to which they shall or may perform certain services.
Port Trusts are not commercial organisations which carry on business for their own profit.
Sections 39(1) and (2) of the Act cast on the Board an obligation, according to its powers, to provide all reasonable facilities, if so required by any owner, for various kinds of services mentioned in clauses (a), (b) and (d) of section 39(1), which include services in regard to landing of goods between vessels and docks in possession of the Board and receiving, storing or delivering goods brought within the Board 's premises.
The Board under section 39(3) shall, if required, take charge of the goods for the purpose of performing the service.
After the goods are thus taken charge of and a receipt given for them, no liability for any loss or damage which may occur to the goods attaches to any person to whom the receipt has been given or to the master or owner of the ship from which the goods have been landed.
The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge is, under section 40 of the Act, that of a bailee under sections 151, 152 and 161 of the Contract Act, subject to some modifications.
Thus rates which the Board levies are a consolidated charge for the various services it renders and the liability which it is compelled by statute to undertake.
The Board of Trustees is a representative body consisting of 21 Trustees out of whom eleven are elected.
The Collector of Customs the Municipal Commissioner, the General Managers of Railways, a representative each of the Mercantile Marine Department and the Defence Services of the Central Government, and two representatives of labour are the other members of the Board.
Out of the eleven elected Trustees, one is elected by the Municipal Corporation and the remaining by provincial or local bodies representing commercial interests.
The Board of Trustees is thus a broad based body representing a cross section of variety of interests.
It is the Board thus constituted that frames the Scale of Rates and Statement of Conditions under which the services shall or may be performed by it.
Every scale and every statement of conditions framed by the Board has to be submitted to the Central Government for sanction under section 44 and it is only when it is so sanctioned that it has the force of law.
The requirement of sanction by the Central Government is a restraint on unwise, excessive or arbitrary fixation of rates.
Section 44(2) confers on the Board the power, in special cases and for reasons to be record (1) , 452.
735 ed in writing, to remit the 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 109 of the Act provides that nothing in the Act shall affect any power vested in the Chief officer of Customs under any law for the time being in force.
Section 49 of the confers power on the Assistant Collector of Customs, if he is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, to permit that the goods may, pending clearance, be stored in a public warehouse and if such a, facility is not available, then in a private warehouse.
This provision together with section 44(2) of the Act constitutes a measure of mitigation.
In face of these considerations, it is impossible to characterise the scheme for the levy of rates as arbitrary or unreasonable.
The High Court contrasted clause (b) of Rule 13 with its clause (d) and held that there is no distinction between the two classes of cases and if cases falling under clause (a) are wholly exempt from the payment of demurrage, so ought to be those falling under clause (b).
The error of this conclusion lies in equating cases falling under clause (b) with those falling under clause (a).
The two clauses deal with different sets of cases: clause (a) deals with cases where the goods are detained for examination under sections 17(3) and (4) or for chemical test under section 144 of the , other than for the ordinary processes of appraisement; 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.
We see no warrant for the court substituting its own view as to the allowance of Free Days in a technical matter like the fixation of rates which has been considered by an expert Board of Trustees and whose decision has been confirmed by the Central Government.
Equating the two classes of cases dealt with by clauses (a) and (b) of Rule 13 may 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.
There is a fundamental aspect of the fixation of rates which the High Court has overlooked.
What is the object and purpose of the rates which the Board charges to the importer ? Port Trusts do not do the business of warehousing goods and the rates which the Board charges for storage of goods are not levied as a means of collecting revenue.
The Board is under a statutory obligation to render services of various kinds and those services have to be rendered not for the personal benefit of this or that importer but in the larger national interests.
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 pre 736 mises with the utmost expedition.
The appellants in their reply statement filed in the High Court have referred to the Report of the Committee set up in 1967 by the Ministry of Transport and Shipping, Government of India.
The Committee consisted of top level experts, one each from the Ports of New York, London and Notterdam who made a general survey of the Ports and Harbours in India.
The Committee observed in its Report: "To effect quick clearance of the cargo from the Harbour, the demurrage rates may be so fixed as to make it unprofitable for importers to use the port premises as a warehouse.
"Viewed from this angle, the scale of rates cannot be characterised as unreasonable.
That takes us to the question whether the scale of rates fixed by the Board is beyond the power conferred on it by section 42 of the Act.
If section 42 were to authorise the Board to fix rates of 'Demurrage '.
it might perhaps have been arguable that the Scale of Rates and the Statement of Conditions must conform to the accepted meaning of the word 'Demurrage '.
But the statute has placed no such limitation on the power of the Board to fix the rates.
By Section 42 power is conferred on the Board to frame "a scale of rates at which and a statement of the conditions under which any of the services 1> specified" in the section "shall be performed".
And the Board has fixed the scale of rates and the statement of conditions for the services it may have to perform.
It is difficult to see in what manner or respect the Board has exceeded its power under section 42.
The High Court seems to have thought that the Board had the limited right to fix rates of demurrage and therefore rates could only be levied on goods which were not removed from the Board 's premises due to some fault or negligence on the part of the importer or his, agent.
The High Court was probably misled in this conclusion by the use of word 'demurrage ' in clause (d) of section 42.
But 'demurrage ' is surely not a service to be performed by the Board and is, on any view, a charge leviable on goods.
Clauses (a) lo (d) of section 42 refer to various services like transshipment of passengers and goods, landing and shipment of passengers or goods, cranage or porterage of goods and wharfage or storage of goods.
It is these services in respect of which section 42 authorises the Board to frame a scale of rates and the statement of conditions.
The circumstances that the Board has used the expression 'Demurrage ' as a heading for Chapter IV of the Scale of Rates or that it has used that expression in Rules 13(b) and (c) cannot constitute a fetter on its powers to fix the rates.
The validity of the exercise of that power has to be judged on the language of section 42 which is the source of the power.
The High Court has cited many texts and dictionaries bearing on the meaning of 'Demurrage ' but these have no relevance for the reason that demurrage being a charge and not a service, the power of the Board is not limited to fixing rates of demurrage.
Besides, it is plain that the Board has used the expression 'Demurrage ' not in the strict mercantile sense but merely to signify a charge which may be levied on goods after the expiration of Free Days Rule 13(b) itself 737 furnishes a clue to the sense in which the expression 'demurrage ' is used by the Board.
It provides, inter alia, that "demurrage" shall be recovered at a concessional rate for a period of thirty days plus one working day where the goods are detained for compliance with certain formalities and where the Collector of Customs certifies that tile detention of goods is "not attributable to any fault or negligence on the part of Importers".
The High Court was therefore in error in holding the scale of rates fixed by the Board as ultra vires and void on the grounds that it is unreasonable and that it is in excess of the power conferred by section 42 of the Act.
The only question which now remains to be considered is whether the respondents are liable to pay the demurrage demanded of them by the appellants.
The appellants ' claim against respondents 2 and 3 has no foundation in law and was rightly not pressed by the appellants ' counsel.
Respondent 3 is the Collector of Customs who, obviously., cannot be made personally liable to pay the demurrage.
Respondent 2 is the Union of India against whom and respondent 3.
the appellant 's claim is said to reside partly in the region of "contract or quasi contract".
We are unable to spell out any such basis on which the claim of the appellants could rest.
The issuance of an incorrect 'Detention Certificate ' by the 3rd respondent cannot also help the appellants to fasten the liability for demurrage on respondents 2 and 3 on the ground of their negligence.
As observed by the High Court, all the relevant facts were before the appellants who could, with reasonable care, have avoided the consequences flowing from the Certificate issued by the 3rd respondent.
As regards the appellants ' claim against the 1st respondent, the High Court was prepared to hold the latter liable to pay the demur rage except for the fact that the scale of rates was unreasonable and beyond the power of the Board.
As we have set aside the High Court 's findings on those points, it has to be examined whether the 1st respondent is liable to pay the demurrage.
Unfortunately, parties fought in the High Court a legal battle and gave no importance to facts on which the liability of the 1st respondent may be said to rest.
Facts must come before the law for, legal principles cannot be applied in a vacuum.
No oral evidence was led by the parties and we find it difficult on a mere Perusal of documents to say that respondent 1 ought to be held liable to meet the appellants ' claim.
Documents do not prove themselves nor indeed is the admissibility of a document proof by itself of the truth of its contents.
Import Licence No. CL/ 53/3/02105 1 dated June 16, 1962 under which the goods were imported stood in the name of the State Trading Corporation of India.
It issued an authorization in favour of the 1st respondent which, as the documents go, was liable to deliver the consignment to the nominees of the Corporation.
The 1st respondent.
it would appear, was only entitled to charge a commission for the work done by it in pursuance of the authorisation issued by the Corporation.
The 1st respondent had no title to or interest in the goods except to deliver them 738 in accordance with the instructions of the Corporation.
If the appellants were to enforce their 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 then demanding the demurrage which they claimed later, thereby depriving the 1st respondent of an opportunity to reject the goods as against the supplier unless, of course, the Corporation was within to accept them and along with them the liability for the payment of demurrage.
In the absence of any more facts we find it impossible on the record as it stands, to accept the appellants ' claim against the 1st respondent.
Out of 15 issues framed in the suit, issues 1 and 10 only pertain to the liability of the 1st respondent and on those issues, the facts appearing; on the record are too scanty to support the appellants ' claim against the 1st respondent.
We., therefore, hold that the claim against the 1st respondent must also fail In the result, we confirm the decree of the High Court dismissing the appellants ' suit, though for entirely different reasons.
In the circumstances, there will be no order as to costs.
P.H.P. Appeal dismissed .
[/INST]The vendors sold the suit land,to the appellants (vendees) by a registered deed of sale for Rs. 43,000/ .
The ' respondents filed the suit for possession by pre emption of the land in payment of Rs. 30,000/ on the allegations that the respondents were on the date of sale tenants of the land under the vendors.
I They also alleged that the sale took place for Rs. 30,000/ only and the re maining amount was fictitiously mentioned in the deed of sale.
The suit was ' dismissed on the ground that one suit on behalf of the four plaintiffs who were tenants of different parts of the land, was not maintainable.
On appeal the suit was remanded for re trial.
At the trial on remand, two plaintiffs withdrew from the suit.
The trial court directed the remaining two plaintiffs respondents Sohan Lal and Nathi to deposit Rs. 6,300/_ and Rs. 5.670/ respectively on or before 1 April, 1969 less 1/5th of the pre emption amount already deposited by them.
The Trial Court gave the respondent Sohan Lal a decree for possession by pre emption in respect of Killa Nos.
14/1 .
17 and 18/1 of Rectangle 37.
The plaintiffs respondents, aggrieved by the order filed an appeal alleging that the decree should have been Passed for the whole of the land because the respondent Sohan Lal was also a tenant of Killa , No.
24 of Rectangle 37 under the vendors.
On 29 July 1969.
the Additional District Judge passed a decree for possession by pre emption in favour of respondent Sohan Lal of Killa No. 24 of Rectangle 37 on payment of Rs. 9,100/ and he was also directed to deposit this amount on or before 20 August, 1969.
The decree in favour of Nathi was maintained without charge.
The appellants filed an appeal before the High Court and it was contended before the High Court that respondents did not deposit the decretal amount by l April, 1969 as directed by the Trial Court and, therefore, the suit was liable to be dismissed under order 20 Rule 14 of the Code of Civil Procedure.
The High Court accepted the appeal of the appellants against the plaintiff Nathi and dismissed the appeal against the plaintiff respondent Sohan Lal.
The High Court said that since the lower appellate court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs. 9,100/ .
the respondent was to comply with the appellate decree and not the decree of the Trial Court.
Allowing the appeal by special leave, ^ HELD: (1) The directions given by the Trial Court are mandatory under the provisions contained in order 20 Rule 14 of the Code of Civil Procedure.
A decree in terms of order 20 Rule 14, imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance bt the other.
[600E F, G].
Naguba Appa vs Namdey reported in A.I.R. l 954 S.C. 50 and Dattaraya S/o Keshav Tawalay vs Shaikh Ali and Anr.[1969] 2 S.C.R. 514 relied on.
(ii) It is only if the plaintiffs respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate court might have considered the passing of appropriate order in favour of pre emptors.
The High Court should have allowed the appellants ' appeal and not made any distinction in dismissing plaintiffs respondent Nathi 's suit and allowing Plaintiff respondent Sohan Lal any extension of time to make the payment.
[601F G] 599
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<s>[INST] Summarize the judgementCivil Appeal No. 2422 of 1978.
Appeal by Special Leave from the Judgment and Order dated 13 2 1978 of the Kerala High Court in TRC No. 63/76.
M.M. Abdul Khader, V.J. Francis and M.A. Firoz for the Appellant.
The Judgment of the Court was delivered by BHAGWATI, J.
The questions of law which arise for determination in this appeal lie in a very narrow compass and do not present any difficulty in answering them.
They are the usual type of questions that arise under the Sales Tax legislation, namely, whether a particular commodity sold or purchased by the assessee falls within one entry or another.
The assessee always contends that it falls within an entry which attracts lesser rate of tax while the Revenue invariably seeks to bring it within the entry attracting a larger rate of tax.
Two questions arise here for consideration.
One question is whether certain ornaments and other articles of gold purchased by the assessee with a view to melting them and making new ornaments 940 or other articles out of the melted gold fall within Entry 56 in the First Schedule of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act") which reads "Bullion and Specie".
If the ornaments and other articles of gold purchased by the assessee fall within this Entry, the turn over of purchases of these goods would be liable to be taxed at the rate of 1 per cent, while it would have to suffer tax at the rate of 3 per cent if these goods do not fall within the Entry and are taxable under section 5A read with sec.
5(1) (ii) of the Act.
The other question relates to taxation of the turnover of sales of G.I. Pipes effected by the assessee and it raises the point whether G.I. Pipes sold by the assessee fall within Entry 26A in the First Schedule to the Act which reads "Water Supply and Sanitary Fittings".
If they do not fall within this Entry, the turn over of their sales would be liable to be taxed at the rate of 3 per cent under section 5(1) (ii) of the Act, but if they do, then the rate of tax would be 7 per cent.
The Sales Tax Officer, and in appeal the Appellate Assistant Commissioner decided both the questions against the assessee and taxed the turn over of purchases of ornaments and other articles of gold at the rate of 3 per cent and the turn over of sales of G.I. Pipes at the rate of 7 per cent.
The Tribunal, on further appeal by the assessee, disagreed with the view taken by the tax authorities and holding that the ornaments and other articles of gold purchased by the assessee were "Bullion and specie" within the meaning of Entry 56 and G.I. Pipes sold by the assessee were not covered by the expression "water supply and sanitary fittings" in Entry 26A, taxed the assessee at the lesser rates as claimed by him.
The Revenue thereupon took the matter by way of revision to the High Court, but the High Court also took the same view and affirmed the judgment of the Tribunal.
This decision of the High Court is assailed in the present appeal preferred by the Revenue after obtaining special leave from this Court.
We will first consider the question whether the ornaments and other articles of gold purchased by the assessee fall within the description of "Bullion and specie" given in Entry 56.
There are two expressions in this Entry which require consideration; one is "bullion" and the other is "specie".
Now there is one cardinal rule of interpretation which has always to be borne in mind while interpreting entries in Sales Tax legislation and it is that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in common parlance.
We must give the words used by the legislature their popular sense meaning "that sense which people conversant with the subject matter with 941 which the statute is dealing would attribute to it".
The word "bullion" must, therefore, be interpreted according to ordinary parlance and must be given a meaning which people conversant with this commodity would ascribe to it.
Now it is obvious that "bullion" in its popular sense cannot include ornaments or other articles of gold.
"Bullion" according to its plain ordinary meaning means gold or silver in the mass.
It connotes gold or silver regarded as raw material and it may be either in the form of raw gold or silver or ingots or bars of gold or silver.
The Shorter Oxford Dictionary gives the meaning of "bullion" as "gold or silver in the lump; also applied to coined or manufactured gold or silver considered as raw material." So also in Jowitt 's Dictionary of English Law and Wharton 's Law Lexicon we find that the following meaning is given for the word "bullion", "uncoined gold and silver in the mass.
These metals are called so, either when melted from the native ore and not perfectly refined, or where they are perfectly refined, but melted down into bars or ingots, or into any unwrought body, of any degree of fineness".
It would, therefore, be seen that ornaments and other articles of gold cannot be regarded as "bullion" because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured or finished products of gold.
Nor do they come within the meaning of the expression "specie".
The word "specie" has a recognised meaning and according to Webster 's New World Dictionary, it means "coin, as distinguished from paper money".
The Law Dictionaries also give the same meaning.
Wharton 's Law Lexicon and Jowitt 's Dictionary of English Law state the meaning of "specie" as "metallic money" and in Black 's Law Dictionary, it is described as "coin of the precious metals, of a certain weight and fineness, and bearing the stamp of the Government, denoting its value as currency" while "Words and Phrases Permanent Edition Vol.
39A" also gives the same meaning.
Therefore, according to common parlance, the word "specie" means any metallic coin which is used as currency and if that be the true meaning, it is obvious that ornaments and other articles of gold cannot be described as "specie".
It would thus seem clear that the ornaments and other articles of gold purchased by the assessee do not fall within Entry 56 and they are, accordingly, liable to be taxed not at the lesser rate of 1 per cent applicable to "bullion and specie" but at the general rate of 3 per cent under section 5A read with Section 5(1) (ii) of the Act.
That takes us to the second question in regard to taxability of the turnover of sales of G.I. Pipes made by the assessee.
The Revenue 942 contended that G.I. Pipes fall within the description "water supply and sanitary fittings" in Entry 26A so as to be exigible to tax at the higher rate of 7 per cent while the assessee contended that they are not covered by this expression and are, therefore, taxable only at the lesser rate of 3% under sec.
5(1) (ii) of the Act.
The determination of this question turns on the true interpretation of the words "water supply and sanitary fittings".
So far as the expression "sanitary fittings" is concerned, it has received judicial interpretation by this Court in State of Uttar Pradesh vs Indian Hume Pipe Ltd. where it has been laid down that "sanitary fittings" according to the popular sense of the term mean such pipes or materials as are used in lavatories, urinals or bath rooms of private houses of public buildings.
The G.I. Pipes sold by the assessee would, therefore, fall within the description of "sanitary fittings" only if it can be shown and the burden of so doing would be on the Revenue, that they were meant for use in lavatories, urinals or bath rooms.
It does not appear that the attention of the assessee and the tax authorities was drawn to this aspect of the question and hence no material was brought on record which would throw light on the question as to what was the use for which the G.I. Pipes were meant.
If the G.I. Pipes were heavy and intended to be laid underground for carrying supply of water from one place to another, they would obviously not be "sanitary fittings".
This is, however, a question which has not been considered by the Revenue authorities and the case would, therefore, have to be remanded to the Appellate Assistant Commissioner for the purpose of determining whether having regard to the meaning which this Court has placed on the expression "sanitary fittings", the G.I. Pipes sold by the assessee fall within that description.
But the Revenue contended that even if the G.I. Pipes are not "sanitary fittings" within the meaning of that expression, they would still fall within the description "water supply. .fittings".
Now, it must be remembered that the category of goods in Entry 26A is not described as "water supply pipes" but as "water supply and sanitary fittings".
The use of the word "fittings" suggests that the expression is intended to refer to articles or things which are fitted or fixed to the floor or walls of a building and they may in a given case include even articles or materials fitted or fixed outside, provided they can be considered as attached or auxiliary to the building or part of it, such as, for example, a pipe carrying faecal matter from the commode to the sceptic tank, but they cannot include pipes laid underground 943 for carrying water supply.
Moreover, the words "water supply. . fittings" do not occur in isolation, but they are used in juxtaposition of the words "sanitary fittings".
The entire expression "water supply and sanitary fittings" is one single expression and the words "water supply. fittings" must receive colour from the immediately following words "sanitary fittings".
We are, therefore, of the view that the expression "water supply. fittings" in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another.
Therefore, even for the purpose of determining whether G.I. Pipes sold by the assessee are "water supply. . fittings", it would have to be found as to what is the purpose for which they were meant to be used and since the question has not been approached from this point of view, we think it desirable that the case be sent back to the Appellate Assistant Commissioner for the purpose of determining whether, in the light of this meaning placed by us on the words "water supply. fittings", the G.I. Pipes sold by the assessee could be said to be "water suply. . . fittings.
" We, therefore, allow the appeal, set aside the orders made by the High Court, the Tribunal and the Appellate Assistant Commissioner and hold that so far as the ornaments and other articles of gold purchased by the assessee are concerned, they were liable to be taxed at the general rate of 3 per cent under section 5A read with section 5(1) (ii) of the Act and so far as G.I. Pipes sold by the assessee are concerned, we remand the case to the Appellate Assistant Commissioner for the purpose of deciding on the basis of the existing material as also such further material as may be adduced, whether G.I. Pipes sold by the assessee fell within the description "water supply and sanitary fittings" so as to be exigible to sales tax at the higher rate of 7 per cent under Entry 26A.
There will be no order as to costs of the appeal.
N.V.K. Appeal allowed.
[/INST]Dismissing the appeal by special leave, the Court ^ HELD: 1.
Having due regard to the age of the accused Munni Marandi and to the absence of any overt act, a sentence of two years R.I. would, in the circumstances of his case meet the ends of justice for the offence u/s 149 read with Section 326 I.P.C. [587 G H] 2.
Absence of legislation cannot be made up for by judicial legislation, Babua Marandi was aged 15 years at the time of the offence and there is no Children Act in Bihar.
Though the conviction or sentence cannot be interfered with, in the hapless circumstances of the case and in the helpless situation of legislative vacuum all that this Court can do is to direct that Babua Marandi be placed either in an open prison or in a model prison or any other prison available in the State where young offenders are kept apart from the adult offenders.
The special directions for doing so is that adolescents should be separated from adults in prison campuses for obvious reasons.
[588C E]
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<s>[INST] Summarize the judgementvil Appeal No. '1376 of 1977.
From the Judgment and Order dated 26.5.77 of the Punjab and Haryana High Court in Civil Revision No. 125/77.
Ashok Sen, S.C. Manchanda, Mrs. Urmila Kapoor, Ms. section Janani and Ms. Meenakshi for the Appellant.
E.C. Aggarwala, Miss Purnima Bhatt, V.K. Pandita, A.V. Paila, and Atul Sharma for the Respondents.
The Judgment of the Court was delivered by SAIKIA, J.
This appeal by special leave is from the Judgment of the High Court of Punjab and Haryana allowing the revision petition, setting aside the order of the Senior Subordinate Judge and dismissing the application of the decree holder praying for permission to deposit the balance amount of the pre emption decree.
On 21.9.1975 the Court of the Senior Subordinate Judge decreed a claim to pre emption in favour of the appellant and against the respondents subject to the deposit of the purchase money being Rs.41,082 less the amount of 'Zare Panjum ' on or before 31.12.1975 failing which his suit would stand dismissed.
The appellant by application dated 22.11.1975, annexing a treasury challan, obtained permission to deposit 4/5th of the purchase money amounting to Rs.33582 and the amount was deposited on 28.11.1975, although the last date for depositing the amount was 31.12.1975.
On 4.12.1975 he filed an execution petition for being delivered possession of the land and the possession was actually delivered on 29.1.1976.
21 It appears, on 21.1.1976 the office reported that the amount deposited fell short of the decretal amount by Rs. 100.
Thereupon two separate applications were filed by the respondents judgment debtors and the appellants decree holder.
The former in their application prayed that the latter having not complied with the condition of the decree, he having deposited Rs. 100 less, the decree was a nullity and the suit stood dismissed, and hence, the land be re stored to them.
The appellant decree holder in his applica tion prayed for condonation of the delay and for permission to deposit the balance of Rs. 100 stating that there was an inadvertent arithmetical mistake on his part as also on the part of the Court officials.
The learned Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit and relying on Jang Singh vs Brijlal & Ors., ; and holding that the mistake of the decree holder was shared by the Court, condoned the delay and allowed 10 days ' time to deposit the balance of Rs. 100, failing which the suit should stand dismissed.
The respond ents having moved in revision therefrom under section 115 CPC, the High Court by the impugned Judgment, holding that the decree holder himself filed the application annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials, and applying Labh Singh vs Hardayal & Anr., [1977] 79 Punjab Law Reporter 417, allowed the revision petition, set aside the order of the Senior Subordinate Judge and dismissed the appellant decree holder 's application for condonation and permission to deposit the balance of Rs. 100.
Hence this appeal.
Mr. A.K. Sen, the learned counsel for the appellant submits that the Senior Subordinate Judge having exercised power within his jurisdiction under section 148 CPC in extending the time to deposit the deficit amount of Rs. 100, the revisional court mis directed itself in holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount; and it erred in setting aside the order extending time.
Counsel further submits that the decree holder having already obtained the warrant of possession and thereby taken actual delivery of possession, the decree was already exe cuted and the same having not been questioned, the revision petition was liable to be dismissed as infructuous.
Mr. E.C. Aggarwala, the learned counsel for the respond ent while not disputing that if power under section 148 CPC was exercised by the Senior Subordinate Judge in extending the time the order could not have been interfered with in revi sion, submits that the challan having been prepared by the decree holder himself, there was no mis 22 take on the part of any court officials in accepting short deposit, and the High Court rightly held that the appel lant 's suit stood dismissed because of non deposit of the decretal amount within time; and therefore there was no question of extension of any time for depositing the same.
The precise question to be decided in this appeal, therefore, is whether on the facts and in the circumstances of the case of preemption decree, the amount deposited within time by the decree holder having fallen short of the decretal amount by Rs. 100 owing to inadvertent arithmetical mistake, the court could extend the time to deposit that deficit amount exercising powers under section 148 CPC in view of the provision in Order XX Rule 14(1) CPC; and if so, whether the High Court erred in interfering with that order in revision under section 115 CPC.
Order XX Rule 14(1) provides: "Where the Court decrees a claim to pre emp tion in respect of a particular sale of property and the purchase money has not been paid into court, the decree shall (a) specify a day on or before which the purchase money shall be so paid, and (b) direct that on payment into court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs." In the instant case pre emption decree specified 31.12.1975 'as the day on or before which the purchase money was to be paid into Court.
But the exact amount to be paid was not specified; it only said Rs.41,082 "less the amount of Zare Panjum" which the parties admit to be 1/5th.
Thus only 4/5 of the amount was to be paid.
However, parties do not dispute that the amount deposited fell short of the decretal amount by Rs. 100.
From the above provision there is no doubt that where the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non payment, the suit shall be dismissed 23 with costs.
This shall be done by virtue of the above provi sion.
But when the decree holder deposits into court what he believes to be the entire purchase money but due to inad vertent mistake what is deposited falls short of the decre tal amount by a small fraction thereof and the party within such time after the mistake is pointed out or realised, as would not prove wilful default or negligence on his part, pays the deficit amount into the court with its permission, should the same result follow? This Court in Naguba Appa vs Namdev, AIR 1964 SC 50, has held that mere filing of an appeal does not suspend the pre emption decree of the trial Judge and unless that decree is altered in any manner by the Court of appeal, the pre emptor is bound to comply with its directions, and has upheld the finding that the pre emption suit stood dismissed by the reason of his default in not depositing the pre emption price within the time fixed in the trial court 's decree and that the dismissal of the suit is as a result of the mandatory provisions of Order 20 Rule 14 and not by reason of any decision of the Court.
There the pre emption money was not deposited within the fixed time.
The pre emptor thereafter made an application to the Court for depositing the amount without disclosing that the time fixed had expired.
The application was allowed; but the defendant applied to the Court for disposal of the suit pointing out that the time fixed for deposit had expired.
The trial Judge held that the pre emption money not having been paid within the time fixed in the decree the suit stood dismissed.
This decision was held to be correct.
It was a case of nondeposit of the whole of the purchase money and not of any fraction thereof.
In Jang Singh vs Briflal and Ors.
, (supra) the pre emption decree on compromise was passed in favour of Jang Singh and he was directed to deposit Rs.5951 less Rs. 1000 already deposited by him, by May 1, 1958, and failing to do so punctually his suit would stand dismissed with costs.
On January 6, 1958 Jang Singh made an application to the trial court for making the deposit of the balance of the amount of the decree.
The clerk of the Court, which was also the executing Court, prepared a challan in duplicate and handed it over with the application to Jang Singh so that the amount might be deposited in the Bank.
In the challan (and in the order passed on the application, so it was alleged) Rs.4950 were mentioned instead of Rs.4951 and it was depos ited.
In May, 1958, he applied for and received an order for possession of the land and the Naib Nazir reported that the entire amount was deposited in Court.
Bohla Singh (the vendee) then 24 applied on May 25, 1958, to the Court for payment to him of the amount lying m deposit and it was reported by the Naid Nazir on that application that Jang Singh had not deposited the correct amount and the deposit was short by one rupee.
Bhola Singh applied to the Court for dismissal of Jang Singh 's suit and for recall of all the orders made in Jang Singh 's favour.
The trial court allowed that application and also ordered reversal of its earlier orders and directed that the possession of the land be restored to him.
On appeal, the District Judge, holding that Jang Singh having approached the Court with an application intending to make the deposit the Court and its clerk made a mistake by order ing him to make the deposit of an amount which was less by one rupee.
Jang Singh was excused inasmuch as the responsi bility was shared by the Court and it accordingly held that the deposit made was a sufficient compliance with the terms of the decree and accordingly allowed the appeal setting aside the trial court 's order dismissing the suit.
On appeal by Bhola Singh the High Court took the view that the decree was not complied with and that under the law the time fixed in the decree for payment of the decretal amount in pre emption case could not be extended by the Court and that the finding that the short deposit was due to the act of the Court was not supported by evidence and accordingly allowed the appeal, set aside the decision of the District Judge and restored that of the trial court.
On appeal by Jang Singh this Court found that the application whereupon the Court directed the deposit of Rs.4950 remained untraced.
However, it was quite clear that the challan was prepared under the Court 's direction and the duplicate challan prepared by the Court as well as the one presented to the Bank had been produced in the case and they showed the lesser amount.
That challan was admittedly prepared by the Execution Clerk and it was also an admitted fact that Jang Singh was an illiter ate person.
The amount was deposited promptly relying upon the Court 's Officers.
The Execution Clerk had deposed to the procedure which was usually followed and he had pointed out that first there was a report by the Ahmed about the amount in deposit and then an order was made by the Court on the application before the challan was prepared.
It was, there fore, quite clear that if there was an error the Court and its officers largely contributed to it.
This Court, ob served: "It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is fur nished.
25 If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court.
If the liti gant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused.
There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake.
This is aptly summed up in the maxim: "Actus curiae neminem gravabit." In the facts of that case it was held that an error was committed by the Court which the Court must undo and which could not be undone by shifting the blame on Jang Singh, who was expected to rely upon the Court and its officers and to act in accordance with their directions.
It was also ob served that he deposited the amount promptly and a wrong belief was induced in his mind by the action of the Court that all he had to pay was stated in the challan.
The appeal was accordingly allowed, the High Court 's order was set aside and the appellant was ordered to deposit Re.1 within one month from the date of receipt of the record in the trial court.
It should be noted that in the facts and cir cumstances of a case of non deposit of a fraction of the purchase money extension of time to deposit the balance was granted by this Court.
It cannot therefore be said that on failure to deposit a minute fraction of the amount by the fixed date owing to wrong belief induced by Court officials the suit must be taken to have stood dismissed.
No doubt this was so because of the maxim actus curiae neminem gra vabit but there is no reason why the same result should not follow on similar justifiable grounds.
While mere filing of an appeal does not suspend a pre emption decree, a stay order passed by an appellate court may suspend it in the manner ordered therein.
In Dattaraya vs Shaikh Mahboob Shaikh Ali, ; , the pre emption decree in favour of the appellant was passed with the direction to pay the consideration of Rs.5,000 within 6 months from the date of the decree and in case of default the suit was to be deemed to have been dismissed.
The decree was confirmed in respondent 's appeal to the District Court on January 28, 1955.
The amount was deposited within the time fixed, but was subsequently withdrawn by him under orders of the Court.
While dismissing the appeal, the Dis trict Court directed the appellant to re deposit the 26 sum of Rs.5,000 on or before April 30, 1955 and directed the respondent on such deposit to deliver the possession of the properties and on failure to deposit the suit should stand dismissed with costs.
During the pendency of the respond ent 's Second Appeal in the High Court the respondent prayed for stay of execution of the decree.
On March 23, 1955 the High Court passed a stay order which was received by the trial court on April 19, 1955.
The appellant deposited the purchase price on May 2, 1955, that is, 3 days after the date fixed, filing an application stating that he could not deposit this within time as he fell ill.
The respondent 's Second Appeal was dismissed on October 6, 1960 and the pre emption decree in favour of the appellant was confirmed, and he obtained an order of possession.
The respondent having applied to the Executing Court for restitution of the properties on the ground that the appellant had defaulted in depositing the purchase money by the date fixed by the lower appellate court 's decree, i.e. April 30, 1955, the appellant contended that he would get by necessary implication a fresh starting point for depositing the purchase money from the date of the High Court 's decree.
The Executing Court reject ed the claim of the respondent for restitution and this decision was affirmed by the District Court.
But the High Court in appeal took the view that there was default on the part of the appellant in depositing the amount and, there fore, the appellant 's suit stood dismissed automatically.
While allowing the appeal therefrom this Court held: "The decree framed under 0.20, r. 14 Civil Procedure Code requires reciprocal rights and obligations between the parties.
The Rule says that on payment into Court of the purchase money the defendant shall deliver possession of the property to the plaintiff.
The decree holder therefore deposits the purchase money with the expectation that in return the pos session of the property would be delivered to him.
It is therefore clear that a decree in terms of 0.20, r. 14; Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other.
To put it differently, the obligations are recip rocal and are inter linked, so that they cannot be separated.
If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliv er possession of the properties the plaintiff decree holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues.
We are accordingly of the opinion that the order of stay dated March 23, 27 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price.
The effect of the stay order therefore in the present case is to enlarge the time for pay ment till the decision of the appeal.
" This Court was further of the opinion that the effect of the High Court 's order dated October 6, 1960 dismissing the second appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Court 's decree.
The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.
But the appellant had deposited the amount on May 2, 1955, long before the date of High Court 's decree and there was no default on the part of the appellant in fulfilling the terms of the High Court 's decree.
It was accordingly held that a decree of the High Court in second appeal should be construed in that case as affording by implication a fresh starting point to the plaintiff for making payment into the Court.
In Sulleh Singh vs Sohan Lal; , , reiterating what was held in Naguba Appa vs Narndev, (supra) and Dattaraya vs Shaikh Mahboob Shaikh Ali, (supra).
The trial court directed re spondents Sohan Lal and Nathi to deposit Rs.6,300 and Rs.5,670 respectively on or before 1st April, 1969 less 1/5th of the pre emption amount already deposited by them.
Sohan Lal 's decree was for possession by pre emption in respect of Killa Nos.
14/1, 17 and 18/1 of Rectangle 37.
The plaintiffs aggrieved by that order filed an appeal contend ing that the decree should have been passed for the whole of the land because the respondent Sohan Lal was also a tenant of Killa No. 24 of Rectangle 37 under them.
On 29th July, 1969, the Additional District Judge passed a decree for possession by pre emption in favour of respondent ' Sohan Lal in respect of Killa No. 24 of Rectangle 37 also on payment of Rs.9,100 and he was also directed to deposit this amount on or before 20th August, 1969.
The decree in favour of Nathi was maintained without change.
The appellants filed an appeal to the High Court contending that respondents did not deposit the decretal amount by 1st April, 1969 as directed by the trial court and, therefore, the suit was liable to be dismissed under Order 20 Rule 14 of the CPC and the High Court allowed the appeal against Nathi and dismissed the appeal against Sohan Lal holding that since the lower appel late Court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs.9,100 to be deposited on or before 20th August, 1969, the respondent was to comply with the appellate decree and not the decree of the trial court.
This Court upheld the appellant 's contention that the lower 28 appellate court was wrong in extending the time for payment because the failure of the plaintiffs respondents to deposit the amount in terms of the trial court 's decree would result in pre emptors ' suit standing dismissed by reason of default in not depositing pre emption price.
It was only if the plaintiffs respondents had paid the decretal amount within the time granted by the trial court or if the plaintiffs respondents had obtained another order from the lower appel late Court granting any order of stay that the lower appel late court might have considered the passing of appropriate order in favour of pre emptors.
A Full Bench of the Punjab and Haryana High Court in Labh Singh & Anr.
vs Hardayal and Anr., (supra) held on the facts of that case as no prayer was made by the appellant to the Court for verification of the pre emption amount and the amount which was to be deposited, was mentioned in the application along with the challan in duplicate and the amount so mentioned was ordered to be deposited, it was not the responsibility of the Court to verify from the record and to direct the pre emptor to deposit the amount as men tioned in the decree.
It was a different matter if a liti gant sought the assistance of the Court and while giving such assistance, because of the mistake of the Court, less amount was deposited.
The Court observed that a litigant may not be allowed to suffer for the mistake of the Court but it could not be held that it was the duty of the Court in every case to verify the actual amount mentioned in every decree to be deposited.
In that case appellant Labh Singh obtained pre emption decree on May 27, 1971 and a direction to pay Rs.28,881.50 less 1/5th pre emption amount already deposited by 10th July, 1971 and the appellant deposited Rs.23,48 1.50 on 7th July, 1971.
Obviously there was short payment of Rs.200.
The vendees filed an appeal against the decree on 7th June, 1971 and prayed for stay of dispossession during the pendency of the appeal, which was allowed on 8th June, 1971 by the first appellate Court but that appeal was dis missed on 18th August, 1972 whereafter the appellant filed application for execution of the pre emption decree and was put in possession of the land on 2nd December, 1971 and when the vendees were to withdraw the amount they found the shortage of Rs.200 and applied for restitution of possession of the land which was allowed by the Executing Court on 15th June, 1974 and the same order was affirmed by the first appellate Court on 10th January, 1975.
The appeal therefrom having been referred to full Bench which held as above.
The Full Bench distinguished Dattaraya decision observing that in a given case if the Appellate Court while deciding the appeal extends the time for depositing the pre emption money no exception could be taken if the amount was 29 thus deposited by the time extended but no such order admit tedly was passed in that case nor the amount had been depos ited till the date of the judgment.
It also distinguished the decision in Jang Singh vs Brijlal & Ors., (supra), on the facts that the clerk of the Court made a mistake in making a report and consequently the pre emption amount deposited by the plaintiff was less by rupee one.
Jogdhayan vs Babu Ram & Ors.
, ; , also is a case of failure to deposit a fraction of the decretal amount.
The appellant obtained a pre emption decree and deposited a sum of Rs. 15,500 at the purchase price and Rs. 100 as the registration charges and other expenses of the deed.
The respondents ' appeal therefrom was dismissed by the Additional District Judge with the modification directing the appellant to deposit a sum of Rs. 1836.25 more in the trial court for payment to the vendee within 15.4.1967; in case of failure the suit would stand dismissed.
On 14.4.1967 the appellant deposited Rs. 1836 only instead of Rs. 1836.25.
He, however, made good the short deposit of 25 paise on 28.10.1968 with the permission of the Court aver ring that the omission to deposit 25 paise was due to bona fide mistake.
The vendee 's appeal was dismissed by the High Court with a direction to the appellant to deposit within 3 months time a further sum of Rs.500 for the improvements made to the land and the appellant deposited that sum within time.
Before the Executing Court the respondentvendee filed the application under Order 20 Rule 14(1)(b) contending that the short deposit of 25 paise within 15.4.1967 amounted to deemed dismissal of the suit itself and that the default could not be condoned.
The Executing Court having overruled the objections, the Judgment debtor 's appeal therefrom was accepted by the Additional District Judge holding that Order 20 Rule 14(1)(b) CPC was mandatory and the short deposit was not due to bona fide mistake and hence the default could not be condoned.
The appellant 's second execution appeal before the High Court was dismissed on the ground of limitation.
On appeal by special leave, this Court held that the admitted position was that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited but beyond time.
The Executing Court held that the short deposit of 25 paise was due to the bona fide mistake while the executing appellate Court held that it was not due to any bona fide mistake, but it was a de fault and thereby the executing appellate Court deprived the decree holder of the legitimate fruits of the decree he obtained in all the Courts.
The finding of the first execut ing appellate Court that the non deposit could not be due to any bona fide mistake, was absolutely 30 untenable for the reason that while the appellant had depos ited in total Rs. 17,936.00 from time to time as directed by the Courts, there was absolutely no reason as to why they would not have deposited 25 paise unless it was due to a mistake.
This was pre eminently a case in which the first execution appellate Court ought to have exercised its dis cretionary powers under Section 148 CPC and accepted the delayed deposit of 25 paise, as was done by the original Executing Court.
The appeal was accordingly allowed, the Orders of the High Court as well as the first execution appellate Court were set aside and the Order of the original executing Court was restored.
In Jogdhayan vs Babu Ram & Ors., (supra) this Court considered the provision of section 148 CPC qua 0.20 r. 14 CPC and held that the appellate Court could have exercised the power as was done by the lower Court.
section 148 deals with enlargement of time and provides: "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
" This section empowers the Court to extend the time fixed by it even after the expiry of the period originally fixed.
It by implication allows the Court to enlarge the time before the time originally fixed.
The use of the word 'may ' shows that the power is discretionary, and the Court is, therefore, entitled to take into account the conduct of the party praying for such extension.
From the above decisions one could distinguish the cases of non deposit of the whole of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non deposit of the decre tal amount consequent upon a stay order granted by the appellate Court.
In the first category of above cases the provisions of 0.20 r. 14(1) would be strictly applicable the provision being mandatory as was held in Naguba 's case (supra).
In the second category of above cases, it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby as were the cases in Duttaraya (supra) and Jogdhayan (supra).
31 In the third category of eases, namely, non deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has the discretion under Section 148 CPC to extend the time even though the time fixed has al ready expired provided it is satisfied that the mistake is bona fide and was not indicative of negligence or inaction as was the case in Jogdhayan, (supra).
The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the Court applying the maxim 'actus curiae neminem gravabit an act of the Court shall prejudice no man, as was the case in Jang Singh (supra).
While it would be necessary to consider the facts of the case to determine whether the inadvertent mistake was due to any action of the Court it would be appropriate to find that the ultimate permission to deposit the challaned amount is that of the Court.
Proceeding as above, in the instant case we find that the decree did not quantify the purchase money having only said "Rs.41,082 less the amount of 'Zare Panjum".
Of course, 'certum est quod certum reddi potest ' that is certain which can be rendered certain.
The amount of 'Zare Panjum ' was not specified.
Parties do not controvert that it was 1/5th.
But the amount was not calculated by the Court itself.
Inadvert ent error crept in arithmetical calculation.
The deficit of Rs. 100 was a very small fraction of the total payable amount of Rs.33,682 which was paid very much within the fixed time, and there was no reason, except for the mistake, as to why he would not have paid this Rs. 100 also within time.
The appellants ' application with the challan annexed was allowed by Court officials without pointing out the mistake.
The amount was deposited and even possession of the property was delivered to the appellant.
The Senior Subordi nate Judge allowed the application made by the appellant in exercise of the discretion vested in him apparently on the view that sufficient cause had been made out for non deposit of Rs. 100.
This order, however, as seen above, was set aside by the High Court in a civil revision under section 115 C.P.C.
The question which comes in the forefront is whether any case was made out for interference by the High Court in its revisional jurisdiction under section 115 CPC with the order of the Senior Subordinate Judge.
The scope of section 115 CPC has been the subjectmatter of a catena of decisions of this Court and the law by now is so well settled that we do not find it necessary to make any detailed reference of those cases.
We find it sufficient to refer to the leading case on the point in Keshardeo Chamria vs Radha Kissen Chamria and 32 Others, [1953] SCR page 136 where it was held that Section 115 CPC applies to matters of jurisdiction alone, the irreg ular exercise or nonexercise of it or the illegal assumption of it, and if a subordinate court had jurisidiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has no power to interfere, however profoundly it may differ from the conclusions of that court on questions of fact or law.
Consequently, the High Court had jurisdiction to inter fere with the order of the Senior Subordinate Judge only (i) if the said Judge had no jurisdiction to make the order it has made, and (ii) had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision.
If neither of these conditions was met the High Court had no power to interfere, however profoundly it may have differed from the conclusion of the Senior Subordinate Judge on questions of fact or law.
Coming to the question as to whether the Senior Subordinate Judge had jurisdiction to make the order made by him it may be pointed out that section 148 CPC, as seen above,conferred ample jurisdiction on him in this regard.
Apart from the cases cited above in support of the proposi tion we may refer to a Full Bench decision of the Allahabad High Court succinctly laying down the law on the point in Gobardhan Singh vs Barsati, [1972] A.L.J. page 169.
Relying on a decision of this Court in Mahanth Ram Das vs Ganga Das, [1961] 3 SCR page 763 it was held: "Even in cases where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dis missed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made after the expiry of the time fixed.
It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers jurisdiction on the Court.
The Court possesses the jurisdiction under Sec.
148 CPC to enlarge the time and the application merely invokes that jurisdiction.
" In Ganesh Prasad Sah Kesari and Another vs Lakshmi Narayan Gupta, [1985] 3 SCC page 53 it was held: 33 " . . where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so.
Section 148 of the Code of Civil Procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
The princi ple of this section must govern in not whit tling down the discretion conferred on the court.
" In this view of the matter there seems to be no manner of doubt that the Senior Subordinate Judge had jurisdiction to extend the time under section 148 CPC on sufficient cause being made out.
The first condition precedent to enable the High Court to exercise its revisional jurisdiction under section 115 CPC was, therefore, lacking.
Likewise, nothing has been brought to our notice on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have affected the ultimate decision.
That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however, profoundly it may have differed from the conclusions of that Judge on ques tions of fact or law.
On the facts and circumstances of the case we feel justified in allowing this appeal, setting aside the im pugned judgment of the High Court, and in restoring that of the Senior Subordinate Judge allowing 10 days time to depos it the balance of Rs. 100 exercising power under section 148 CPC on facts of the case.
If the amount has not already been deposited, it shall be deposited within 30 days from today and the respondents shall withdraw the same according to law.
The appeal is accordingly allowed, but under the facts and circumstances of the case, without any order as to costs.
R.S.S. Appeal allowed.
[/INST]The appellant 's claim to pre emption was decreed by the Senior Subordinate Judge in his favour.
The pre emption decree specified 31.12.1975 as the day on or before which the purchase money was to be paid into Court.
But the exact amount to be paid was not specified; it only said Rs.41,082 "less the amount of Zare Panjum" which the parties admit to be 1/5th.
Thus only 4/5th of the amount was to be paid.
Subsequently it was reported by the office that the amount deposited fell short of the decretal amount by Rs. 100.
Thereupon, the appellant decree holder filed an application praying for condonation of delay and for permission to deposit the balance of Rs. 100 stating that there was an inadvertent arithmatical mistake on his part, as also on the part of the Court officials.
The Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit" condoned the delay holding that the mistake of the decree holder was shared by the Court.
The High Court, however, allowed the respondent 's review petition filed under section 115 CPC., and held that the decree holder himself filed the applica tion annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials.
Before this Court it was inter alia contended on behalf of the appellant that the Senior Subordinate Judge having exercised power within his jurisdiction under section 148 CPC in extending the time to deposit the deficit amount of Rs. 100, the revisional court mis directed itself in holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount.
On behalf of the respondents it was contended that the challan having been prepared by the decree holder himself, there was no mistake on the part of any Court official in accepting short deposit, and the 18 High Court rightly held that the appellant 's suit stood dismissed because of non deposit of the decretal amount within time, and thereafter there was no question of exten sion of any time for depositing the same.
Allowing the appeal, this Court, HELD: (1) There is no doubt that where the Court decrees a claim to pre emption and the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non payment, the suit shall be dismissed under order XX Rule 14(1) CPC.
[22H] (2) While mere filing of an appeal does not suspend a pre emption decree of the trial Judge a stay order passed by the appellate court may suspend it in the manner ordered therein.
[28B] Naguba Appa vs Namdev, AIR (1954) SC 50 and Dattaray vs Shaikh Mahboob Shaikh Ali; , , referred to.
(3) One could distinguish the cases of non deposit of the whole of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non deposit of the decretal amount consequent upon a stay order granted by the appellate Court.
[30G] (4) In the first category of above cases the provisions of 0.20 r.14(1) would be strictly applicable, the provision being mandatory.
[30G] Naguba Appa vs Namdev, AIR (1954) SC 50, referred to.
(5) In the second category of above cases, it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby.
[30H] Dattaraya vs Shaikh Mahboob Shaikh Ali, ; and Sulleh Singh vs Sohan Lal, ; , referred to.
(6) In the third category of cases, namely, non deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has 19 the discretion under section 148 CPC to extend the time even though the time fixed has already expired provided it is satisfied that the mistake is bona fide and was not indica tive of negligence or inaction.
[31A B] Jogdhayan vs Babu Ram & Ors.
, ; , referred to.
(7) The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the court applying the maxim 'actus curiae nominem gravab it ' an act of the court shall prejudice no man.
While it would be necessary to consider the facts of the case to determine whether the inadvertent mistake was due to any action ' of the Court, it would be appropriate to find that the ultimate permission to deposit the channeled amount is that of the court.
[31B C] Jang Singh vs Brijlal & Ors., ; and Labh Singh vs Hardayal, [1977] 79 Punjab Law Reporter 4 17, referred to.
(8) In the instant case, inadvertent error crept in arithmetical calculation.
The deficit of Rs. I00 was a very small.
fraction of the total payable amount which was paid very much within the fixed time, and there was no reason, except for the mistake, as to why he would not have paid this Rs. 100 also within time.
The appellants ' application with the challan annexed was allowed by Court officials without pointing out the mistake.
The amount was deposited and even possession of the property was delivered to the appellant.
[31D E] (9) There seems to be no manner of doubt that the Senior Subordinate Judge had jurisdiction to extend the time under section 148 CPC on sufficient cause being made out.
[32D] Gobardhan Singh vs Barsati, ; Mahanth Ram Das vs Ganga Das, ; and Ganesh Prasad Sah Kesari vs Lakshmi Narayan Gupta, ; , referred to.
(10) Section 115 CPC applies to matter of jurisdiction alone, the irregular exercise or non exercise of it or the illegal assumption of it.
The High Court had therefore jurisdiction to interfere with the order of the Senior Subordinate Judge only (i) if the said Judge had no juris diction to make the order it has made, and (ii) had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision.
The first condition precedent to enable the High Court to exercise its revisional jurisdiction under section 115 CPC was lacking.
Likewise, nothing has been 20 brought out on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have effected the ultimate decision.
That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however profoundly it may have differed from the conclusion of that Judge on questions of fact or law.
[32A; C; 33D E] Keshardeo Chamria vs Radha Kissen Chamria & Ors., ; , referred to.
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<s>[INST] Summarize the judgementAppeals Nos.
484 to 489 of 1958.
Appeals by special leave from the judgement and order dated August 6, 1954, of the U.P. Board of Revenue, Allahabad, in petitions Nos.
203 to 208 of 1947 48.
G. C. Mathur, for the appellants.
M. L.Agarwala, for the respondents (in.
C. As.
484 &485 of 1958) and respondent No.3 (In C.A No. 488.
of 1958).
August 31.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
These appeals, by special leave, against the orders of the Board of Revenue, Utter Pradesh, arise in the following circumstances : The appellants presented applications against each set of the respondents in these six appeals under s.175, U.P. Tenancy Act, 1939 U.P. XVII of 1939, hereinafter called the Act, for ejectment stating that they were the sir bolders of the land occupied by the respondents as non occupancy tenants and that the period of five years during which the respondents were entitled to retain possession under s.20 of the Act had expired.
The respondents contested the notice of ejectment alleging that the land in suit was not air, that the appellants were not sir holders, that appellants paid local rate exceeding Rs. 25/ in the United Provinces, Agra and Oudh, and held more than 50 acres of sir land.
They claimed to be hereditary tenants of the land in dispute, in accordance with sections 14, 15 and 16 of the Act.
The paper were thereafter forwarded by the Tehsilder to the Assistant Collector in charge of the sub division, in accordance with the provisions of section 179 of the Act 907 The applications which were presented for the ejectment of the respondents were deemed to be plaints and the proceedings continued as suits, in view of sub section
(2) of a. 179 of the Act.
The Court called upon the appellants to file necessary extracts of papers and to join all tenants of air as parties.
The sub Divisional Officer did not accept the contention of the respondents and decreed the suits on February 28, 1946, holding that the land in suit was air, that the appellants were air holders, that each of them did not pay a local rate exceeding Rs. 25/ either in 1938 or in 1940, that he did not hold more than fifty acres of air land or more than fifty acres of air and khudkasht land which had not been sublet in 1317 F., corresponding to the period from July 1, 1939 to June 30,1940.
The respondents appealed against the decree to the Additional Commissioner, Benaras, and repeated their contentions which had not found favour in the Trial Court.
They also contended that the appellants had not complied with the requirements of s, 19 of the Act as amended by the U.P. Tenancy (Amendment) Act, 1947 (U.P. X of 1947) which came in to force on June 14.
1947 after the appeals had been instituted.
The Additional Commissioner confirmed the findings of the Sub Divisional Officer and further hold that there had been substantial compliance with the spiritof the law as laid down in the amended a. 19 of the Act.
He accordingly dismissed the appeals.
The respondents then instituted second appeals in the Board of Revenue.
The Board of Revenue did not agree with the additional Commissioner about there having been sufficient compliance with the provisions of amended a. 19 of 908 the Act and of the rules framed thereunder.
It therefore set aside the decree against the respondents and remanded the cases for fresh disposal in accordance with law and further directed the Trial Court to decide the further contention raised by the respondents before the Board to the effect that they had acquired adivasi rights in the land in suit after the coming into force of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. 1 of 1951).
It is against these orders of the Board of Revenue that these six appeals have been filed after obtaining special leave from this Court.
It appears that there was no particular procedure laid down for the progress of the proceedings in the suit before the Sub Divisional Officer after the papers had been sent to him in accordance with the provisions of section 179 of the Act.
The ordinary procedure for the conduct of suits was followed.
The Sub Divisional Officer therefore called upon the appellants to file necessary extracts of documents.
Naturally evidence had to be led, documentary or oral, to substantiate the allegations made by the parties and, especially by the appellants, who bad to prove their right to eject the respondents.
They had to prove that the land in suit was sir and that they were sir holders.
Section 6 of the Act defines `sir '.
This section reads: "Sir" means (a) land which immediately before the commencement of this Act was air under the provisions of the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886: Provided that if at the commencement of this Act, the sir holder is assessed in the United Provinces to a local rate of more than 909 twenty five rupees, land which was sir, under the provisions of clause (d) or clause (e) of Section 4 of the Agra Tenancy Act, 1926, or of clause (c) or clause (d) of sub Section (17) of Section 3 of the Oudh Rent Act, 1886, ,shall on this Act coming into force cease to be sir unless it was (i)before the first day of July, 1938, received otherwise than in accordance with the provisions of Section 122 of the United Provinces Land Revenue Act, 1901, or (ii)before the commencement of this Act, received in accordance with the provisions of that section, in exchange for land which was sir under the provisions of clause (a) or clause (b) or clause (c) of Section 4 of the Agra Tenancy Act, 1926, or of clause (a) or clause (b) of sub Section (17) of Section 3 of the Oudh Rent Act, 1886.
Provided further that the provisions of the first proviso shall apply to a sir holder who was not at the commencement of this Act assessed in the United Provinces to a local rate of more than twenty five rupees if be or his predecessor in interest was so assessed on the 30th June, 1938 unless the local rate assessed on him has been decreased by resettlement or by revision of settlement or unless since that day he obtained his sir rights by succession or survivorship Provided also that if the land to which the provisions of the first proviso apply was joint air of several air holders and all, such joint air holders are not air holders to whom such provisions apply, such land shall not 910 cease to be sir at the commencement of this Act, but shall remain sir until that portion of it which is the sir of those joint holders to whom such provisions apply is demarcated under the provisions of this Act; (b) land which was khudkasht and which is demarcated as sir under the provisions of this Act.
Explanation If any portion of the land revenue assessed on the sir holder 's land has been remitted owing to a fall in the price of agricultural produce, the local rate payable by him shall, for the purposes of this section, be deemed to have been reduced in the same proportion.
" It follows from these provisions that the appellants bad to establish the following facts : (i) The land in suit was `sir ' on January 1, 1940, when the Act came into force.
(ii) Each sir holder was not assessed in the United Provinces to a local rate of more than Rs. 25/ .
(iii) The sir holder or his predecessor in interest was not assessed to a local rate exceeding Rs. 25/ on June 30, 1938.
The appellants proved these facts and the trial Court held that the land in suit did not cease to be 'sir '.
Further, if the finding had been that the first proviso to section 6 applied, section 16 would have come into play and it would have been necessary for the Court to determine whether each of the sir holders possessed more than fifty acres of sir or of sir and khudkasht land which had not been let.
On this point too, the finding of the Trial Court, however, is that each sir holder bad less than fifty acres of sir and khudkasht land.
Section 19 of the Act, before its amendment, in 1947, provided that if a sir bolder could apply under the provisions of B. 15 or 16 of the Act, the 911 Court was to take action under those sections.
The amended section also repeated these provisions in its sub section
Its sub sections
(1) and (2) were, however new and read as follows. "(1) In a suit or proceeding for the ejectment of a tenant of sir the sir holder shall before the first date fixed for recording evidence,furnish to the court such particulars as the Board may by rule made in this behalf prescribe for ascertaining ' (a) whether the sir holder is a person to whom the provisions of the first proviso to clause (a) of Section 6 apply; and (b) the total area and nature of the sir holder 's air and.
khudkasht: Provided that if the sir holder satisfied the Court that he had sufficient cause for not filing the particulars before the date fixed, it way, subject to the payment of costs to the opposite party, extend the time.
(2)If the.
sir holder does not file the particulars mentioned in sub Section (1) within the time fixed thereunder, or deliberately furnishes inaccurate particulars, the Court shall dismiss the suit or proceeding, as the case may be, and shall declareare the tenant to be hereditary tenant.
" It is tobe noticed I that sub section
(1) requires a air holder tofurnish particulars prescribed by the Board and ' that the purpose of furnishing those particulars 'is to assist the Court in ascertaining whether the provisions of the first proviso to clause (a) of section 6 apply to the sir holder and what is the total area and nature of the sir holder 's sir and khudkasht.
Section 19 ' therefore, did not bring 912 about any real change in the substantive law affecting the question whether certain land is `sir ' or not, according to the definition of 'sir ' in section 6 of the Act.
After the amendment, a sir holder, in order to succeed in his suit, had to establish the same facts which he had to establish prior to the amendment, What proof he had to lead to support his case, he has to give even after the amendment.
The only difference brought about by the amendment is in the procedural conduct of the suit and is that prior to the amendment the sir holder had simply to lead evidence to prove his case, without informing the Court before hand about the material on which he would rely to establish that the provisions of the proviso (a) of section 6 did not apply to him and in case they applied how effect would be given to the provisions of s 16.
The amended Section made it incumbent on the sir bolder to furnish such information to the Court and thereby to the tenant before the parties proceeded to lead evidence.
Such information has to be furnished according to sub section
(1) of amended section 19, before the first date fixed for recording evidence.
The time for furnishing such information can be extended under the proviso to that sub section.
Great importance however, has been attached to the new provision as sub section
(2) of amended s.19 provides that the consequences of not filing those particulars, or filing those particulars inaccurately, would be that the Court shall dismiss the suit or proceeding and also declare the tenant to be a hereditary tenant.
Now, it is contended for the appellants, that the provisions of amended s.19 do not apply to the facts of this case as the amended section was enacted long after the first date of recording evidence and that therefore it could not have been possible for the appellant to furnish the necessary particulars in accordance with its provisions and that if its provisions apply to the facts of this case 913 the appellants have substantially complied with those provisions inasmuch as they had actually filed in Court documents which gave the necessary particulars required under rr.
239A and 239B made by the Boara of Revenue under s 19.
The contention for the respondents is that amended section 19 is retrospective in view of the provisions of section 31 of the Amendment Act of 197 and that the appellants had not complied with requirements of section 19 (1) and rules framed thereunder.
The aforesaid section 31 reads : "Disposal of pending suits and appeals (1)All proceedings, suits; appeals and revisions pending under the said Act on the date of the commencement of this Act and all appeals and revisions filed after that date against orders or decrees passed under that Act and all decrees and 'orders passed there under which have not been satisfied in full, shall be decided or executed, as the case may be, and where necessary such decrees and orders shall be amended, in accordance with the provisions of the said Act as amended by this Act: Provided firstly that if such a decree or order cannot be so amended, or the execution of or the appeal or revision from such an amended decree or order cannot be proceeded with, it shall be quashed.
In such a case the aggrieved party shall, notwithstanding any law of limitation be entitled to claim, within six months from the date on which such decree or order is quashed such rights and remedies as he had on the date of the institution of the suit or proceedings in which such decree or order was passed, except in so far as such rights or remedies are, inconsistent with 914 the provisions of the said Act as amended by this Act: Provided secondly that the proceedings under Section 53 between a landlord and his tenant and all proceedings under section 54 shall be quashed: Provided thirdly that appeals and revisions arising out of the proceedings under Section 53 between a landholder and his tenant or out of those under section 54 shall be so decided as to place the parties in the same position in which th ey were immediately before the institution of such proceedings Provided fourthly that all suits, appeals and revisions pending under Section 180 of the said Act, on the date of the commencement of this Act for the ejectment of any person who was recorded as an occupant on or after the first day of January, 1938, in a record revised under Chapter IV of the United Provinces Land Revenue Act, 1901, or corrected by an officer specialty appointed for the correction of annual registers in any tract shall be dismissed, and all decrees and orders for the ejectment of such persons, which have not been satisfied in full on the date of the commencement of this Act shall be quashed .
Provided fifthly that nothing in this subsection shall affect the forum of appeal or revision from a decree or order passed by a Civil Court under the said Act.
(2)In counting the period of limitation in respect of an application for the execution of a decree or order which was passed under the said Act and the execution of which was 915 stayed pending the enactment of this Act, the period during which execution was so stayed shall be excluded.
" In view of this section, the appeals which.
were pending before the additional Commissioner when the amendment Act came into force bad to be decided in accordance with the provisions of the Act as amended.
It has been stated above that no change in the substantive law affecting the rights of the parties has been brought about by the Amendment Act.
The only provision which could affect the rights of the parties is contained in sub s.(2) of amended s.19 and provides the consequences of the failure of the sir holder to furnish the necessary particulars.
It follows therefore that if the necessary particulars had been furnished in this case even prior to the Amendment Act coming into force, there could be no difficulty in deciding the appeals by the Additional Commissioner in accordance with the provisions of the Act as amended by the Amending Act.
This is exactly what the Additional Commissioner did.
He held that subs tantial compliance has been made with the provisions of the amended section and the rules framed thereunder.
The Board of Revenue is itself of the opinion that if substantial compliance bad been made of those provisions that would have been sufficient.
It however did riot agree with the Additional Commissioner 's view that the appellants had sufficiently complied with the provisions of amended s.19 aid the rules framed thereunder.
We are of opinion that in this the Board of Revenue was wrong.
Rules 239A and 239B framed by the Board are: "239A.
In a suit or proceeding for the ejectment of a tenant of sir, the sir holder shall before the first date fixed for recording 916 evidence, furnish to the Court the following particulars: (1)The amount of local rate to which the sir holder was assessed on 1st January, 1940, in the United Provinces.
(2) If the amount shown under the preceding subclause (1) is Rs. 25, or less, then (a) the amount of local rate to which the sir holder or his predecessor in interest was assessed on June 30, 1938.
(b)Whether the local rate assessed on 30th June, 1938, was decreased before 1st January, 1940, as a result of resettlement or revision 'of settlement, and if so, the amount by which it was decreased; (c)Whether the sir holder obtained his sir rights by succession or survivorship between 30th June, 1938, and 1st January, 1940.
(1)The area and khasra numbers of the plots, if any, held by him in severally or jointly with others, on 31st December, 1939, as sir in the United Provinces under the provisions of clause (d) or clause (e) of section 4 of the Agra Tenancy Act 1926, or of clause (c) or clause (d) of sub section (17) of section 3 of the Avadh Rent Act, 1886.
(2) Such of the plots, if any shown under the preceding sub clause (1) along with their areas, as were received by him in exchange for the land which was his sir under the provi sions of clause (a) or clause (b) or 917 clause (c) of Section 4 of the Agra Tenancy Act, 1926, or clause (a) or clause (b) of, subsection (17) of the Avadh Rent Act, 1886 (a) before the first day of July 1938 otherwise than in accordance with the provisions of Section 122 of the United Provinces Land Revenue Act, 1901, or (b) before the first day of January, 1940, in accordance with the provisions of that section.
(3) The area and: khasra numbers of the plots, if any, held by him in severally or jointly with others and khudkasht in the United Provinces, along with the period of cultivation and nature of khudkasht of each such plot.
(4) The extent of his share in the joint air and khudkasht, if any shown under the preceding sub clauses (1) and (3).
The particulars furnished in accordance with rule 239A shall be accompanied by the following documents: (1) If the local rate payable by the sir holder in the United Provinces is claimed to be Rs.25 or less, copies of the khewat khatas of 1345 Fasli and of 1347 Fasli, in which he was recorded as a co sharer; 918 (2) a certified copy of the khatauni khatas of his air and khudkasht; (3) a certified copy of the khewat to which such sir or khudkasht appertains, unless such copy is filed under sub rule (1); (4) a list giving the amount of local rate to which each co sharer of the sir holder in the joint sir and khudkasht, if any, is assessed; (5) in the case of sir or khudkasht of a joint Hindu family, a genealogical table and a list showing the share of each living member of the family having an interest in such sir or khudkasht and the share of local rate which each member would be liable to pay on ratable distribution.
" The documents filed by the appellants in the Trial Court consisted of (1) khewats of the various villages for the years 1345, 1346 and 1347 Fasli, i.e. for the periods between July 1, 1937 to June 30, 1940 (2) khatauni jamabandis of the various villages for the years 1345 and 1347 Fasli, corresponding to July 1, 1937 to June 30, 1938 and July 1, 1939 to June 30, 1940, respectively; (3) (a) a statement showing the shares of the appellants as recorded in the khewats and khataunis of 1347 Fasli, this statement showed the total of the air area held by the appellants to be 152.33 acres, their khudkasht area to be 19.93 acres and the total of the local rate payable by them to be Rs. 75.5.11; (b) a statement showing the air, khudkasht and local rate of each plain in 1317 Fasli.
This shows that none of them held sir or sir and khudkasht in excess of 50 919 acres, or was assessed to local rate exceeding Rs. 25/ (4) Copy of the pedigree.
These documents clearly furnish the particulars required by the rules as the periods covered by these documents include June 30, 1938, December 31, 1939 and January 1, 1940.
Rule 239AI required particulars regarding the amount of local rates on June 30, 1938 and January 1, 1940 and also about sir holders ' obtaining sir rights by succession or survivorship during the period.
The particulars required under sub rules (3) and (4) of rule 239AII were available from these documents.
Rule 239B required copies of the khewat khatas of 1345 Fasli and of 1347 Fasli; certified copies of khatauni khatas of sir and khudkasht; certified copies of the khewats to which that sir or khudkasht appertained; a list giving the amount of local rate to which each co sharer of the sir holder was assessed and a genealogical table in the case of sir or khudkasht of a joint Hindu family showing the share of each living member of the family.
The only particulars which can possibly be not had directly from the documents on record are those required by sub rules (1) and (2) of rule 239AII.
These require particulars about such sir which was the sir of the appellants under the provisions of cls.
(d) and (e) of s.4 of the Agra Tenancy Act, 1926 i.e., land which became sir on account of the landlord 's cultivation at the commencement of that Act, i.e., on September 7, 1926, and had been recorded as khudkasht in the previous agricultural year, i.e, in 1333 Fasli, or land which became air on account of the landlord 's continuously cultivating it for a period of ten years subsequent to the enforcement of the Agra Tenancy Act.
It is clear from the findings of the Trial Court that the land in suit had been sir from the time of 920 the settlement, presumably, the first settlement, which took place in the Nineties of the last Century.
This seems to be based on the fact that khatauni jamabandhis of 1345 and 1347 Fasli did not record a period of cultivation against the sir entry, indicating thereby that the sir is not of the kind mentioned in cls.
(d) and (e) of s.4 of the Agra Tenancy Act, 1926.
The Trial Court could and did record findings on all the facts which had to be proved by the appellants to establish their case.
The first Appellate Court confirmed them.
The particulars required by sub section
(1) of amended section 19 of the Act and the rules framed thereunder, were for the purpose of ascertaining those facts.
In the circumstances it is reasonable to hold that there had been substantial compliance with the provisions of amended section 19 and the rules framed thereunder.
The Board of Revenue was therefore in error in stating that the appellants had not given the amount of local rate to which they were assessed in U.P. on January 1, 1940, and that compliance did not appear to have been made of rule 239AII of the Revenue Court Manual and that there had not been sufficient compliance with the mandatory provisions of rules 239A and 239B.
From the judgment of the Board it is clear that its attention was not drawn to the several relevant documents filed by the appellants in the trial Court.
We have no doubt that if the Board had considered the said document it would not have held that section 19 had not been substantially complied with.
We therefore hold that the Board of Revenue was in error in setting aside the decree of the Additional Commissioner and remanding the case for fresh trial on the ground that there had not been compliance with the provisions of amended section 19 of the Act and the rules framed thereunder.
921 We accordingly allow the appeals, set aside the order of the Board of Revenue and remand the cases to it for decision in accordance with law.
We further direct it to decide itself the contention raised by the respondents about their having acquired adivasi rights under the U.P. Zamindari Abolition and Reforms Act.
In case the Board takes the view that for deciding the said issue any finding of fact is necessary, it.
may call for the said finding from the Trial Court and, on receiving it, proceed to deal with the appeals on the merits.
In the circumstances of these cases, we direct that the parties on either side bear their own costs.
Appeals allowed.
[/INST]The appellants filed suit under the U.P Tenancy Act, 1939.
for the ejectment of the respondents who were tenants of sir.
The appellants filed the necessary extracts of papers in support of their case.
The trial court decreed the suits 905 holding the land in suit was sir, that the appellants were sirholders, that each of them did not pay a local rate exceeding Rs 25, that he did not hold more then 50 acres of sir land or more than 50 acres of sir and khudkast land which had not been sublet and that the respondents had not become hereditary tenants.
The respondents preferred appeals before the Commissioner.
During the pendency of the appeals the U.P Tenancy (Amendment) Act.1947, amended s.19 of the Act Amended section 19 provided that in suits for ejectment of tenants of sir the sir holder shall, before the first day fixed for recording evidence, furnish such particulars as may be prescribed and further provided that for failure to file such particulars the suit shall be dismissed.
Section 31 of the Amending Act provided that its provision shall apply to pending suits, appeals etc.
The respondents contended that the appellants had failed to comply with the provisions of amended section 19 and that the suits should be dismissed.
The Commissioner confirmed all the findings of the trial court and held that there had been sufficient compliance with the provisions of amended section 19 and according dismissed the appeals.
The respondents preferred second appeals before the Board of Revenue.
The Board held that the provisions of amended section 19 and of the rules framed thereunder had not been complied with and remanded the case to the trial court for compliance therewith and retrial.
Held, that there had been sufficient compliance with the provisions of amended section 19 and the rules framed thereunder and that the Board was riot justified in remanding the cases for retrial.
Section 19 did not bring about any real change in the substantive law affecting the question whether land was sir or not.
Even after the amendment, a sir holder, in order to succeed in his suit, had to establish the same facts which he had to establish prior to the amendment.
The only difference brought about by the amendment was in procedure and whereas prior to the amendment a sir holder could lead his evidence without informing the Court before hand about the material he would produce, after the amendment it was incumbent upon him to furnish such information to the Court before the date fixed for recording evidence, The necessary particulars had been furnished even prior to the amendment and the Commissioner could decide the appeals in accordance with the provisions of the Act as amended by the amending Act.
The attention of the Board was not drawn to the relevant documents filed by the appellants and it erred in stating that there had been no substantial compliance with the provisions of amended section 19 and of the rules framed thereunder.
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<s>[INST] Summarize the judgementivil Appeal No. 2378 of 1977.
804 From the Judgment dated 3.2.1977 of the Gujarat High Court in Special Civil Application No. 551 of 1972.
B. Datta, L.B. Kolekar, Ms. Chetna Anand and P.H. Parekh (NP) for the Appellant.
S.K. Kholakia, R.B. Haribhakti and P.C. Kapoor (NP) for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The facts relevant to the controversy are as under: The appellant had taken on lease, about 55 years ago, an extent of 2 acres, 6 gunthas of agricultural lands situated in Akote village from Vishwas Rao.
The Bombay Tenancy and Agricultural Lands Act 67 of 1948 for short `the Act ' applies to the lease.
By operation of section 32(1) the appellant became a deemed purchaser from tillers ' day i.e., April 1, 1957.
Section 32 G provides the procedure to determine purchase price.
Since the landlord was insane, the right to purchase was statutorily deferred under section 32 F till date of its cessation or one year after death.
Under section 88(1)(b) of the Act certain areas abutting Baroda Municipality were notified as being reserved for non agricultural or industrial purpose with effect from May 2, 1958.
By another notification published in the Gujarat State Gazette dated July 2, 1964, certain lands including those situated in Akote and of the appellant 's lease hold lands were reserved for industrial purpose.
Consequently Ss. 1 to 87 of the Act do not apply to the exempted area.
While the landlord was continuing under disability, his son Vasant Rao sold the land to the respondent under registered sale deed dated August 19, 1964.
By another notification under Section 88(1)(b) published in the Gazette dated October 29, 1964, the Government restricted the operation of the exemption to the area originally notified on May , 1958 i.e., Ss. 1 to 87 do not apply to the lands in question.
This notification was rescinded by further notification published in the Gazette dated August 23, 1976.
The Bombay Tenancy and Agricultural Lands(Gujarat) Amendment Act 36 of 1965, section 18(1) and 18(2) thereof introduced two provisos to section 88(1)(b) of the Act which was published in the Gazette on December 29, 1965 which are relevant for purpose of the case.
Section 88(1)(b) with amendments reads thus: "(1) Save as otherwise provided in sub section (2) 805 nothing in the following provisions of this Act shall apply (a) to lands belonging to, or held on lease form the Government; (aa) to lands held or leased by a local authority; (b) to any area which the State Government may, from time to time, by notification in th official Gazette, specify as being reserved for non agricultural or industrial development; Provided that if after a notification in respect of any area specified in the notification is issued under this clause, whether before or after the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965, the limits of the area so specified are enlarged on account of the addition of any other area thereto, then merely by reason of such addition, the reservation as made by the notification so issued shall not apply and shall be deemed never to have applied to the area so added, notwithstanding anything to the contrary contained in any judgment, or order of any court, Tribunal or any other authority.
Provided further that if any land in the area so added has been transferred or acquired after the issue of notification referred to in the first proviso but before the 9th day of October, 1964, such transfer or acquisition of land shall have effect as if it were made in an area to which this clause applies".
Vishwash Rao died in September 1965.
The appellant became entitled to purchase the land on and from August 19, 1966.
He filed an application before Mamlatdar to fix the price.
He fixed on enquiry at Rs.4,925.65 paise which was paid by the appellant.
In the enquiry, the respondent contended that he purchased the property from Vasantrao, son of the landlord.
By operation of second proviso to section 88(1)(b) the lands stood exempted from operation of Ss. 1 to 87 of the Act.
So the Mamlatdar had no jurisdiction to decide the 806 price of the land.
The appellant raised the contention that Vasantrao has no right to sell during the life time of the father, the Karta of the Hindu Joint Family.
The sale is invalid and does not bind him.
He acquired statutory right of deemed purchaser and its exemption under section 88(1)(b) does not divest his statutory right.
The Mamlatdar accepted the appellant 's contention and allowed the petition.
On appeal to the Collector and revision to the Revenue Tribunal the decision was reversed.
The Division Bench of the High Court by order dated February 3, 1977 dismissed the writ petition.
The appellant had leave of this Court by article 136.
Thus this appeal.
From these admitted facts the question emerges whether the operation of the second proviso to section 88(1)(b) has retrospective effect depriving the appellant of the statutory right of `deemed purchaser '.
section 88 of the Act empowers the government to exempt certain other lands from the purview of Ss. 1 to 87 of the Act.
The State Government exercised their power from time to time under section 88(1)(b) and issued notification and published in the official Gazette specifying certain areas as being reserved for non agricultural or industrial development i.e., urban development.
Consequently the first proviso gets attracted which say that notwithstanding any judgment or order of any court, tribunal or any other authority under the Act to the contrary, once the notification was issued either before or after commencement of the Amendment Act reserving the area so added for non agricultural or industrial development i.e. expansion for urbanisation, to the extent of the area covered under the first proviso, the provisions of Ss. 1 to 87 were not applied and shall be deemed never to have been applied.
The second proviso which is material for the purpose of the case further postulates that: "Provided further that if any land in the are so added has been transferred or acquired after the issue of the notification referred to in the first proviso but before the 29th day of October, 1964, such transfer or acquisition of the land shall have effect as if it was made to an area to which this clause applies".
(emphasis supplied) What is the effect of the second proviso to the facts is the question? Mr. Dutta, the learned counsel for the appellant contended that the first proviso has the effect of excluding Ss. 1 to 87 of the Act only to those areas which were initially reserved for non agricultural or industrial development and has no application to the land added to it by a 807 subsequent notification though it would become part thereof.
Any alienation in violation of the Act would not attract the operation of the second proviso.
The Act is an agrarian reform which created a vested right in the tenant as a deemed purchaser with effect from Tillers ' day which cannot be divested retrospectively.
The proviso should be construed to inhere in the tenant the vested rights created under the Act.
The Withdrawal of the notification dated Oct. 29, 1964 renders the right of the appellant uneffected.
It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the filed, which is covered by the main provision.
It carves out an exception to the main provision to which it has been enacted by the proviso and to no other.
The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case.
Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.
The scope of the proviso, therefore, it to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule.
It has to operate in the same field and it the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.
The effect of the notification issued under section 88(1)(b) was the subject of consideration in several decisions of this Court.
In Sukharam @ Bapusaheb Narayan Sanas & Anr.
vs Manikchand Motichand Shah and Anr., [196] SCR 59 Sinha, CJ., held that the provisions of section 88 are entirely prospective and apply to such lands as are described in clauses (a) to (d) of section 88(1) from which the Act came into operation, namely, December 28, 1948 and are not a confiscatory in nature so as to take away from the tenant the status of a protected tenant already accrued to him.
In Mohanlal Chunilal Kothari vs Tribhovan Haribhai Tamboli, ; a Constitution Bench speaking through Sinha, CJ. held that Clauses (a) to (c) of section 88(1) applies to things as they were on the date of the commencement of the Act of 1948 whereas clause (d) authorised the State Govt.
to specify certain areas as being reserved for urban non agricultural or industrial development, by notification in the official Gazette, from 808 time to time.
It was specifically provided in clauses (a) to (c) that the Act, from its inception, did not certain areas then identified, whereas clause (d) has reference to the future.
The State Govt, could take out of the operation of the Act such areas as in its opinion should be reserved for urban non agricultural or industrial development.
Clause (d) would come into operation only upon such a notification being issued by the State Govt.
In Sukhram 's case, this Court never intended to lay down that the provisions of clause (d) are only prospective and have no retrospective operation.
Unlike clauses (a) to (c) which are clearly prospective, clause (d) has retrospective operation in the sense that it would apply to land which would be covered by the notification to be issued by the government from time to time so as to take that land out of the operation of the Act of 1948, granting the protection.
(emphasis supplied) So far as clauses (a) to (c) are concerned, the Act of 1948 would not apply at all to lands covered by them, but that would not take away the rights covered by the Act of 1939 which was repealed by the Act of 1948.
Therefore, it was held that by operation of section 89(2) the rights acquired under the Act of 1939 would be available to the tenant.
When a doubt was expressed of the correctness of the above views on reference, another Constitution Bench in Sidram Narsappa Kamble vs Sholapur Borough Municipality & Anr., ; , held at p. 65 thus: "New there is no doubt that section 88 when it lays down inter alia that nothing in the foregoing provisions of the 1948 Act shall apply to lands held on lease from a local authority, it is an express provision which takes out such leases from the purview of sections 1 to 87 of the 1948 Act.
One of the provisions therefore which must be treated as non existent where lands given on lease by a local authority is in section 31. .but the effect of the express provision contained in section 88(1)(a) clearly is that section 31 must be treated as non existent so far as lands held on lease from a local authority are concerned and in effect therefore section 88(1)(a) must be held to say that there will be no protection under the 1948 Act for protected tenants under the 1939 Act so far as lands held on lease from a local authority are concerned . . 809 the appellant cannot claim the benefit of section 31; nor can it be said that his interest as protected tenant is saved by section 89(2)(b).
This in our opinion is a plain effect of the provisions contained in section 31, section 88 and section 89(2)(b) of the 1948 Act".
In Parvati & Ors.
vs Fatehsinhrao Pratapsinhrao Gaekwad, ; the facts were that the Government issued a notification on May 21, 1958 under section 88(1)(b) of the 1948 Act reserving the land within the municipal limits of the city of Baroda for non agricultural and industrial development.
The appellant 's husband had taken possession of certain lands situated in the city of Baroda on lease from the respondent trustee.
The respondent laid the suit against the appellant for recovery of arrears of rent.
The defence was that the suit was not maintainable.
Dealing with the effect of the notification issued under section 88(1)(b), this Court held that the notification had retrospective operation and subject to certain exceptions provided in sub section (2) of section 88 all rights, title, obligations etc.
Accrued or acquired under the said Act ceased to exist.
Therefore, section 89(2)(b) was inapplicable to protect such right, title or interest, acquired under the Act except as provided in s 89A owing to express provision made in section 88 of the Act.
Accordingly it was held that the Civil Court was legally competent to determine the reasonable rent payable by the tenant.
In Navinchandra Ramanlal vs Kalidas Bhudarbai & Anr., ; this court was to consider a case that the notification under section 88(1)(b) was issued on May 30, 1959 by which date the tenant acquired the statutory right of a deemed purchaser with effect from April 1, 1957.
This Court held that the tenant cannot be divested of his deemed purchase by a subsequent notification issued thereunder.
It would be seen that the effect of the second proviso was not considered therein.
The above interpretation would equally apply to the interpretation of the notification issued under the proviso to section 88(1)(b) adding to the area reserved for non agricultural or industrial development.
Its effect is that notwithstanding any judgment or order of any court or Tribunal or any other authority, the provisions of Ss. 1 to 87 shall not apply and shall be deemed never to have applied to such added area as well.
If any land in the newly added area has been transferred or acquired between the date of the notification issued under first proviso and October 9, 1964, such transfer or acquisition of land shall have the effect as if it was made in an area to which the main part of the proviso and section 88(1)(b) would apply.
The necessary consequence would be that the provisions of sections 1 to 87 shall not apply and shall be 810 deemed never to have applied to such added area.
It is implicit that such transfer or acquisition made, to bring within the net of second proviso, must be valid and bona fide one and not colourable, fraudulent, fictitious or nominal.
The Legislature appears to relieve hardship to the bona fide purchasers.
The title acquired by such transfer is not effected by the provisions of the Act.
The Legislature advisedly used the words `acquired or transferred '.
The respondent 's own case is that Vishwesh Rao, Karta of the Hindu Joint Family was under disability due to lunacy.
The tenant acquired statutory right as deemed purchaser under section 32.
The Act, by necessary implication, divests the landlord of his right to alienate the land held by the tenant.
The statutory right topurchase the land under section 32 as deemed purchaser was postponed by operation of section 32 F of the Act till the cessation of the disability or one year after the death of the landlord.
In such situation can the son during the life time of the father, has right to sell the same property to the respondents, and whether such a sale made on August 19, 1964 to the respondents was valid and binds the appellant.
In Raghavachariar 's Hindu Law Principles and Precedents, Eighth Ed., 1987 in section 275 at p. 39 stated thus: "So long as the joint family remains undivided, the senior member of the family is entitled to manage the family properties, and the father, and in his absence, the next senior most male member of the family, as its manager provided he is not incapacitated from acting as such by illness or other sufficient cause.
The father 's right to be the manager of the family is a survival of the patria potastas and he is in all cases, naturally, and in the case of minor sons necessarily the manager of the joint family property.
In the absence of the father, or if he resigns, the management of the family property devolves upon the eldest male member of the family provided he is not wanting in the necessary capacity to manage it".
Regarding the management of the Joint Family Property or business or other interests in a Hindu Joint Family, the Karta of the Hindu Joint Family is a prima inter pares.
The managership of the Joint Family Property goes to a person by birth and is regulated by seniority and the Karta or the Manager occupies a position superior to that of the other members.
A junior member cannot, therefore, deal with the joint family property as Manager so long as the Karta is available except where the Karta relinquishes his right expressly or by necessary impli 811 cation or in the absence of the Manager in exceptional and extra ordinary circumstances such as distress or calamity effecting the whole family and for supporting the family or in the absence of the father whose whereabouts were not known or who was away in remote place due to compelling circumstances and that is return within the reasonable time was unlikely or not anticipated.
No such circumstances are available here to attract the facts of the case.
Vasantrao, the vendor, son of the Karta of the Hindu Joint Family per se has no right to sell the property in question as Manager so long as the father was alive.
When father was under disability due to lunancy, an order from the Court under Indian Lunancy Act IV of 1912 was to be obtained to manager the joint family property.
No proceedings were taken under sections 39, 43 and 45 of the Indian Lunacy Act to have the inquisition made by a competent District Court to declare him as insane and to have him appointed as Manager of the Joint Family.
In P.K. Gobindan Nair & Ors.
vs P. Narayanan Nair & Ors., [1912] 23 M.L.J. 706=17 Indian Cases 473 a division Bench of the Madras High Court held that a guardian cannot be appointed as Manager under the Guardian and Wards Act on an adjudication of Karnavan of an undivided Malabar Tarwad as a lunacy.
In A. Ramacharlu vs Archakan Ananthacharlu & Anr., A.I.R. 1955 A.P. 261 a division Bench consisting of Subba Rao, C.J. and Satyanarayana Raju, J. (as they were) considered the question of appointment of a son as the Manager of the Mitakshara family whose father was alleged to be a lunatic.
Subba Rao, C.J. speaking for the Bench, held that in view of the finding that the Karta, though was mentally not sound, but was capable to manage the property, the application for appointment of a son as manager of the joint family property was not be ordered.
Since Vasantrao did not obtain any order from the competent court under the Lunacy Act to have him appointed as Manager of the joint family to alienate the property, the sale is per se illegal.
The sale, therefore, appears to be to defeat the statutory right of the appellant.
The rigour of the second proviso to section 88(1)(b) is thus inapplicable.
Thereby the right and interest as a deemed purchaser acquired by the appellant has not been effected by a subsequent notification issued under section 88(1)(b).
The High Court, therefore, committed manifest error in holding that the appellant is not entitled to the relief.
The appeal is accordingly allowed and the orders of the High court, The Tribunal and District Collector are set aside and that of the Mamlatdar is confirmed, but in the circumstances parties are directed to bear their own costs.
Y.Lal.
Appeal Allowed.
[/INST]The appellant took on lease some agricultural lands from one Viswas Rao and by operation of Section 32(1) of the Bombay Tenancy and Agricultural Lands Act 67 of 1948, which was applicable to the lease, he became a deemed purchaser from tillers ' day i.e. 1.4.1957.
Since the landlord was insane, the right to purchase was statutorily deferred under section 32 F till date of its cessation or one year after death.
Pursuant to the notification issued under Section 88(1)(b) of the Act, certain lands including those of the appellant 's lease hold lands were reserved for industrial purpose; thereby making sections 1 to 87 of the Act inapplicable to the exempted area.
During the subsistence of disability of the landlord, his son Vasant Rao sold the land to the respondent under registered sale deed.
Vishwas Rao died in September 1965.
The appellant became entitled to purchase the land on and from August 19, 1966.
He therefore filed an application before Mamlatdar to fix the price.
He fixed on enquiry at Rs.4,95/65 P. which was paid by the appellant.
In the enquiry, the respondent contended that he purchased the property from Vasantrao, son of the landlord and by operation of the second proviso to Section 88(1)(b), the lands stood exempted from the operation of Section 1 to 87 of the Act.
So the Mamlatdar had no jurisdiction to decide the price of the land.
The appellant 's contention was that Vasantrao had no right to sell the lands during the life time of his father, the Karta of the Hindu Joint Family.
The sale was invalid and did not bind him.
He had acquired statutory right of `deemed purchaser ' and its exemption under section 88(1)(b) did not divest his statutory right.
The Mamlatdar accepted the appellant 's contention and allowed the petition.
On appeal to the Collector and revision to the Revenue Tribunal, the decision of Mamlatdar was reversed.
The Division Bench of the High Court dismissed the writ petition.
Hence this appeal by the appellant, after obtaining special leave.
On the question: whether the operation of the second proviso to Section 88(1)(b) of the tenancy Act, 1948 has retrospective effect depriving the appellant of the statutory right? 803 Allowing the appeal, this Court HELD: Section 88 of the Act empowers the government to exempt certain other lands from the purview of Sections 1 to 87 of the Act.
The State Governments exercised their power from time to time under Section 88(1)(b) and issued notification and punished in the official Gazette specifying certain areas as being reserved for non agricultural or industrial development i.e., urban development.
[806C D] It any land in the newly added area has been transferred or acquired between the date of the notification issued under first proviso and October 9, 1964, such transfer or acquisition of land shall have the effect as if it was made in an area to which the main part of the proviso and Section 88(1)(b) would apply.
The necessary consequence would be that the provisions of Sections 1 to 87 shall not apply and shall be deemed never to have applied to such added area.
It is implicit that such transfer or acquisition made, to bring within the net of second proviso, must be valid and bona fide one and not colourable, fraudulent, fictitious or nominal.
[809G 810B] In the instant case, since Vasantrao did not obtain any order from the competent court under the Lunacy Act to have him appointed as Manager of the joint family to alienate the property, the sale is per se illegal, The sale, therefore, appears to be to defeat the statutory right of the appellant.
The rigour of the second proviso to Section 88(1)(b) is thus inapplicable.
Thereby the right and interest as deemed purchaser acquired by the appellant has not been affected by subsequent notification issued under section 88(1)(b).
[811F G] Sukharam @ Bapusaheb Narayan Sanas & Anr.
vs Manikchand Motichand Shah & Anr., [196] 2 S.C.R. 59; Mohanlal Chunilal Kothari vs Tribhovan Haribhai Tamboli, ; ; Sidram Narsappa Kamble vs Sholapur Borough Municipality & Anr., ; ; Parvati & Ors vs Fatehsinhrao Pratapsinghrao Gaekwad, ; ; Navinchandra Ramanlal vs Kalidas Bhudarbai & Anr., ; ; P.K. Gobindan Nair & Ors.
vs P. Narayanan Nair & Ors., Indian Cases 743; and A. Ramacharlu vs Archakan Ananthacharlu & Anr., A.I.R. 1955 A.P. 261, referred to.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 276 of 1991.
From the Judgment and Order dated 16.7.1990 of the Orissa High Court in Criminal Appeal No. 117 of 1990 And Death Reference No. 1 of 1990.
H.K. Puri (Amicus Curiae) for the Appellant.
A.D. Giri, Solicitor General and A.K. Panda for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Leave granted.
This is a case of death sentence.
The fact that such a sentence is awarded even in the year 1990 would immediately suggest that the offence involved should be of a grave nature.
Yes, the offence is not only grave but heinous and inhuman.
A girl aged five years was a victim of rape and thereafter murder.
The sole appellant before us was tried, convicted and sentenced to death by the Sessions Court and confirmed by the High Court.
It is a 301 case depending entirely on circumstantial evidence and the obvious contention is that the circumstantial evidence is wholly insufficient to bring home the guilt to the accused.
No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned.
Invariable in such cases a person last seen with the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed to take the place of proof.
With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced.
The deceased Disco alias Sukumari, a girl aged 5 years was the daughter of P. Ws 1 and 6, the father and the mother who were drummers by castes.
They belong to village Badachatra, an interior part of Mayurbhanj District.
They had three children and the deceased was the eldest.
In the year 1988 during Kalipuja time the accused who was the resident of Tulsibani village about one kilometre away, came to the house of P.Ws 1 and 6.
He named their newly born daughter.
He took his meals in their house and went away saying that he would come with the new dresses for the newly born daughter.
Next day i.e. on 9.11.88 he came to their house in the morning with new dresses.
He told the parents that he would take the deceased with him to Bombay Chhak to get new dresses for the other two children.
He took his lunch and went with deceased towards Bombay Chhak.
Sometime after his departure P.W 6 told her husband P.W.1 to proceed to Bombay Chhak as the deceased might be crying.
Accordingly P.W. 1 accompanied by one Sambhu proceeded towards that Chhak.
On the way they met one Babuli and asked him whether he had seen the accused and the deceased to which he replied in the negative.
P.W. 1 came back to the village and sat in the shop of P.W. 2 who informed that he had seen the accused going towards village Tulsibani alongwith the deceased.
P.W. 1 and Sambhu then went to that village but could not find them there.
Therefore they went to Jharpokharia Police Station and gave a report to the Officer in charge P.W.11 stating that the deceased.
P.W. 1 again went to the Tulshibani Village where a person informed him that he has seen the accused going towards his house.
P.W. 1 went there and enquired the accused.
He told P.W. 1 that the deceased had gone back home but P.W. 1, caught hold of him but the accused squirmed away from his grip.
P.W. 1, however, again caught him and took him to his Village and according to P.W. 1 302 on being questioned the accused confessed to have raped and committed murder of the deceased.
The accused is alleged to have pointed the place where he had thrown the dead body, whereafter P.W. 1 and others proceeded in that direction.
P.W. 11 the Police Officer also came in a jeep and took the accused into custody, drew up F.I.R. and sent the same to the Police Station for registration of a case.
The accused is alleged to have led the Police party to the spot where the dead body was lying.
P.W. 11 found the deceased lying with injuries on her vagina and other parts.
He held the inquest in the presence of P.W. 4 and others and sent the dead body for post mortem.
P.W. 7 conducted the post mortem.
He noticed abrasions all over the body.
He also found one bruise on the left side of the forehead and a lacerated wound of 2.5 cm x 1 cm x muscle deep starting from the posterior angle of vagina along the perinium upto the anus.
On internal examination he found the following injuries. "(1) Soft tissues and muscles below the external injuries to the neck were contused with extra vassation of blood into the soft tissues.
(2) Heamatoma under the scalp corresponding to external injury No. 11.
(3) The hymen was torn and the floor of the vagina i.e., vaginal channel was lacerated.
This injury corresponds to external injury No. 15.
" The Doctor opined that all the injuries were antemortem and homicidal in nature and cause of death was due to asphyxia and shock as a result of strangulation and also due to injuries to the vagina.
He also opined that the injuries on the neck suggest that the deceased was strangulated by pressure of hands.
So far injury to the vagina is concerned, he was of the opinion that the same could have been caused by forcible penetration of a male organ.
The accused also was examined on 10.11.88 itself by another Doctor P.W 8 for some abrasions on his genital.
P.W. 8, however, categorically stated that on examining the accused he could not find any recent sign of sexual intercourse.
The prosecution relied on some blood stains which were found on his dhoti but the accused explained away by saying that they were caused by the bleeding of his gums.
The accused when examined under Section 313 pleaded not guilty.
He however, admitted that he went to the house of P.W. 1 but denied the rest of the case.
303 The trial court did not accept the P.W. 1, s evidence regarding the extra judicial confession alleged to have been made by the accused.
It held that nobody else has mentioned about this extrajudicial confession and at any rate it was supposed to have been made in the presence of the police.
We have also examined the evidence of P.W. 1 as well as the evidence of the other witnesses.
The trial court has rightly rejected this part of the prosecution case regarding the alleged extra judicial confession.
As a matter of fact we do not find anywhere mentioned that such a confession was made by the accused to P.W. 1 neither in the F.I.R. nor in the evidence of other witnesses who were also said to have been present when the accused was brought to the village by P.W. 1.
P.W. 6, who is no other than the wife of P.W. 1, did not even mention about it.
The trial court, however, relying on the other circumstances convicted the accused under Sections 302 and 376 I.P.C. and sentenced him to death subject to confirmation by the High Court and for seven years ' rigorous imprisonment for the offence of rape.
The sentences are directed to run concurrently.
The High Court confirmed the conviction and sentence awarded by the trial court.
As already mentioned this case rests purely on circumstantial evidence.
It is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions; 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
In the leading case Hanumant and Another vs The State of Madhya Pradesh, it is also cautioned thus: "In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof.
It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the 304 circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
" Mahajan, J., as he then was, has also aptly referred to a passage containing the warning addressed by Baron Alderson to the Jury in Reg vs Hodge, which is stated as under; "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matter, to over reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" In Dharam Das Wadhwani vs State of Uttar Pradesh, it was held that " unlike direct evidence the indirect light circumstances may throw may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. " In Jagta vs State of Haryana, ; it was held that "The circumstances that the accused could not give trustworthy explanation about the injuries on his person and about his being present on the scene of ;occurrence are hardly sufficient to warrant conviction.
" It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof.
The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof.
The Court must satisfy that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
Bearing these principles in mind we shall now consider the reasoning of the courts below in coming to the conclusion that the accused along has committed the offence.
305 The trial court relied on the following circumstances: "(a) 'Last seen ' theory that the accused and the deceased were last seen together.
(b) Conduct of the accused that the accused attempted to flee away when he could be seen at his village by P.W.1; (c) False explanation the accused when questioned gave false explanation regarding the whereabout of the deceased; (d) Recovery of the dead body of the deceased on the showing of the accused That the accused pointed out the place where the dead body of the deceased was lying inside a paddy field; (e) Presence of injury on the genital as well as stains of blood on the wearing apparel and nailclippings of the accused.
" The evidence of P.Ws 1, 2 and 6 are relied upon in support of the first circumstance namely that the deceased was last seen in the company of the accused.
P.W. 1 the father and P.W. 6 the mother deposed that on the day of occurrence the accused came to their house and took the deceased towards Bombay Chhak to purchase new clothes.
The accused only admitted to the extent namely that he had been to their house and denied the rest of the prosecution case.
However, we shall accept the evidence of P.Ws 1 and 6 to the effect that the accused took the deceased on that day to Bombay Chhak.
But that by itself is not enough to conclude that the deceased was last seen in the company of the accused because even according to them on being enquired, the accused told them that he sent the girl back in a truck.
Even otherwise the distance between the two villages is not much.
P.W. 2 's evidence, however, is relied upon that the deceased was going in the company of accused.
P.W. 2 is also a native of the same village to which P.Ws 1 and 6 belong.
He deposed that on a Wednesday he had been to village pond to take his bath at about 12 noon and while returning she saw the accused going towards east with a minor girl aged about 5 years but P.W. 2 does not say that the deceased was in his company.
He, however, proceeded to depose that he found P.W. 1 searching for some one and thereupon P.W. 2 told him that he has seen the accused with a minor girl going towards the paddy field.
He admitted that did not know whose daughter was in the company of the accused.
In the cross 306 examination he further admitted that he did not talk to the accused.
No. doubt P.W. 2 's evidence, to some extent, corroborates the evidence of P.Ws 1 and 6 but unfortunately even at the stage of inquest this circumstance namely that the deceased was last seen in the company of the accused, was not noted.
We will advert to this aspect at a later stage.
The important and crucial circumstance heavily relied upon by the prosecution is the alleged recovery of the dead body of the deceased on showing of the accused and the accused pointed the place where the body of the deceased was lying.
For this again the prosecution relied on the evidence of lP.Ws 1 and 11.
Having carefully gone through the evidence of P.W. 1 we find that he has improved his version from stage to stage.
As already noted both the courts below were not prepared to place any reliance on his evidence regarding the extra judicial confession about which he made no mention at any earlier stage.
As far as the recovery of the body is concerned, P.W. 1 however deposed that he managed to catch hold of the accused and brought him to the village and that the police came in a jeep and took the accused into custody.
Then all of them went towards paddy field which had been pointed by the accused and on search they found the dead body.
P.W. 11 the Investigating Officer deposed at he went to village and found the accused to have been detained.
He therefor prepared the F.R.I. and sent the same for registration of the crime.
Then he arrested the accused and his evidence and his evidence thereafter to put in his own words reads as under: "The accused pointed out the place where the dead body of the deceased was lying and thereafter led me to the paddy field wherefrom I could recover the dead body of the deceased Disco.
As there were good number of persons present apprehending danger to the accused I sent him to the police station.
During course of investigation, I examined witnesses, seized the dhoti (M.O. iii),Shirt (M.O. iv) and this chadi marked M.O.VII from the accused under the seizure list already marked Ext.
The dead body of the deceased was lying in the paddy field where there were paddy plants which had been damaged and scattered.
I held inquest over the dead body of the deceased Disco in presence of witnesses under the inquest report already marked Ext.
I noticed INJURIES on the vagina and other parts of the body of the deceased.
After inquest I sent the dead body for P.M. examination through constables.
" 307 According to this evidence the accused is alleged to have taken P.W. 11 and others to the open paddy field where the dead body was lying.
It is only thereafter that the inquest report was drawn up.
However, P.W. 11 stated in his evidence that before going to the paddy field the F.I.R. exhibit P. 10 was drawn up by him.
Surprisingly we find a mention about the discovery of the body in the F.I.R. itself.
But the same is not found in the inquest.
There is not even a reference to the accused in the column No. 9 of the inquest report where the information of witness as to the cause of death has to be noticed.
We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been atleast a mention in the inquest report as to how the body was discovered.
Apart from that usually a panchanama is prepared for such a discovery made under Section 27 of the Evidence Act but strangely in this case there is no such panchanama nor there is any other evidence of P.Ws 1 and 11.
P.W. 6 does not say anything about this aspect.
As a matter of fact the trial court has noted the discrepancies in the evidence of P.Ws 1 and 11 and it is observed as under: "The Investigating Officer, P.W. 11 has stated something more about the find of the dead body.
He speaks that the accused pointed out the place where the dead body of the deceased was lying and thereafter led him to the paddy field wherefrom the dead body of the deceased could be recovered.
Though this part of this evidence has not been supported by P.W. 1,but from the evidence of both P.Ws 1 and 11 coupled with the evidence of P.W.4 I am persuaded to hold that on the showing of the accused, the dead body of the deceased was recovered from a paddy field.
" We have perused the evidence of P.W. 4.
His evidence does not in any manner incriminate the accused.
P.W. 4 deposed that the dead body of the deceased was found lying in paddy field and that the police held inquest over the dead body in his presence and that the inquest report is P. 1 in which he put his signature as a witness.
Nothing more is stated by him.
He does not even refer to the presence of the accused at the place where the dead body was found or at the time of inquest, which was held also there.
P.W. 4 does not in any manner help the prosecution case so far as this circumstance is concerned.
If ready the body has been discovered at the instance of the accused there should have been discovered at the instance of the accused there should have been a panchanama and a mention about the same in the inquest report.
P.W. 11 categorically in his evidence has stated that after sending the F.I.R. the accused was questioned and the body was discovered there 308 after at the instance of the accused and the inquest was held over the dead body and P.W. 4 was a panch witness to the inquest and he also affixed his signature in the inquest report.
But as mentioned above P.W. 4 does not say anything about the accused being present anywhere near the place where the dead body was found nor there is a reference to the accused in the inquest report.
The only two remaining witnesses P.Ws 1 and 11 namely the father of the girl and the Investigating Officer respectively have contradicted each other.
That is the type of evidence regarding this crucial circumstance.
It is highly dangerous to accept the same and hold that the dead body was discovered at the instance of the accused.
Having given our careful consideration we are of the firm opinion that the prosecution has not established this circumstance conclusively.
On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence.
We may also point out at this stage that the circumstance that the deceased was last seen in the company of the accused was not mentioned in the inquest report.
Therefore the first circumstance also namely that the deceased was last seen in the company of the accused is not established beyond reasonable doubt.
However, when once it is held that the crucial circumstance namely the discovery of the body at the instance of the accused is not established, then the other circumstances are hardly sufficient to establish the guilt of the accused.
The courts below have also observed that the accused gave a false explanation.
According to the prosecution case the accused is supposed to have stated to P.Ws 1 and 6 that he sent away the deceased in a truck.
The courts below held that this explanation is false mainly on the surmise that a minor girl could not have come back on her own in a truck.
We are not convinced that on this surmise alone we can hold that the accused has given a false explanation.
It is not uncommon in villages for children to go about the field and walk short distances while coming back to the village.
In any event the accused had given an explanation that he sent the girl back to the village in a truck and the same cannot be held to be not plausible and therefore false.
Then the last circumstance relied upon by the courts below is the presence of some abrasions on the genital of the accused and presence of stains blood on the wearing apparels and nail clippings.
The prosecution wanted to show that because of the penetration the accused sustained the abrasions on his penis.
The Doctor, P.W. 8 who examined the accused has stated that he found only two pin head abrasion on the genital of the accused and on examination he opined that he could not find any recent sign of sexual intercourse and he also 309 added that there was no such sign of having intercourse within one hour of his examination.
However to a court question, P.W 8 stated that as a result of forcible sexual intercourse those abrasions can be possible.
We are unable to see as to how this evidence, in any manner, is helpful to the prosecution.
When P.W. 8 stated that he couldn 't find any sign of sexual intercourse atleast within one hour of his examination then it is only a mater of conjectures as to when the accused had any intercourse.
The accused is a man aged 57 years and it is not as if he was not used to sexual intercourse.
In any event the prosecution has not established that the accused had an intercourse on the day of the occurrence.
Then the presence of blood in the nail clippings and on the underpant does not also incriminate and do not connect the accused in any manner with the alleged offences.
The accused also had given an explanation namely that his gums were bleeding and in wiping out the same he got these blood stains.
Even otherwise having given our earnest consideration, we are not able to say that this last circumstance coupled with the circumstance of last seen in the company of the accused amount to legal proof of the guilt particularly when the crucial circumstance namely that the accused showed the dead body is held to be not established.
when such a main link goes, the chain gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts.
It is at this juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof.
At times it can be case of 'may be true '.
But there is a long mental distance between 'may be true ' and 'must be true ' and the same divides conjectures from sure conclusions.
The least that can be said in this case is that atleast there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him.
We are conscious that a grave and heinous crime has been committed but when there is ;no satisfactory proof of the guilt we have no other option but to give the benefit of doubt to the accused and we are constrained to do so in this case.
Accordingly, the appeal is allowed.
The conviction and sentence of the accused is set aside and he shall be set at liberty forthwith if not required in any other case.
T.N.A. Appeal allowed.
[/INST]The appellants, `the promotees ' from Class II service were promoted as Executive Engineers by relaxing five years length of service as Class II Engineers in officiating capacity on various dates between January 6, 1969 to May 29, 1971.
Only the appellant No. 1 and two other were confirmed as Executive Engineers w.e.f. July 11, 1973, December 11, 1974 and December 9, 1975 respectively.
The respondent No.1 was recruited and appointed directly as Asstt.
Executive Engineer w.e.f. October 25,1971.
he was also given relaxation of the length of service of five years as Asstt.
Executive Engineer and was promoted as Executive Engineer on October 8, 1973 and was confirmed w.e.f. December 22, 1976.
199 All the appellants except one M.R. Gupta were further promoted as Superintending Engineers on different dates between 1980 to 1984 whereas the respondent No. 1 was promoted as Superintending Engineer on March 4, 1987.
The applicant No. 1 was further promoted as Chief Engineer The validity of the promotion of respondent No. 1 to the post of Chief Engineer was challenged.
The respondent No. 1 who was shown junior to the appellants, field Writ Petition seeking a writ of mandamus directing the second respondent, State Government to consider his case for promotion as Superintending Engineer from the date on which the respondents were promoted assigning the seniority over the appellants and the consequential reliefs.
On reference, a Division Bench of the High Court held that respondent No. 1 was a member of the service from the date of his initial appointment as Asstt.
Executive Engineer and the appellants and the proforma respondents were not members of the service and directed the Single Judge to dispose of the matter on merit, against which, this appeal on leave was filed.
The appellants contended that the appellants being promoted as Executive Engineers against regular vacancies, which were neither a stop gap arrangement nor fortuitous, and being continued in service without any break from the respective dates o their promotion, they were members of the service in a substantive capacity as Executive Engineers from the respective dates of promotion; that since the respondent No. 1 was recruited as Asstt.
Executive Engineer w.e.f. August 30, 1971 long after the promotion of the appellants, the appellants were seniors to the respondent No. 1 as Executive Engineers, as Proviso to Rule (5)2 entitles them to remain in a substantive capacity as Executive Engineer since requisite number of qualified Asst.
Executive Engineers were not available for promotion; that in view of their continous officiation as Executive Engineers in terms of Rule 2(12)(a) of the rules, they must be deemed to be the members of the service from the dates of promotion and, therefore, they were seniors to the respondent no.1.
The respondents contended that unless the appellants were appointed substantively to the cadre posts they could not be members of the service.
The respondent No. 1 became a member of the service 200 from the date of his initial appointment as Asstt.
Executive Engineer, therefore, he was senior to the appellants and proforma respondents.
As agreed by the parties, this Court declare the law on the interpretation of the rules and leave the matter for the State Govt.
to decide the inter seniority on merits.
Disposing the appeal, it is.
HELD: 1.
Appointment to a post in accordance with the rules is a condition precedent and no one can claim appointment to a post or promotion, as of right, but has a right to be considered in accordance with the rules, Appointment by promotion or direct recruitment, therefore, must be in accordance with the rules so as to become a member of the service in a substantive capacity.
Seniority is to be fixed in accordance with the principle laid down in the rules.
[213G 214A] 2.
The promotee has right to confirmation in the cadre post as per Rule 11(4) if a post is available to him within his quota or at a later date under rule 5(2) read with rule 11(4) and gets appointment under rule 8(11).
His seniority would be reckoned only from the date of the availability of the post and the year of allotment, he shall be next below to his immediate senior promotee of that year or the junior most of the previous year of allotment whether officiating or permanent occupying the post within 50% quota.
[214G 215A] 3.
A direct recruit on promotion within his quota, though later to the promotee is interposed in between the periods and interject the promotee 's seniority; snaps the links in the chain of continuity and steals a march over the approved promotee probationer.[215B] 4.
Mere officiating appointment by promotion to a cadre post outside the quota; continuous efficiation therein and declaration of probation would not clothe the promotee with any right to claim seniority over the direct recruits.
The necessary conclusion would, therefore, be that the direct recruit shall get his seniority with effect from the date of the year of the allotment as Asstt.
Executive Engineer which is not alterable.
Where the promotee would get his seniority w.e.f.
the date of the availability of the posts within 50% quota of the promotees.
[215D] 5.
The seniority of the promotee from Class II service Executive Engineer shall be determined with effect from the date on which the cadre post was available to him and the seniority shall be determined accordingly.[215F] 201 6.
Under the Rules `determination of seniority would be made only after the promotee becomes a member of the service '.
Therefore the year of allotment must be determined having regard to (i) availability of the cadre post within quota; (ii) satisfactory completion of the probation, and (iii) appointment to the post in the substantive capacity in term of Rules 12(6) and (7) read with Rule 11(4) and Rule 8(12).
Any other construction would be contrary to the avowed object of the rules as a whole.[218B C] 7.
There is neither invidious discrimination nor arbitrariness in Rule 2(12)(a) offending articles 14 & 16.
The differentiation drawn between direct recruit and the promotee bears rational relation to the object of Rule 2(12).
[219H] 8.
The Government of Haryana to determine the cadre posts, if not already done, regularly from time to time including the post created due to exigencies of service in terms of Rule 3(2) read with appendix `A ' and allot the post in each year of allotment as contemplated under rule 12 read with Rule 5(2)(a) and issue orders appointing substantively to the respective posts within the quota and determine the inter se seniority between the appellants promotees and the direct recruit in the respective quota cadre posts of Executive Engineers etc.
within four months from the date of receipt of this judgment.
The inter se seniority of promotees and direct recruits shall be determined accordingly.
[220D E] M.S. Mighlani vs State of Haryana & Anr. ; J.C. Yadav vs State of Haryana, ; K.K. Khosla vs State of haryana, [1990] 2 SCC 199; V.B. Badami, etc.
vs Stat of Mysore [1976] 1 SCR 815; K.C. Joshi & Ors.
vs Union of India & Ors., to.
R.P. Khanna vs S.A.F. Abbas & Ors, at 557 C J; Baleshwar Dass & Ors.
vs State of U.P. & Ors.
, [1981] 1 SCR 449 at 463; B.S. Yadav vs State of Haryana, ; The Direct Recruit, Clall II Engineering Officers ' Association vs State of Maharasthra & Ors., ; at 745 Distinguished. 9.
It is a cardinal rule of interpretation that a proviso to a particular provision of a stature only embraces the field which is covered by the main provision.
It carves out an exception to the main provision to which it has been enacted by the proviso and to no other.
The proper function of proviso is to except and deal with a case which would otherwise fall within the general language o the main enactment, 202 and its effect to confine to that case.
Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.
[211E F] 10.
The scope of the proviso is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule.
It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set a naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect [211G H] 11.
In interpreting the rule, effect must be given to allow everyone drawn from the sources to have their due share in the service and chances of involvement to effectively discharge the duties of the posts honestly and efficiently with dedication.
Any wanton or deliberate deviation in the implementation of the rules should be curbed and snubbed and the rules must be strictly implemented to achieve the above purpose.
If wanton doviations are allowed to be repeated, it would breed indiscipline among the services and amounts to undue favour to some and denial of equity for many for reasons known or unknown subverting the purpose of the rules.{213F] 12.
Rules 2(1), 2(3), 2(7), 2(10), 2(12)(a) 5(2)(a) 8, 9(2) 11, 12(3) 12(5) to 12(7) to be construed harmoniously.
lest the legislative animation would be defeated and the rules would be rendered otiose and surpluses.
It would also adversely effect the morale and efficiency of the service.[215C] 13.
With a view to have efficient and dedicated services accountable to proper implementation of Govt.
policies, it is open and is constitutionally permissible for the State, to infuse into the services, both talented fresh blood imbued with constitutional commitments, enthusiasm,drive and initiative by direct recuritment, blended with matured wealth of experience from the subordinate services.[212G] 14.
It is permissible to constitute an integrated service of persons recruited from two or more sources, namely, direct recruitment, promotion from subordinate service or transfer from other services.
Promotee from subordinate service generally would get few chances of 203 promotion to higher echolans of services.
[212H] 15.
Avenues and facilities for promotion to the higher services to the less privileged member of the subordinate service would inculcate in them dedication to excel their latent capabilities to man to cadre posts {213A] 16.
Talent is not the privilege of few but equal avenues made available would explore common man 's capabilities overcoming environmental adversity and open up full opportunities to develop one 's capabilities to shoulder higher responsibilities without succumbing to despondence.
Equity talented young men/women of great promise would enter into service by direct recruitment when chances of promotions are attractive.
[213B] 17.
The chance of promotion would also enable a promotee to imbue involvement in the performance of the duties, obviate frustration and eliminate proclivity to corrupt practices, lest one would tend to become corrupt, sloven and mediocre and a dead wood.
In other words, equal opportunity would harness the human resources to augment the efficiency of the service and undue emphasis on either would upset the scale of equality germinating the seeds of degeneration. {213D]
</s>
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<s>[INST] Summarize the judgementRISDICTION: Civil Appeal Nos. 154 & 155(N) of 1971.
From the Judgment and Order dated the 11th November, 1969 Civil of the Punjab & Haryana High Court in writ Nos. 1207 and 1607 of 1969 respectively.
Harbans Singh, I.S. Gujral, C.V. Subbarao and R.N. Poddar for the Appellants is both the appeals.
G.K. Arora for the respondents in C.A. 154/71.
T.S. Munjral and Mrs. Urmila Kapoor for the Respondent in CA 155/1971.
The Judgment of the Court was delivered by SEN, J.
These appeals on certificate are directed against the Judgment and orders of the Punjab High Court dated November 19,1969 allowing the writ petitions filed by the respondents and quashing the impugned notices of demand for recovery of the difference between the amount which they had agreed to pay under the terms of auction of a liquor vend and the amount realized on re auction of the vend as also the defaulted instalments of the licence fee payable in respect of a liquor vend issued under section 60 of the Punjab Excise Act 1914 ( 'Act ' for short).
Put very shortly, the essential facts are these.
On March 11, 1969, the Deputy Excise & Taxation Commissioner, Hissar held an 719 auction for grating the right to sell country liquor for Mandi Dabwali for the year 1969 70 at the Collectorate.
At the commencement of the auction, the Deputy Excise & Taxation Commissioner had read out the auction announcements and conditions of auction as required under r. 36(4) of the Punjab Liquor Licence Rules, 1956 ( 'Rules ' for short).
The respondents Messrs Lal Chand Bal Raj etc. offered the highest bill of Rs. 10,11,000 and their bid was provisionally accepted by the Deputy Excise & Taxation Commissioner and they were declared to be the highest bidder as required under r. 36(22) of the Rules.
Subsequently, the bid was accepted by the Excise & Taxation Commissioner exercising the powers of the Financial Commissioner on March 21, 1969 as required under r. 36(22) of the Rules.
The respondents however failed to deposit Rs. 50,550 as security amount as required under r. 36(22A) and thereby contravened condition No. 15(i) of the conditions of auction and r. 36(23) of the Rules.
They were accordingly served with a notice dated April 9, 1969 by the Deputy Excise & Taxation Commissioner requiring them to show cause why the licence for country liquor vend, Mandi Dabwali should not be put to re auction under r. 36(23A) of the Rules and the deficiency in price and all expenses of such re auction recovered from them in the manner laid down in section 60 of the Punjab Excise Act, 1914.
in response to the same, the respondents by their letter dated April 12, 1969 tried to wriggle out of their contractual obligations by saying that before the auction it was announced that no wine shop shall be opened within a radius of three miles of liquor vend, Mandi Dabwali, but across the border the State Government of Punjab had sanctioned the establishment of a Iiquor shop at village Killianwali which was hardly 2 1/2 miles from the State border and this would mean that there would be two country liquor shops one at Mandi Dabwali in the State of Haryana and the other at village Killianwali in the State of Punjab and this was in breach of condition No. 13(iii) read with r. 37(8B) of the Rules, as applicable to the State of Haryana.
Upon this basis, the respondents represented that before requiring them to deposit the security amount, they should be given an assurance that no other liquor shop would be opened.
Although in the show cause notice, the respondents were intimated that in case they desired to be heard in person, they should appear before the Deputy Excise & Taxation Commissioner at Chandigrah on April 14, 1969, but none of them turned up on 720 that date.
On the same day, the Deputy Excise & Taxation Commissioner rejected the representation of the respondents and directed re sale of the licence for retail vend of the country liquor shop at Mandi Dabwali for the year 1969 70 under r. 36(23) of the Rules.
The respondents have purposely kept back the reply that they received from the Deputy Excise & Taxation commissioner conveying the rejection of their representation which intimated to them that the licence for retail vend of country liquor shop at Mandi Dabwali would be re auctioned on April 23, 1969 at the Collectorate, Hissar.
By his letter dated April 15, 1969 addressed to all the Excise & Taxation Officers in the State, the Deputy Excise & Taxation commissioner forwarded the notice of re auction asking them to give wide publicity to the notice alongwith the announcements to be made at the time of re auction.
Copies of the circular letter and the notice of re auction were sent not only to the commissioner, Ambala and all the Deputy Commissioners in the State but also to the Chief Secretaries and the Excise Commissioners of different States and they were also requested to give wide publicity in their States regarding the re auction of the licence.
At the time of re auction held on April 23, 1969, there were as many as 52 bidders and ultimately the liquor vend, Mandi Dabwali was re sold at the highest bid of Rs. 6,65,000 for the remaining part of the financial year.
On May 8, 1969, the respondents were served with a notice of demand of Rs. 3,46,000 representing the loss on re sale.
The High Court by the judgement under appeal, quashed the notice of demand following the decision in Kanhiya Lal Bhatia & Co. vs State of Haryana & Ors.
The High Court following its decision in Kanhiya Lall 's case, supra, held that the State Government had no authority to demand the amounts for failure of which the vends were put to re auction on the ground that the licence fee levied was in the nature of excise duty.
Recently, this Court has in State of Haryana vs Jage Ram & Ors. reversed the decision of the High Court in Kanhiya Lal 's case, supra, and held that the amounts which the State Government had changed to the respondents were neither in the nature of a tax nor in the nature of an excise duty but were in the nature of a price which the State Government were entitled to charge as consideration for parting with its privilege in favour of the licensees.
That being so, the appeals must succeed on this short ground alone.
Normally, this would have entailed remitting the writ petitions to the High Court for a decision on merits but looking 721 to the fact that the demands raised were for the financial year 1969 70, we felt that no useful purpose would be served in remitting the matter to the High Court and heard the parties on merits.
Apart from the question of validity of the charge which is common to both the appeals, the questions raised in the two appeals are distinct and separate and they will have to be dealt with separately.
It is convenient at this stage to set out the relevant statutory provisions.
s.27 of the Punjab Excise Act, 1914 empowers the State Government to 'lease ' no such conditions and for such period as it may deem fit the right of selling by whole sale or retail any country liquor or intoxicating drug within any specified local area.
On said lease being granted the Collector, under sub s.(2) thereof, has to grant to the lessee a licence in the from of a lease.
S.34 of the Act provides inter alia that (1) Every licence granted under the Act shall be subject to payment of such fees, if any, as the Financial Commissioner may direct; and (2) The authority granting such licence may require the licensee to give such security for the observance of the terms of his licence, or to make such deposits by way of security as he may think fit.
s.58(1) of the Act confers power on the State Government, by notification, to make rules for the purpose of carrying out the provisions of the Act.
In particular and without prejudice to the generality of section 58(1), sub section
(2) thereof provides that the State Government may make rules with respect to matters enumerated therein.
Under cl.(f) the State Government may make rules regulating the manner of holding auctions of liquor shops.
S.59 provides that the Financial Commissioner may, by notification, make rules by cl.
(a) to regulate the manufacture, supply, storage or sale of any intoxicant, cl.(d) prescribing the scale of fees or the manner of fixing fees payable in respect of any such licence and by cl.(f) prescribing the authority by, the restrictions under, and the conditions on which, any licence may be granted.
The licences, in a large measure, owe their existence to the rules framed by the Financial Commissioner under S.59.
S.60 of the Act, insofar as material, reads: "60 (1) Recovery of dues The following moneys namely: (a) all excise revenue; (b) * * * * * * *. 722 (c) all amounts due to the Government by any person on account of any contract relating to the excise revenue; may be recovered from the person primarily liable to pay the same, or from his surety (if any), by distress and sale of his moveable property or by any other process for the recovery of arrears of land revenue due from land holders or from farmers of land or their sureties.
" The Punjab Liquor Licence Rules, 1956 framed by the Financial Commissioner in exercise of his powers under s.59 of the Act make detailed provisions regulating the manner in which a licence for the retail vend of country liquor shall be granted by public auction, and the conditions to which it shall be subject.
R.36(22A) of the Rule provides that a person to whom a country liquor shop has been sold shall deposit by way of security an amount equivalent to one twenty fourth of the amount of licence fee determined under r.36(16) within a period of seven days of the date of auction.
R.36(23)(2) provides that a person to whom country liquor shop is sold shall pay the amount of licence fee so calculated in 22 equal installments, each installment being payable on tho 10th and 26th of each month starting from the month of April.
In the event of failure to pay the instalment by the due date, his licence may be cancelled.
R.36(23A) interdicts that any person whose bid has been accepted at the auction fails to make the deposit of the amount of security equivalent to one twenty fourth of the total licence fee as required under r.36(22A), the Collector may resell the licence by public auction and deficiency in licence fee and all expenses for such resale shall be recoverable from the defaulting bidder in the manner laid down in s.60 of the Punjab Excise Act, 1914.
In Har Shanker & Ors.
vs The Deputy Excise & Taxation Commissioner & Ors., this Court held that the writ jurisdiction of the High Courts under Art.226 was not intended to facilitate avoidance of obligations voluntarily incurred.
It was observed that one of the important purpose of selling the exclusive right to vend liquor in wholesale or retail is to raise revenue.
The licence fee was a price for acquiring such privilege.
One who makes a bid for the grant of such privilege with a full knowledge of the terms and conditions attaching to the auction cannot be permitted to wriggle 723 out of the contractual obligations arising out of the acceptance of his bid.
Chandrachud, J. (as he then was interpreting the provisions of the Punjab Excise Act, 1914 aud of the Punjab Liquor Licence A Rules, 1956 and speaking for the Court, said: "The announcement of conditions governing the auction were in the nature of an invitation to an offer to .
those who were interested in the sale of country liquor.
The bids given in the auctions were offers made by the prospective vendors to the Government.
The Government 's acceptance of those bids was the acceptance of willing offers made to it.
On such acceptance, the contract between the bidders and the Government became concluded and a a binding agreement came into existence between them.
The powers of the Financial Commissioner to grant liquor licence by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned , by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim.
Reciprocal right and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract.
By such a test no contract could ever have a binding force.
" To the same effect are the decisions of this Court in State of Haryana & Ors.
vs Jage Ram & Ors. and the State of Punjab vs M/s Dial Chand Gian Chand & Co. laying down that persons who offer their bids at an auction to vend country liquor with full knowledge of the terms and conditions attaching thereto, cannot be permitted to wriggle out of the contractual obligations arising out of and acceptance of their bids by a petition under article 226 of the Constitution.
The observations in Har Shankars case, supra, did not touch upon the question whether such a contract must be in compliance with article 299 (1) of the Constitution.
The question whether the process of licensing by public auction of liquor vend involves a contract at all or is merely the grant of a privilege and the bidding at a public auction is with a view merely to fix the price for the purchase of the privilege, has been engaging the 724 attention of the High Courts for quite some time.
In Smt.
Nanhibai vs The Exercise Commissioner, M. P. & Ors.
the Madhya Pradesh High Court held that the State Government has the exclusive privilege of manufacturing, selling and possessing intoxicants which it has power to lease for consideration under section 18 of the M.P. Excise Act, 1915 and that every auction of excise contract for sale of intoxicants is a leasing of the Government 's right of selling intoxicants.
P.V. Dixit, C.J. speaking for the Court made following observations on this point which are pertinent : "The principle that the State Government has exclusive right of manufacturing, selling or possessing intoxicants or , any country liquor intoxicating drug runs through sections 13 to 18 of the Act.
The important condition that must be satisfied before any licence can be granted to a person for manufacture or sale by any country liquor intoxicating drug is that the person must first obtain the privilege or the right of manufacturing or selling the intoxicating drug.
In every auction sale of a liquor shop at which liquor is sold in wholesale, or retail, there is a sale of the lease of the Government 's right of selling country liquor intoxicating drug.
On the acceptance of a bid of a person at an auction sale, contract for the demise of the Government 's interest is brought into existence and this is 'followed by the grant of a licence to the person whose bid has been accepted.
" These observations of the learned Chief Justice have since been approved of by a Full Bench of the High Court in Ram Rattan Gupta vs State of M.P.
The other two cases on the point which we must notice are: Ajodhya Prasad Shaw & Anr.
vs State of Orissa & Ors.
and M/s Shree Krishna Gyanoday Sugar Ltd. & Anr.
vs State of Bihar & , Anr. 725 In Ajodhya Prasad Shaw 's case, the Orissa High Court and in M/s. Shree Krishna Gyanoday 's case, the Patna High Court interpreting like provisions of the Bihar & Orissa Excise Act, 1915 held that where the State Government in exercise of its powers under section 22 of that Act grants exclusive privilege to any person on certain conditions under section 22 (1) and a licence is received by that person under section 22 (2), it cannot be contended that it amounts to a contract made in exercise of the executive power of the State within the meaning of article 299 (1) of the Constitution.
R.N. Misra, J. speaking for the Court in Ajodhya Prasad Shaw 's case tried to highlight the problem in these words: "Law is well settled and parties before us do not seek to canvass that this constitutional requirement is not mandatory.
In the field it covers it is a prerequisite to bring into existence a valid contract.
The question for examination in the present case is, however, different.
Is there a contract at all and in case it involves a contract is it one purported to be made in exercise of the executive power of the State Government is the question for examination" The learned Judge went on to say: "In case the result of our investigation is that it is not a contract in exercise of the executive power of the State in terms of the language used in the Article, it would follow that this constitutional requirement has no application.
I have already indicated that the settlement of the shop, the collection of the fee and the grant of the licence are all statutory acts by the prescribed authority.
The intention of the Constitution is not to extend the principles in article 299 (1) to cover all possible contracts.
This is why specific reference has been made to contracts "in exercise of the executive power".
It is not necessary for the present purpose to examine whether the licensing process involves a contractual agreement.
Possibly there is an element of contract in the settlement, but certainly it is not one entered into in the executive power of the State but is regulated by the statute or the rules made thereunder.
In the circumstances in the case.
Of a statutory licence even based upon a contract the requirements of this Article can not be invoked.
" 726 In M/s. Shree Krishna 's case, supra, N.P. Singh, J. speaking for the Court rightly observed that when the State Government in exercise of its powers under section 22 of the Act grants the exclusive privilege of manufacturing, or supplying or selling any intoxicant like liquor to an person on certain condition, there comes into existence a contract made in exercise of its statutory powers and such a contract does not amount to a contract made by the State in exercise of the executive powers.
There is a distinction between contracts which are executed in exercise of the executive powers and contracts which are statutory in nature.
Under article 299(1), three conditions have to be satisfied before a binding contract by the Union or the State in Exercise of the executive power comes into existence :(1) The contract must be expressed to be made by the President or the Governor, as the case may be.
(2) It must be executed in writing.
And (3) The execution thereof should be by such person and in such manner as the President or the Governor may direct or authorize.
There can be no doubt that a contract which has to be executed in accordance with Act.
299(1) is nullified and becomes void if the contract is not executed in conformity with provisions of article 299(1) and there is no question of estoppel or ratification in such cases.
Nor can there be any implied contract between the Government and another person: K.P. Choudhary vs State of M.P., Mulamchand vs State of M.P., State of M.P. vs Ratfan Lal and State of M.P. vs Firm Gobardhan Dass Kailash Nath.
It is well settled that article 289(1) applies to a contract made in exercise of the executive power of the Union or the State, but not to a contract made in exercise of statutory power, article 299(1) has no application to a case where a particular statutory authority as distinguished from the Union or the States enters into a contract which is statutory in nature.
Such a contract, even though it is for securing the interests of the Union or the States, is not a contract which has been entered into lay or of behalf of the Union or the State in exercise of its executive powers.
In respect of forest contracts which are dealt with by this Court in K.P. Choudhary 's, Mulamchand 's, Rattan Lal 's and Firm Gobardhan Dass 's cases, supra, 727 there are provisions in the and the Forest Contract Rules framed thereunder for entering into a formal deed between the forest contractor and the State Government to be executed and expressed in the name of the Governor in conformity with the requirements of Act.
299(1), whereas under the Punjab Excise Act, 1914; like some other State Excise Acts, once the bid offered by a person at an auction sale is accepted by the authority competent, a completed contract comes into existence and all that is required is the grant of a licence to the person whose bid has been accepted.
It is settled law that contracts made in exercise of statutory powers are not covered by article 299(1) and once this distinction is kept in view, it will be manifest that the principles laid down in K.P. Chowdhary ' Mulamchand 's, Rattan Lal 's and Firm Gobardhan Dass 's cases are not applicable to a statutory contract.
In such a case, the Collector acting as the Deputy Excise & Taxation Commissioner conducting the auction under r. 36(22) and the Excise Commissioner exercising the functions of the Financial Commissioner accepting the bid under r. 36(22A) although they undoubtedly act for and on behalf or the State Government for raising public revenue, they have the requisite authority to do so under the Act and the rules framed thereunder and therefore such a contract which comes into being on acceptance of the bid, is a statutory contract failing outside the purview of article 299(1) of the Constitution.
We are clearly of the opinion that in the case of a Statutory contract like the one under the Excise Act, the requirements of article 299(1) cannot be invoked.
In A. Damodaran & Anr.
vs State of Kerala & Ors, the Court interpreting s.28 of the Kerala Abkari Act, 1967 which was in pari materia with s.60 of the Punjab Excise Act, 1914 held that even if no formal deed had been executed as required under article 299(1), still the liability for payment of the balance of the licence amount due could be enforced by taking recourse to s.28 of the Act.
The Kerala High Court rejected the contention of the appellants by holding that the liability to satisfy the dues arising out.
Of a bid was enforceable under s.28 quite apart from any contractual liability and this view was upheld by this Court on the ground that the word 'grantee ' in s.28 has a wide connotation to mean a person who had been granted the privilege by acceptance of his bid.
It was further held that the statutory duties and liabili 728 ties arising on acceptance of the laid at a public auction of a liquor contract may be enforced in accordance with the statutory provisions and that it was not condition precedent for the recovery of an amount due under s.28 of the Act, that the amount due and recoverable should be under a formally drawn up and executed contract.
This is in recognition of the principle that the provisions of Art.299(1) of the Constitution are not attracted to the grant of such a privilege to vend liquor under the Act.
In Kishori Lal Minocha 's case, supra, there was reauction of a liquor vend on the highest bidder 's failure to deposit one sixth of the bid amount as security deposit and the question was whether the State was entitled to recovery in a suit the deficiency on reauction.
The decision in Minocha 's case is clearly distinguishable for two reasons: first, there was nothing to show that the bid had been accepted by the Excise Commissioner under r. 359(2) of the U.P. Excise Manual.
Further, r. 357 under which the excise authorities put the vend to reauction had not been published in the official gazette as required by s.77 of the U.P. Excise Act, 1910 and thus had no statutory force.
No such question arises in these cases as the liability that is sought to be enforced against the respondents by the impugned notices of demand is a statutory liability in terms of condition 15(1) of the conditions of auction read with r.36(23) of the Rules and the amount is recoverable from them in the manner laid down in s.60 of the Act.
The short question that falls for determination in these appeals is whether the State Government was entitled to realise the difference which the respondents had agreed to pay under the terms of auction of a liquor vend and the amount realised on reauction of the vend, as also the defaulted instalment of the licence fee payable in respect of a liquor vend.
The first of these questions arises in Civil Appeal No.154(N) of 1971 while the second in Civil Appeal No. 155(N) of 1971.
We will deal with them in that order.
Civil Appeal No. 154 (N) of 1971 There is no substance in the contention that the respondent were not served with a notice under r.36(3) of the Rules.
The date of reauction was fixed by the Excise & Taxation Commissioner under r.36(2).
On April 14, 1969, the Deputy Excise & Taxation Commissioner rejected the representation made by the respondents and directed resale of the licence for retail vend of country liquor shop, 729 Mandi Dabwali for the year 1969 70.
It is accepted before us that the Deputy Excise & Taxation Commissioner had conveyed to the respondents that their representation had been rejected and that the Iicence for retail vend for Mandi Dabwali shop would be reauctioned on April 23, 1969, at the Collectorate, Hissar.
The respondents have withheld the document and an adverse inference "must necessarily be drawn against them.
It is quite obvious that the respondents were duly given notice of re auction as under r.36(3).
It is evident from the return filed by the State Government that copies of circular letter dated April 15, 1969 by the Deputy Excise & Taxation Commissioner and the notice of re auction, of even date issued by him were vent not only to the Commissioner, Ambala but to all the Deputy Commissioners as well as to all the Excise & Taxation officers in the State but also to the Chief Secretaries and the Excise Commissioner of different State.
From this, it is quite apparent that wide publicity was given throughout the State of Haryana as well as in other State regarding the date and place of re auction as enjoined by r.36(3) of the Rules.
As already stated, there were as many as 52 bidders present at the time of re auction.
The decision in Jage Ram 's case supra is clearly distinguishable on facts.
There, the Court on a consideration of the material on record found that there was nos substantial compliance either in the letter or in spirit with the requirements of r.36(3) of the Rules.
Since the re auction in that case did not conform to the rules, the Court held that the defeating bidders could not be held liable to make good the difference between the amount which was payable by them and the amount which was fetched at the re auction.
The principle laid down in Jage Ram 's case, supra is clearly not attracted in the facts and circumstances of the present case.
The first contention regarding the invalidity of reauction held on April 23, 1969 based on r.36(3) of the Rules must therefore fail.
Equally futile is the contention that the respondents had withdrawn their bid and therefore they could not be mulcted for the difference between the amount which they were liable to pay and the amount realized by re sale of the vend.
This is not a case of the type reported in Union of India & ors.
vs M/S. Bhim Sen Walati Ram which laid down the well settled principle that an offer can always be withdrawn before it is finally accepted and that a conditional acceptance is not an acceptance in law.
In Bhim Sen Walati 730 Ram 's case, supra, the Court held that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid had been provisionally accepted was entitled to withdraw his bid and that when the bid was withdrawn before the confirmation of the Chief Commissioner, the bidder was not liable for damages on account of any breach of contact or for the shortfall on the re sale: It was observed: "It is not disputed that the Chief Commissioner has disapproved the bid offered by the respondent.
If the Chief Commissioner had granted sanction under 'cl.33 of exhibit D 23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale.
As the essential pre requisites of a completed sale are missing in this case there is no liability imposed on the respondent for payment of the deficiency in the price.
" It is urged on the strength of these observations that the respondents were entitled to withdraw their bid by declining to make the security deposit.
The contention cannot be accepted.
For onething, this was not a case where there was mere conditional acceptance of the highest bid of the respondents by the Deputy Excise & Taxation Commissioner at the time of the auction on March 1, 1969, but their kid was also accepted by the Excise & Taxation Commissioner on March 21, 1969 as required under r. 36(22A).
The respondents could not.
unilaterally by their letter dated April 12, 1969 rescind the contract on the pretext that the State Government of Punjab hail opened 2 new Iiquor shop at village Killianwali across the State border which was contrary to condition No. 13(iii) of the conditions of auction read with r. 37(8B) of the Rules.
Even though this may have been in breach of the inter State agreement between the State Governments of Punjab and Haryana, the opening of such a liquor vend by the State Government of Punjab at village Killianwali could not justify the respondents in not making the security deposit of Rs. 50,550.
It appears from the return filed by the State Government that although condition No. 13(iii) had been read out before the auction began as required under r. 36(4), there was no mention that there was an inter State agreement between the two State Governments and that 731 it was a condition of sale that the State Government of Punjab would not open a liquor vend within a radius of three miles from the State border.
Nor would this amount to a breach of the conditions on the part of the State Government of Haryana or furnish a ground absolving the respondents of their liability to pay the shortfall.
The second contention that the respondents had withdrawn their bid and were therefore not liable for the loss of re auction of liquor vend at Mandi Dabwali cannot be sustained.
In Har Shanker 's case, supra, this Court held that the writ jurisdiction of the High Courts under article 226 was not intended to facilitate avoidance of obligations voluntarily incurred.
It was observed that one of the important purposes of selling the exclusive ar right to vend liquor in wholesale or retail is to raise revenue.
The licence fee was a price for acquiring such privilege.
One who makes a bid for the grant of such privilege with full knowledge.
Of the terms and conditions attaching to the auction cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of his bid.
In dealing with the question, Chandrachud, J. said: . "The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who held their venture succeeded, would have relied upon those very powers to found a legal claim.
Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract.
By such a test no contract could even have a binding force.
" To the same effect are the decisions of this Court in State of Haryana & Ors.
vs Jage Ram & Ors. and the State of Punjab vs M/s Dial Chand & Gian Chand & Co. laying down that persons who offer their bids at an auction to vend country liquor with full knowledge of the terms and conditions attaching thereto, cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of their bids by a petition under article 226 of the Constitution.
732 Civil Appeal No. 155 (N) of 1971 At an auction for the licence of retail vend for Butana in the Rohtak district for the financial year 1968 69 held by the Deputy Excise & Taxation Commissioner on March 11, 1968 at the Collectorate, Rohtak, the respondents Messrs Ram Kishan Pritiam Singh & Co. Offered the highest bid of Rs. 1,40,000.
The Deputy Excise & Taxation Commissioner accepted their bid at the conclusion on the auction.
On the same day, the respondents deposited Rs. 5,811 equivalent to one twentieth of the licence fee representing the security amount and started operating the said licence w.e.f. April 1 1968.
It appears that they drew their supplies by making applications to the a Excise & Taxation Officer, Rohtak for the issuance of challans for deposits of still held duty in the treasury, and after crediting into the treasury a sum equivalent to the excise duty payable on the strength of permits issued by him.
Admittedly, the respondents worked the contract throughout the period without making any payment of Rs. 1,40,000 towards the licence fee which was payable in 23 fortnightly instalments.
The respondents on being served with a notice of demand for payment of Rs. 13,000 representing the first of such fortnightly installments filed a writ petition in the High Court and the High Court following its decision in Kanhiya Lal 's case, supra, struck down the notice of demand.
It is accepted at the bar that the respondents have not paid anything towards the licence fee of Rs. 1,40,000 due and payable by them.
Upon these facts, the Excise & Taxation Commissioner would have been justified in cancelling the licence in terms of r.36(23)(2) of the Rules which is in these terms : "A person to whom a country spirit shop is sold shall pay the annual licence fee in 23 equal instalments, each instalment being payable on the 10th and 26th of each month starting from the month of April.
In the event of failure to pay the instalment by the due date, his licence may be cancelled.
" There was a fundamental breach of an essential condition by the respondents.
In a commercial contract of this nature, for the performance of which a definite time has been fixed and the contract specifies the mode of payment i.e. specifies the dates on which The installments of the licence fee are to be paid, time is of the essence 733 of the contract.
R.36(23)(1) of the Rules specifically makes time of the essence.
It therefore follows that payment to the instalments on the due dates was a condition pre requisite to the performance of the contract, and that the failure of the respondents to make such payments relieved the State Government of their obligations.
The Excise & Taxation Commissioner would therefore have been justified if he had cancelled the licence under r. 36(23) and put the liquor vend to reauction for the remaining period of the financial year.
Instead of taking this drastic step of cancellation of contract, the Deputy Excise & Taxation Commissioner served the respondents with the impugned notice of demand for payment of the first fortnightly instalment of Rs. 13,000.
The respondents were bound to pay the defaulted instalment on the due date but without complying with the notice of demand moved the High Court under article 226 of the Constitution challenging the demand on the ground that the licence fee partakes of the nature on an excise duty.
As already stated, the High Court following its decision in Kanhiya Lal 's case struck down the notice of demand.
The result has been that the respondents enjoyed the privilege of retail vend of country liquor, Butana for the entire period without payments of any licence fee.
On merits, learned counsel appearing for the respondents had nothing to urge against the impugned notice of demand.
The result therefore is that the appeals succeed and arc allowed with costs throughout.
The judgment and, orders of the High Court dated November 11, 1969 quashing the impugned notice of demand served on the respondents are set aside and the writ petitions filed by the respondents are dismissed.
N.V.K. Appeals allowed.
[/INST]In exercise of the powers conferred by Section 36 of the Maharashtra Secondary and Higher Secondary Boards Act, 1965, the State Board has framed the Maharashtra Secondary and Higher Secondary Education Boards ' Regulations 1977.
These regulations were sanctioned by the State Government under sub section 3 of section 36 on 11th July, 1977 and came into force on 15th June, 1977.
These regulations were applied to the Secondary School Certificate examination and Higher Secondary Certificate examination held in October, 1977 and thereafter Regulation 104 refers to verification of marks obtained by a candidate in a subject.
Clause (1) thereof restricts verification to checking whether all the answers have been examined and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer book and whether the supplements attached to the answer book mentioned by the candidate are in tact.
Clause (1) also speaks of revaluation and prohibits revaluation of the answer books or supplements.
Clause (3) of the said regulation also speaks of right to claim revaluation by an examinee and is to the effect: "no candidate shall claim, or be entitled to revaluation of his answer or disclosure or inspection of the answer books or other documents as these are treated by the Divisional Board as most confidential.
A number of unsuccessful and disappointed candidates who had 30 appeared for the Higher Secondary Certificate and Secondary School Certificate public examinations conducted by the Divisional Boards functioning under the supervision and control of the Maharashtra State Board of Secondary and Higher Secondary Education filed a batch of 39 Writ Petitions in the High Court of Bombay challenging the validity of Clauses (1) and (3) of regulation 104 of the Maharashtra Secondary and Higher Secondary Education Boards Regulations 1977 and seeking the issuance of writs directing the Board to allow them disclosure and inspection of their answer books in the public examination, the results whereof had already been published and to conduct a revaluation of such of the answer papers as the petitioners may demand after the inspection.
The writ petitioners had based their challenges against the validity of clauses (1) and (3) of Regulation 104 on three main grounds: (1) The Impugned clauses were violative of the principles of natural justice; (2) Both clauses (1) and (3) were ultra vires and void on the ground of their being in excess of the regulation making, powers conferred on the Board by Section 36 of the Act; and (3) The impugned provisions contained in clauses (1) and (3) were highly unreasonable and since the regulations framed by the Board are in the nature of bye laws.
they are liable to be struck down on the ground of unreasonableness The High Court divided the Writ Petitions into two groups; the first group consisting of cases where the right of inspection alone was claimed and second group comprising of cases where the petitioners had claimed also a further right to demand a revaluation of the answer papers.
The High Court allowed the petitions by two separate judgments one in respect of the first group holding that clause (3) of regulation 104 which lays down that no candidate shall be entitled to disclosure or inspection of the answer books or other documents as these are to be treated as most confidential is ultra vires on the ground of its being in excess of the regulation making power of the Board and by another judgment in the second group holding that the provisions contained in clause (1) of regulation 104 that no revaluation of the answer books or supplements shall be done is ultra vires the regulation making power conferred by section 36 and is also illegal and void on the ground of its being manifestly unreasonable.
Aggrieved by these judgments rendered in the two groups of cases the appellant Board preferred these appeals after obtaining Special Leave of the Court.
Allowing the appeals, the Court ^ HELD: 1:1.
Regulation 104(3) of the Maharashtra Secondary and 31 Higher Secondary Board Regulations 1977 is valid.
The process of evaluation of answer papers or subsequent verification of marks under clause (3) of regulation 104 does not attract the principles of natural justice since no decision making process which brings about adverse civil consequences to the examinees is involved.
Non disclosure or disallowance of the right of inspection of the answer books as well as denial of the right to ask for a revaluation to examinees who are dissatisfied with the results do not visit them with adverse civil consequences.
There is no substance in the contention that every adverse verification involves a condemnation of the examination behind their back and hence.
constitutes a clear violation of principles of natural justice.[62E, 41D E, F G] 1:2.
The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried into such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners.
[41H; 42A] Union of India vs M.L. Kapur, ; ; referred to.
The question whether a particular piece of delegated legislation whether a rule or regulation or other type of statutory instrument is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation etc.
and also the object and purpose of the Act as can be gathered from the various provisions of the enactment.
[43 A B] 2:2.
The Court cannot substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the object and purposes of the Act and it cannot sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court the impugned provisions will not help to serve the object and purpose of the Act.
So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the Court should not concern itself with the wisdom or efficatiousness of such rules or regulations.
It is exclusively within the province of the legislature and its delegate to determine as a matter of policy, how the provisions of the statute can best be implemented and what measures, 32 substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act.
It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation making power conferred on the delegate by the statute.
[43 C F] 3:1.
The view taken by the High Court that clause (3) of the regulation 104 is ultra vires on the ground of its being in excess of the regulation making power conferred on the Board is not correct.
[45 B] 3.2.
Any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground, that, in its opinion, it is not a wise or prudent, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act.
The legislature and its delegates are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.
None of these vitiating factors are shown to exist in the present case.
[46E F] 3:3.
The provisions of sections 19 and 36 of the Act make it clear that a duty is cast on the State Board to formulate its policy as to how the examinations are to be conducted, how the valuation of the performances of the candidates is to be made and by what procedure there results are to be finalised, compiled and released it is perfectly within the competence of the Board, rather, it was its plain duty, to apply its mind and decide as a matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have been announced and whether any right to claim revaluation of the answer book should be recognised or provided for.
All these are undoubtedly matters which have an intimate nexus with the objects and purposes of the enactment and are, therefore, within the ambit of the general power to make regulations conferred by sub section 1 of section 36, and also within the scope of clauses (c), (f) and (g) of sub section 2 of the said section.
[44F H, 45 A B] 4:1.
Clause (3) or Regulation 104 is not in the nature of a bye law and it is not an unreasonable provision.
[46 H] 33 4:2.
While the power to make regulations for the purpose of carrying into effect the provisions of the Act, is conferred on the Board by section 36, section 38 confers a distinct power of making bye laws.
The legislature, while enacting sections 36 and 38 must be assumed to have been fully aware of the niceties of the legal position governing the distinction between rules/regulations properly so called and bye laws.
When the statute contains a clear indication that the distinct regulation making power conferred under section 36 was not intended as a power merely to frame byelaws, it is not open to the Court to ignore the same and treat the regulations made under section 36 as mere bye laws in order to bring them within the scope of justifiability by applying the test of reasonableness.
[47 E G] 4.3.
Regulations made by the Board under section 36 are in the nature of statutory rules and they have the full rigour and force of sub ordinate legislation made by a delegate duly empowered in that behalf by the legislature.
[49 D E] Sophy Kelly vs The State, 69 Bombay, L.R. 186 overruled.
The provisions contained in a statutory enactment or in rules/regulations framed thereunder have to be so construed as to be in harmony with each other and where under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise cover the said topic.
[52 B C] 5.2.
Regulation 102(2), if properly construed in the setting in which it occurs only confers a suo motu power on the Divisional Board to amend the result of the examination in respect of any candidate or candidates on its being found that such result has been affected by error, malpractice, fraud, improper conduct, etc.
The error referred to in the said provision has the context to be understood as being limited to an error rising in consequence of malpractice, fraud, improper conduct or other similar matter of whatsoever nature.
Clauses (1) and (3) of regulation 104 must be read together and not in isolation.
Clause (3) of regulation 104 contains is fact a mandate to the Divisional Boards to treat the answer books and documents as confidential and lays down that no candidate shall be entitled to claim disclosure or inspection of the said confidential books and documents.
Therefore, the High Court ought not to have invoked the doctrine of implied power and obligation, in the instant case, for the purpose of holding that because the right of verification has been conferred in clause (1) of regulation 104, there is an implied power in the examinees to demand disclosure and inspection and a corresponding implied obligation on the part of the Board to cause such a demand.
[52 C D, H; 53 A; C D] 34 5:3.
Unless it can be said that a bye law is manifestly unjust, capricious, inequitable or partial in i s operation, even a bye law cannot be struck down by a Court on the ground of unreasonableness merely because the Court thinks that it goes further than is necessary or that it does not incorporate certain provisions which, in the opinion of the Court, would have been fair and wholesome.
The responsible representative body entrusted with the power to make bye laws must ordinarily be presumed to know what is necessary, reasonable, just and fair.
The Court should be extremely reluctant to substitute its opinions and views as what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and the departments controlling them.
The Court cannot make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate, if a purely idealistic view as opposed to a pragmatic one were to be propounded The Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye law which would bring about the result of rendering the system unworkable in practice.
[53 F H; 55 A] Trustees of the Port of Madras vs Aminchand Pyarelal and ors. ; referred to.
Kruse vs Johnson [1898] 2 Q.B. and Slattery vs Naylor [1888] 3 A.C. 446 quoted with approval.
What constitutes fair play depends upon the facts and circumstances relating to each particular given situation.
If it is found that every possible precaution has been taken and all necessary safeguards provided to ensure that the answer books inclusive of supplements are kept in safe custody so as to eliminate the danger of their being tampered with and that the evaluation is done by the examiners by applying uniform standards with checks and cross checks at different stages and that measures for detection of malpractice, etc. have also been effectively adopted, in such cases, it will not be correct on the part of the Courts to strike down the provisions prohibiting revaluation on the ground that it violates the rules of fair play.
Further, the candidates have taken the examination with full awareness of the provisions contained in the regulations and in the declarations made by them in the form of application for admission to the examination they have solemnly stated that they fully agree to abide by the regulations issued by the Board.
[59 A C; 60 F G] 6:2.
That the University of Bombay and some other Universities have 35 made provisions permitting candidates to demand revaluation, has little relevance for the purpose of deciding about the legal validity of the impugned regulations framed by the Board.
In the public interest, the results of public examinations published should have some finality attached to them.
If inspection, verification, in the presence of the candidates and revaluation are to be allowed as of right it may lead to gross delays and indefinite uncertainly particularly in regard to the relative ranking etc of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process.
[60 H; 61 A D]
</s>
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<s>[INST] Summarize the judgementAppeal No. 96 of 1963.
Appeal by special leave from the judgment dated October 13, 1960, of the Punjab High Court in Income tax Case No. 21 of 1958.
K.N. Rajagopala Sastri and R.N. Sachthey, for the appellant.
A.V. Viswanatha Sastri and N.N. Keshwani, for the respondent.
November 18, 1963.
The Judgment of the Court was delivered by SHAH J.
M/S Indian Woollen Textiles Mills Amritsar hereinafter called 'the assessee ' had at different places in India, branches one of which was an industrial undertaking conducted in the name of Eldee Velvet and Silk Mills called for the sake of brevity 'Eldee '.
"Eldee" had advanced Rs. 3,21,460 to another concern, the Bombay Fine Worsted Manufacturers ' Castle Mills hereinafter called 'Castle '.
In the assessment year 1951 52, the assessee claimed under section 15C of the Indian Income tax Act,1922, exemption from tax in respect of 6% of the capital employed in 'Eldee ' as a newly established undertaking and sought to include in the computation of the capital so employed Rs. 3,21,460 advanced to 'Castle '.
The Income tax Officer, Special Circle Amritsar, and the Appellate Assistant Commissioner rejected the claim.
But the Income tax Appellate Tribunal modified the assessment and directed in clusion of the amount advanced to 'Castle ' in the computation of capital invested for the purpose of 429 section 15C.
An application submitted under section 66(1) of the Indian Income tax Act to the Tribunal to refer a question which it was contended by the Commissioner arose out of the order of the Tribunal was rejected and the petition of the Commissioner under section 66(2) for an order directing the Tribunal to state the case and refer it to the High Court was also dismissed.
With special leave the Commissioner has appealed to this Court.
The question in dispute before the revenue authorities was whether the business called 'Castle ' at Bombay was a branch of the assessee.
The Appellate Assistant Commissioner rejected the claim of the assessee to include the amount of Rs. 3,21,460 in the capital employed in the undertaking 'Eldee ', because in his view there were in these two undertakings the same eight partners with a share of /2/(two annas) each, and that the constitution of both the undertakings being the same, 'Castle ' could not be regarded as a separate entity.
The Tribunal disagreed with the view of the Appellate Assistant Commissioner, relying upon only one circumstance viz., that in the assessment for the year 1951 52 the income from 'Castle ' had not been computed and included in the assessment of the assessee.
It did not consider the other questions whether the constitution and ownership of the two businesses "were the same".
The High Court declined to require the Tribunal to state the case holding that the finding of the Tribunal was one of fact as it was based on the inference arising from the non inclusion by the Income tax Officer in the assessment in question of the income of 'Castle ' and that "the factor taken into consideration by the Appellate Tribunal in coming to the conclusion, it did," was a relevant factor.
Section 66(2) invests the High Court with jurisdiction to require the Appellate Tribunal to state a case and to refer it, if the Appellate Tribunal has refused to state the case on the ground that no question of law arises, and the High Court being approached 430 by the aggrieved party within the period of limitation prescribed, is not satisfied about the correctness of the decision of the Appellate Tribunal refusing to state the case.
Under the Income tax Act it is for the Tribunal to decide all questions of fact: the High Court has the power merely to advise the Tribunal on questions of law arising out of the order of the Tribunal.
In so advising the High Court must accept the findings of the Tribunal on matters of appreciation of evidence.
But the refusal of the Tribunal to state a case for the opinion of the High Court, on the view that a question of law does not arise out of the order is not conclusive.
The High Court has the power to call upon the Tribunal to state the case if in its view a question of law arises out of the order of the Tribunal.
Such a question may arise out of the findings of the Tribunal, and also if the Tribunal has misdirected itself in law in arriving at its finding.
It is not open to the Court to discard the Tribunal 's finding of fact, if there is some evidence to support the finding of the Tribunal on a question of fact, even if on a review of the evidence the Court might have arrived at a different conclusion.
It must however appear that the Tribunal had considered evidence covering all the essential matters before arriving at its conclusion.
If the conclusion of the Tribunal is based upon some evidence ignoring other essential matters, it cannot be regarded as a finding not giving rise to a question liable to be referred to the Court.
Non inclusion of the income of 'Castle ' in the assessment of the assessee may have been a relevant circumstance, but its effect had to be considered in the light of other circumstances on which the Appellate Assistant Commissioner had relied.
Moreover, reliance placed by the Tribunal upon the single circumstance on which its decision was founded had proceeded on an assumption that in the previous year to the year of assessment 1951 52, 'Castle ' had carried on business and had earned income.
The observations made by the Appellate Assistant Commissioner about 431 'Castle ' being separately assessed at Bombay in the status of a registered firm apparently refer to assessment of that business in subsequent years and not in the year of assessment 1951 52.
The conclusion of the Tribunal therefore suffers from a double infirmity: it assumes the only fact on which its conclusion is founded and ignores other relevant matters on which the Appellate Assistant Commissioner relied in support of his conclusion.
The Tribunal has therefore misdirected itself in law in arriving at its finding, and in refusing to require the Tribunal to state the case and to refer it, the High Court was, in our view, in error.
The appeal is therefore allowed and the proceedings are remanded to the High Court with a direction to proceed according to law.
Costs in this appeal will be costs in the High Court.
Appeal allowed and Case remanded.
[/INST]The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred.
The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent.
Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc.
it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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<s>[INST] Summarize the judgementminal Appeal No. 183 of 1967.
Appeal by special leave from the judgment and order dated August 9, 1967 of the Patna High Court in Criminal Writ Jurisdiction Case No. 31 of 1967.
M. C. Setalvad, R. L. Kohli and J. C. Talwar, for the appellant.
B.P. Jha, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
The appellant (Rameshwar Lal Patwari) applied under article 226 of the Constitution and section 491 of the Code of Criminal Procedure for a writ or order in the nature of habeas corpus for his release from detention in Bhagalpur Central Jail in pursuance of an order of detention passed by the Governor of Bihar on July 4, 1967 under section 3(1)(a)(iii) of the .
He was arrested under the order on July 11, 1967 and was served on July 13, 1967 with a copy of the grounds on which his detention was based to enable him to make a representation.
He made a representation but his release was not recommended.
His application in the High Court was also dismissed.
He now appeals by special leave.
The order of the Governor recites that it is necessary to make an order for his detention to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
The grounds which were furnished to him were as follows : (1) He is a prominent businessman of Dumka and with the association of Sarvashri Mulchand Choudhury, Kanhaiaya Choudhury, Fulchand Modi, Pir Mohammad (Bengaria P.S.) Shikaripara and others he indulges in black marketing of foodgrains.
He has four trucks, one jeep and a car which have been registered in the names of his relatives Truck No. BRL 1331 which is registered in the name of his brother in law (sala).
Sri Harichandra Agarwala was caught on 29th December, 1966 at Ranibabal near Mashanjor while carrying 95 bags of peddy for illegal trade.
In this connection a case under the Essential Commodities Act has been instituted.
He is on bail in this case.
(2) His trucks always take to wicked routes to Saithia (West Bengal) and he himself pilots them.
(3) A businessman of Barahiya disclosed that he (Rameshwar Lal Patwari) visited Barahaiya on several occasions and purchased gram, gramdal under various names and smuggled them to West Bengal.
507 (4) On the night of 2 2 66, Sri R. section Singh, 1st Class Magistrate along with Sub Divisional Officer Sadar, other Magistrate and police officers, raided the house of Sri Rameshwar Lal Patwari and found aft kinds of foodgrains in huge quantity.
His stock register was maintained in irregular way.
fie could not produce the sale register and took the plea that it was produced before the Income Tax Officer.
It was found that he has been dealing in foodgrains without any licence.
A case has been instituted in this connection in which he is on bail.
(5) Shri Babu Ram Bikaneria, owner of a Rice Mill at Saitha District Birbhum (West Bengal) visited Dumka on 26 11 66 and told him (Sri Rameshwar Lal Patwari) to supply gram and gramdal.
He (Sri Rameshwar Lal Patwari) promised to supply gram and gramdal.
On 7/8 12 66 Sri Mulchand Choudhury of Rameshwar, who is his agent sent his truck No. BRJ 2029 load ed with gram and gramdal to Saitha through Mahesh Kola Check post.
His truck No. BRL 1366 and van BRL 2005 were found at Rameshwar on 7 12 1966 wherefrom he smuggles foodgrains to West Bengal.
He purchases gram and gramdal through Gopal Mandal of Lakhisarai (District Monghyr) and smuggles them to West Bengal.
In the circumstances, the State Government are satisfied that if Shree Rameshwar Lal Patwari is allowed to remain at large, he, will indulge in activities prejudicial to the maintenance of supplies and services essential to the community.
For prevention of such activities, the State Government consider his detention necessary.
Shri Rameshwar Lal Patwari is informed that he may make a representation in writing against the order under which he is detained.
His representation, if any, may be addressed to the Under Secretary to Government, Poli tical (Special) Department, Bihar, Patna and for warded through the Superintendent of the Jail as soon as possible.
By order of the Governor of Bihar.
" These grounds were challenged by the appellant in the High Court.
According to him some of them did not exist in fact and others were vague or irrelevant.
The High Court scrutinised them and came to the conclusion that his complaint had no substance.
In this appeal he urges the same contentions and submits that the High Court was in error in its conclusion.
508 Before we consider these grounds in the light of arguments before us, we may say a few words about the and the extent to which the exercise of powers under that Act can be questioned before courts.
Article 22(1) and (2) of the Constitution lay down that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest, nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice and further that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours and no person shall be detained beyond that period (excluding the time necessary for the journey to the court of the Magistrate) without the authority of the Magistrate.
To this there is an exception in sub cl.
(b) of cl.
(3) of the article.
It says that these provisions shall not apply to any person who is arrested or detained under any law providing for preventive detention.
There are, however, other safeguards.
Clause (4) of the article provides that no law providing for preventive detention shall authorise the ,detention of a person for a longer period than three months unless an Advisory Board has reported before the expiration of that period of three months that there is in its opinion sufficient cause for such detention.
There are other provisions prescribing other checks with which we are not presently concerned.
In pursuance of this power Parliament has enacted the .
The by its third section enables the Central Government or the State Government, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, to make an order that such person be detained.
There are other grounds on which the power to detain may also be exercised but they do not apply here.
This power is also conferred on some officers named in the section.
When an officer makes an order he has to report to the State Government together with the grounds on which the order is based and in the like manner the State Government has to report to the Central Government.
Section 11 then provides that where an Advisory Board reports sufficient cause for the detention of a person, Government may confirm the detention and continue it for such period as it thinks fit.
If the Advisory Board reports that there is no sufficient cause Government must revoke the order and release the detenu.
Section 11 A pow prescribes the maximum period of detention.
It will thus be seen that the report of the Advisory Board plays ,in important part.
In the present case the report of the Advisory Board has been produced.
It reads "In our opinion, the grounds of detention served on the detenu also are fairly particular and generally well 509 founded.
It cannot, therefore, be said that there is no material for his detention in the way in which he had been indulging in the transport of foodgrains from Bihar to West Bengal frequently.
It cannot be held that the order of detention passed upon him is unreasonable.
The order in his case also cannot be disturbed.
Sd/ section C. Mishra 25 8 67.
Sd/ R. K. Choudhury.
Sd/ U. N. Sinha.
" The appellant contends that the Advisory Board has failed to notice also that the grounds furnished to him were vague and irrelevant and some of them did not exist in law.
Now the law on the subject of, Preventive, Detention has been stated over and over again and it is not necessary to refer to all that has been decided by this Court on numerous occasions.
We ,shall refer to what concerns this case.
The formation of the opinion about detention rests with the Government or the officer authorised.
Their satisfaction is all that the law speaks of and the courts are not constituted an appellate authority.
Thus the sufficiency of the rounds cannot be agitated before the court.
However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter.
It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors.
The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others.
Since the detenu is not placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention.
Similarly, if a vital ground is shown to be non existing so that it could not have and ought not to have played a part in the material for consideration, the court may attach some importance to this fact.
Thus it was in Shibban Lal Saksena vs U.P. (1) that when Government itself confirmed the order on one ground rejecting the other, the order was held unsustainable.
This Court applied the case of the Federal Court in Keshav Talpade vs The King Emperor(2) and held that the detention on the ground which survived could not be .allowed to stand.
The following observations may be quoted .
The detaining authority gave here two grounds for detaining the petitioner.
We can neither decide whether these grounds are good or bad, nor can we attempt (1) (1954] 1 S.C.R. 418.
(2) 510 to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.
To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.
In such cases, we think, the position would be the same as if one of these, two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.
" This case is strongly relied upon by Mr. Setalvad for reasons which will soon appear.
The other side relies upon observations in Bhim Sen vs State of Punjab(1) where blackmarketing was considered a sufficient ground for detention.
No doubt blackmarketing has at its base a shortening of supplies because blackmarket flourishes best when the availability of commodities is rendered difficult.
It has a definite tendency to disrupt supplies when scarcity exists or scarcity is created artificially by hoarding to attain illegitimate profits.
Indulging in blackmarketing is conduct which is prejudicial to the maintenance of supplies.
It is hardly necessary to read supplies conjunctively with services as was contended although cases may exist where supplies and services may both be affected.
The word 'and ' is not used conjunctively but disjunctively.
If sweepers strike, no question of disrupting supplies arises but ser vices essential to the life of the community will certainly be disrupted.
Looked at from this angle, can we say that the detenu was supplied grounds which were not vague or indefinite or irrelevant or non existing '? The grounds are five in number.
Putting aside the first and fifth rounds for the time, we may refer to the second, third and fourth grounds first.
The second ground says that "his trucks always take to wicked routes to Saithia (West Bengal) and he himself pilots them." This ground is extremely vague.
It does not mention a single instance of a truck taking a particular route so that the detenu could prove to the satisfaction of the Advisory Board that the statement was false.
Bhim Sen 's case the conduct of the black marketer was shown in an appendix.
Here no particulars are furnished and beyond denying the allegation, the detenu cannot make effective representation.
The details could not be such as were required to be concealed in the public interest under section 7(2) of the Act.
The third ground that "a businessman of Barahiya disclosed that he (Rameshwarlal Patwari) visited Barahiya on several occasions and purchased gram, gramdal under various (1) ; 511 names and smuggled them to West Bengal" is equally vague.
Learned counsel for the State admitted that some details were necessary to give the detenu an opportunity.
It is obvious that without the names of shops, dates of purchase, etc.
it is next to impossible to controvert such an allegation.
The fourth ground speaks of a pending case in which the appellant is said to be on bail.
The grounds were furnished in July 1967.
The appellant was tried for the offence and acquitted as far back as February 1967.
This ground discloses carelessness which is extremely disturbing.
That the detaining authority does not know that the appellant was tried and acquitted months before, and considers the pendency of the case against him as one of the grounds of detention shows that due care and attention is not being paid to such serious matters as detention without trial.
If the appellant was tried and acquitted, Government was required to study the judgment of acquittal to discover whether all these allegations had any basis in fact or not.
One can understand the use of the case if the acquittal was technical but not when the case was held to be false.
In any event, even if there was no need to consider the result of the case the case could not be referred to as a pending case.
What is still more disquieting is the attempt to avoid admitting frankly that there has been a mistake in including this ground.
in the return this is what is said : "That the facts stated in paragraph 4 of the ground of detention are not non est.
Those facts stated in paragraph 4 even existed after acquittal.
In regard to the facts stated in paragraph 4 the prosecution failed to prove the prosecution case and, therefore, he was acquitted.
The detenu had full knowledge of the facts that he was acquitted by the Court in regard to the facts stated in paragraph 4 of the grounds of detention and, therefore, he was not handicapped in making a representation to the Advisory Board.
" This means that anything wrong or even false may be stated in the grounds leaving the detenu to deny it and prove his version.
The attempt to cover up the mistake is as futile as it is disingenuous.
This leaves over the first and fifth grounds ' The first charges the appellant with blackmarketing of foodgrains in conjunction with certain named persons.
No facts are mentioned and this part of the ground is equally vague.
No incident is cited except one.
The ground goes on to say that his trucks, jeep and car Ire registered in the names of his relatives.
One such truck is mentioned, namely, truck No. BRL 1331.
It is said to be registered in the name of his brother in law and it is further stated that it was 512 caught on December 29, 1966 at Ranibahal (near Mashanjor) while carrying 95 bags of paddy for 'illegal trade ' and that in this connection a case under the Essential Commodities Act has been instituted against 'him '.
It is hot clear who is meant the appellant or his brother in law.
In a notice from the District Supply Officer, Dumka it was stated : "It was learnt from your driver that on 29 11 66 (sic) at 3.50 a.m., ninety five bags of paddy (190 mds.) was coming from Ranibahal to Dumka in your truck BRL 1331 belonged to you.
" The appellant has denied that the paddy belonged to him.
He pointed out that in the notice it was admitted that the paddy was being taken to Dumka in Bihar, while in the grounds it was stated that it was on its way to West Bengal and that carrying of goods from Ranibahal to Dumka (both in Bihar) was no offence.
In his reply to the District Supply Officer the appellant had stated : "1.
I am a retail dealer in food grains holding foodgrain License No. 204 of 1966.
The truck bearing No. BRL 1331 does not belong to me.
The said 95 bags of paddy loaded on the said truck No. BRL 1331 does not belong to me.
The fact is that the said 95 bags of paddy belong to Shri Prahlad Rai Giluka of village Banskuli, P. section Ranishwar who is a cultivator which he had agreed to sell to me on condition that the delivery of the said paddy will be made to me at Dumka.
I therefore, request that the cause shown above be accepted and the proceedings, if any, may kindly be dropped.
" It appears that Prahlad Rai Giluka of Mouza Banskuli, P. section Ranishwar confirmed this before the District Supply Officer by stating as follows : "1.
That your petitioner is a cultivator and owns more than 100 bighas of Dhani lands at Mouza Murgani Ranibahal and Kumnirdaha and other villages which are contiguous villages.
That the petitioner 's son Prabhudayal Giluka is to start a business and as such there was necessary (sic) of fund and the petitioner proposed to sell 95 bags of paddy to one Rameshwar Lal Patwari of Dumka from his Murgani and Ranibahal land.
513 4.
That it was agreed that the paddy will be delivered at Dumka where the price will be paid.
That the petitioner accordingly engaged the truck of one Haris Chandar Agarwala, his BRL 1331 and asked his Munshi Mahadev Pal to load 95 bags of paddy in the truck.
That when the paddy in question was in the process of loading at Ranibahal the paddy was seized by the District Supply Officer on 29 12 66. 8. 9. 10.
That the paddy in question is not involved in any offence the same should be released forthwith.
" When these documents came to be filed, the return of the State Government made the following reply and avoided the issue: "4 It appears that the notice was issued on the statement of the driver of the truck who stated that he was bringing 95 bags of paddy from Ranibahal to Dumka in the truck belonging to the appellant.
The statement of the driver clearly shows that the truck belonged to the appellant.
The driver did not ' tell anything about the facts stated in annexure 'D ' to special leave paper book (Page 49 to 51).
" This shows that there was no inquiry at all.
The alleged statement of the driver was accepted and it was assumed that the paddy was being taken to West Bengal.
At least the explanation of the persons concerned could have been obtained.
This is clearly a case of jumping to a conclusion which is being lamely justified, when it is questioned with written record.
In these circumstances there is much reason to think that this ground probably did not exist although we are not in a position to say that it is non existing.
The fifth ground mentions that one Babu Ram Bikanaria wanted gram and gramdal at his Rice Mill at Saitha District Birbhum (West Bengal) and visiting Dumka contacted the appellant.
The latter promised to supply gram and gramdal.
On 7/8 December 1966 one Mulchand Choudhury sent truck No. BRJ 2029 loaded with gram and gramdal to Saitha through Mahesh Kola checkpost.
Further Mulchand 's truck No. BRL 1366 and van BRL 2005 were found at Raneshwar on December 7, 1966 from where 'he ' smuggles foodgrains to West Bengal. 'He ' pur chases ram and gramdal through Gopal Mandal of Lakhisarai (Dist.
Monghyr) and smuggles them to West Bengal.
It is again Sup.
C1/68 2 514 not clear who this 'he ' is.
The appellant has denied that he does in gram and gramdal and has any connection with Gopal Mandal of Lakhisarai or knows him.
He has denied all contact with such persons.
No reply to this was given in the return filed in this Court.
It appears that there may be suspicion that the appellant may be connected with some blackmarketing.
We are not concerned with the sufficiency or the reasonableness of the grounds.
In this case at least two grounds are vague, one ground is found to be false and of the remaining in one there is no explanation and in the other there is a lame excuse that the driver of the truck did not furnish the full information.
The case is thus covered by our rulings that where some grounds are found to be non existing or are cancelled or given up, the detention cannot be justified.
It is further covered by our decisions that if the grounds are not sufficiently precise and do not furnish details for the purpose of making effective representation the detention can be questioned.
This case displays both these defects and it is a matter of great regret that powers of detention without a trial, which should be ,exercised with the greatest care and attention have been exercised in this case with such disregard for truth and accuracy.
We accordingly allow the appeal and hold the detention of the appellant to be illegal and order his release.
G.C. Appeal allowed.
[/INST]The workmen of the respondent company raised an industrial dispute about bonus claimed by them for the year 1960 61.
The Industrial Tribunal applying the Full Bench Formula held that the sum needed for rehabilitation of machinery exceeded the surplus otherwise available and therefore no bonus was payable.
Against this decision of the Tribunal the workmen appealed to this Court and raised various objections as to the manner in which the available surplus was calculated by the Tribunal.
HELD: (i) On the facts and the evidence produced in the case the life of the respondent company 's machinery should be taken at an average of 15 years if the machinery is worked in two shifts.
and 10 years if it is worked in three shifts.
The artificial rule laid down in the Income tax Act for calculation of notional depreciation can provide no criterion at all for determining the life of the machinery, and the Tribunal committed an error in proceeding on that basis.
[319 H] The life of machinery taken in other cases is also not a correct basis for fixing the life of machinery in a particular case.
Various factory come in that affect the useful life of a machinery.
Factors such as the quality of the material used in the machines, and the nature of the material on which the machines are to operate, very materially affect their life.
Further the life of a machine will also depend on the manner in which it is handled in a particular factory.
Consequently the correct principle is to determine the life of machinery in each case on the evidence adduced by the parties.
[319 E F; 320 D] Further what has to be determined is the useful life of the machinery rather than its economic life.
In fact one of the very major considerations which should be taken into account is the actual practice of the manufacturers using the machinery and, if the evidence be available, to find out how long the manufacturers continue to use the machinery as a rule.
[324 D H] The fact that in the Full Bench Formula the breakdown value of machinery is taken at 5% is certainly an aspect to be taken into account.
but it cannot be accepted that a machinery should be deemed to have useful life until it reaches the stage of having a breakdown value of 5% No such absolute rule can be inferred.
[328 A] The Tribunal was wrong in not taking into account machinery installed during the bonus year itself for making provision for rehabilitation.
If any machinery is installed in.
the bonus year, the company would be 312 justified in claiming that it must immediately Start making provision for its rehabilitation, though the period for rehabilitation of that machinery would only start at the end of the bonus year.
[330 A C] ' (ii) The multipliers given by the company in the schedule originally submitted by the company which were not objected to by the workers were the correct basis for Calculation of the rehabilitation cost and the Tribunal should not have departed from them.
There was no justification for taking an average of the multipliers submitted at first and those submitted thereafter in a second schedule.
The Tribunal also was not justified in reducing the multipliers on the ground that the new machines which would be purchased to replace the original ones would necessarily have more ' productive capacity.
There was no material at all from which the Tribunal could justifiably have inferred that the increase in production would be so.
material as to, attract the principle of apportionment laid down by this Court in the case of the Associated Cement Companies Ltd. 1331 A F; 332 (iii) In calculating the rehabilitation requirement for the machinery the depreciation provision made in accordance with the principles of commercial accounting has to be deducted from the amount that would be required to purchase the new machinery for replacement.
The contention that deduction should be made only of depreciation reserves available to the employer cannot be accepted.
SUch an interpretation militates against the very purpose for which rehabilitation provision is allowed, namely, to enable the industry to cover the difference between the amount of depreciation which is recouped by making provision for it in accoromance with the, principles of commercial accounting and the amount that would be required to purchase the new machinery for replacement.
Therefore, in the present case, the Tribunal erred when in calculating the provision for rehabilitation it took the entire price of the replacement machinery as required to be provided, entirely out of profits without reducing the price to the extent of the depreciation provided for in the accounts.
[333 E 334 B F] (iv) The claim of the workmen that the sum shown in the balance sheet of the company as development rebate reserve should be deducted from the available surplus must be allowed.
The mere statement of the General Manager on affidavit to.
the effect that the reserves had been utilised as part of the working capital could not be aceepted as evidence of the fact.
When the balance sheet itself showed that cash amounts in the form of fixed deposits were available which were far in excess of the development rebate reserve in question, there would be No. justification for holding that this development.
rebate reserve was not available as a liquid asset and had been included by the company in the working capital.
This development rebate reserve was a liquid asset available for rehabilitation and consequently liable to be deducted when calculating the rehabilitation requirement.
[335 A G] (v) If some.
machines have fully run out their lives, they must necessarily be replaced out of resources available immediately and there would be no justification for keeping the available resources in reserve for future rehabilitation while not providing out of those available resources for immediate.
replacement of machinery.
There is also the aspect that an employer in order to claim more and, more rehabilitation provision will have a tendency to keep old blocks of machinery running and to avoid adoption of such a device it would be fair that he is required to utilise available resources at the very first opportunity when the old blocks of machinery require replacement and claim annual provision for future only in respect of that machinery which will require replacement later 313 on.
Consequently, in the present case the depreciation provision and the available development rebate reserve must be taken into account when calculating the annual provision for rehabilitation required for replacement of the earliest installed machinery until it was exhausted, whereafter 'the annual requirement for the remaining blocks of machinery would have to be calculated, ignoring these available resources.
[336 G H; 337 C D] (vi) For the purpose of working 'out return on working capital in the year of bonus the origin of the fund used as working capital is immaterial and it cannot be said that the return must be allowed only on reserves used as working capital and not on any other funds used as such.
However the fund must be available for investment before a claim can be made by the employer for a return on it.
[340 E F] But, the mere existence of reserves and funds at the beginning of the year, even taken together with their existence at the end of the year cannot lead to any inference that these reserves and funds must have formed part of the working capital during the year and could not form part of other items such as fixed deposits, investments etc.
The affidavit filed by the company in this connection did not exclude the possibility that they were utilised for purposes other than that of working capital.
in the balance sheet the amounts which represented fixed assets, fixed deposits, investments and other loans and.
advances could not be classified as part of the working capital.
The items representing working capital were current assets, stock in trade, sundry debts, bank and cash.
balances, certain loans and advances and insurance and other claims.
The items representing working capital had a total value of Rs. 498.02 lacs.
Deducting from this the sum of Rs. 377.34 lacs available from subscribed capital or other sources.
there remained a balance of Rs. 120.68 lacs which must have necessarily come out of the various reserves including the depreciation, and this amount at least must be held to represent resources actually used as working capital during the year by the company.
On this amount it would be fair to allow a 4% return to the company.
[344 F H; 347 D E] (vii) The company 's claim that half the amount from the following sources, namely, (1) the profit in the profit and loss account worked out at the end of the year, (2) depreciation reserve for the year, (3) development rebate for the year, (4) value of discarded fixed.
assets written off should be treated as 'a fund which was available during the bonus year for being available for being utilised as working capital, could not be accepted.
There was nothing to show whether any of these amounts became available to the company during the year and if so when they came available.
[347 F] (viii) In allowing 6% return on paid up capital in accordance with the Full Bench Formula no question could arise of deducting the amounts invested in subsidiary companies from the paid up capital because the said investment had not been held to have come out of paid up capital [348 [348 F] (ix) The income of the company from interest on fixed deposits was its extraneous income which accrued to the company without any contribution by the workmen.
this income had therefore to be excluded in calculating the available surplus.
At the same time the company could not on equitable grounds be permitted to claim the interest paid by it on its borrowings as business expenditure.
Therefore the interest on fixed deposits was to be treated as extraneous income only after deducting from it the interest paid on the borrowings.
[349 D F] 314 (x) The income received by the company from its foreign collaborators as commission on sales effected by the said collaborators of their own cars in India was extraneous income to which the company 's wOrkmen made no contribution.
It was not therefore to be taken into account in calculating the available surplus.
[349 C] (xi) Calculated in the above manner the available surplus came 10 Rs. 30.56 lacs.
The Tribunal was not right in its decision that the company was not in a position to pay bonus at all.
However, though the company had earned a large amount of profit in the year of bonus it had for quite a large number of years been running at a loss.
The available surplus being only Rs. 30.56 lacs, the workmen 's demand of bonus equivalent to six months ' wages amounting to Rs. 24 lacs was too high.
It would be just and proper to allow bonus at 20% of their annual wages which would come to Rs. 8.60 lacs.
[352 A E] Associated Cement Companies Ltd. Dwarka Cement Works, Dwarka vs Its Workmen & Anr. , Saxby & Farmer Mazdoor Union, Calcutta vs M/s. Saxby & Farmer (India) Ltd. , Workmen M/s. Saxby & Farmer (India) Pvt. Ltd. vs M/s. Saxby & Farmer (India) Private Ltd. C.A. 152/64 dr. 12 4 1965, The Millowners ' Association, Bombay vs The Rashuriya Mill Mazdoor Sangh, Bombay, The Honorary Secretary South India Millowners ' Association & Ors.
vs The Secretary, Coimbatore District Textile Workers ' Union.
[1962] 2 Supp.
S.C.R. 926, National Engineering Industries Ltd. vs The Workmen & Vice Versa, [1968] 1 S.C.R. M/s. Titaghar Paper Mills Co. Ltd. vs Its Workmen, [1959] Supp.
2 S.C.R. 1012, Millowners, Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, , Tata Oil Mills Co. Ltd. vs It 's Workmen & Ors.
; , Anil Starch Products Ltd. vs Ahmedabad Chemical Workers ' Union & Ors., , Khandesh Spg & Wvg.
Mills Co. Ltd. vs The Rashtriya Girni Karogat Sangh, Jalgaon, ; , Bengal Kagazkal Mazdoor Union & Ors.
vs Titagarh Paper Mills Company, Ltd., [1963] II L.L.J. 358 and Voltas Limited vs Its Workmen, ; , considered.
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<s>[INST] Summarize the judgement: Special Leave Petition (Crl.) No. 1383 of 1978.
From the Judgment and Order dated 3 1 1978 of the Punjab and Haryana High Court in Crl.
A. No. 1039/74.
K. L. Jogga and L. N. Gupta for the Petitioner.
Hardev Singh for the Respondent.
The Order of the Court was delivered by SHINGHAL, J. We have heard learned counsel for the parties at length.
Accused Bachan Singh, Gurnam Singh and Chanan Singh were convicted by the Sessions Judge of Gurdaspur of an offence under section 304 Part I read with section 149 I.P.C. and were sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1000/ .
They were also convicted of an offence under section 148 I.P.C. and sentenced to rigorous imprisonment for 2 years.
The remaining two accused Ravail Singh and Vir Singh were convicted of an offence under section 304 Part I read with section 149 I.P.C., but they were sentenced to rigorous imprisonment for 5 years and a fine of Rs. 500/ .
Further, they were convicted of an offence under section 147 I.P.C. and were sentenced to rigorous imprisonment for 1 year.
An appeal was filed by the accused against their conviction and sentence; and the State filed an appeal for their conviction and sentence under section 302 I.P.C. A revision petition was filed under 647 section 401 Crl.
P.C. for enhancement of the sentence of imprisonment and fine "to meet the ends of justice".
The High Court of Punjab and Haryana made an express order on December 9, 1974 that the revision petition would be heard alongwith the criminal appeal (No. 1039 of 1974) filed by the accused.
By its impugned Judgment dated January 3, 1978, the High Court dismissed the appeal which was filed by the accused, but enhanced the sentence of Bachan Singh, Gurnam Singh and Chanan Singh accused under section 304 Part I read with section 149 I.P.C. to rigorous imprisonment for life and of accused Ravail Singh and Vir Singh under the same section to rigorous imprisonment for 10 years.
While making that order, the High Court observed that the State appeal "for enhancement of punishment" was "partly accepted".
That is why all the five accused have applied to this Court for special leave under article 136 of the Constitution.
It has been argued by learned counsel for the accused that the High Court committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub section (3) of section 377 of the Code of Criminal Procedure.
It appears to us, however, that as the State Government did not file an appeal against the sentence under sub section (1) of section 377 Cr.P.C, and as it is not disputed before us that its appeal was directed against the acquittal of the accused for the offence under section 302 I.P.C., there is no justification for the argument that the High Court committed an illegality in not complying with the requirement of sub section (3) of that section for giving the opportunity to the accused of showing cause against the enhancement of the sentence or of pleading for their acquittal or for reduction of the sentence.
As has been stated, a petition was filed under section 401 Cr.
P.C. for enhancement of the sentence, and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under section 377.
It will be recalled that the High Court made an express order on December 9, 1974, for the hearing of the revision petition alongwith the appeal which had been filed by the accused.
The fact therefore remains that the High Court had before it the above mentioned appeals which had been filed by the accused and the State, and the revision petition under section 401 Cr.
P.C. for enhancement of the sentence.
While that court dismissed the appeal of the 648 accused, and allowed the appeal of the State in part, it forgot to make a reference to the revision petition while drawing up the operative part of its order.
That was an inadvertent mistake for, after reading the impugned judgment of the High Court, we have no doubt that it effectively disposed of both the appeals and the revision petition even though the wordings of the judgment in that respect were not quite appropriate.
But, even otherwise, there is no merit in the grievance of the accused that they were not given the opportunity of showing cause against the enhancement of the sentence or to plead for their acquittal or for reduction of the sentence.
The opportunity for pleading for acquittal was amply furnished at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for pleading for the reduction of the sentence.
That in fact was the subject matter of their appeal.
It is not disputed before us that the High Court heard the State appeal against the acquittal of the accused, alongwith the appeal which was filed by the accused, and that furnished further opportunity to the accused to plead for their acquittal, or reduction of sentence, or to show cause against the enhancement of the sentence.
There is thus no force in the argument to the contrary.
It has to be appreciated that in respect of the petition which was filed under section 401 Cr.P.C. for the exercise of the High Court 's powers of revision, it was permissible for it to exercise the power of a Court of Appeal under section 386 for enhancement of the sentence, and if that had been done, there is no justification for the argument that the enhancement was illegal.
There is another reason for this view.
It was permissible for the High Court under section 397 Cr.
P.C. to call for and examine the record of the proceeding before the trial court for the purpose of satisfying itself as to the correctness, legality or "propriety" of any finding, "sentence" or order, recorded or passed by that inferior court.
The High Court 's power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, has been stated in section 401 Cr.
P.C. to which reference has been made above.
That includes the power conferred on a Court of Appeal under section 386 to enhance or reduce the sentence.
So when the record of the case was before the High Court in connection with the two appeals and the revision petition referred to above, there was nothing to prevent the High Court from invoking its powers under section 397 read with section 401 Cr.
P.C. and to make an order for the enhancement of the sentence.
649 There is thus no force in the argument to the contrary.
All the same, we gave an opportunity to the learned counsel for the accused to advance his arguments on question of sentence and all that he was able to argue was that as the accused had undergone a portion of the sentence and, as the offence was committed in 1972, the High Court was not justified in enhancing the sentence.
As is obvious, both these arguments are untenable and inconsequential because of the concurrent findings of the trial court and the High Court that the accused emerged from the house of accused Bachan Singh as soon as Sarup Singh (deceased) reached the place of occurrence, shouted that he should be taught a lesson for getting liquor recovered from them and beat him with their respective weapons.
It has been found further that while accused Vir Singh caught hold of the hair of the deceased and Ravail Singh caught hold of his legs and felled him on the ground, Gurnam Singh, who was armed with a datar, dealt belows on his right knee while Chanan Singh gave a kirpan blow on his left hand, and then accused Gurnam Singh gave a blow on his right knee while Chanan Singh gave a kirpan blow on his left hand and he, Gurnam Singh and Bachan Singh dealt further blows on his left leg near the knee, as a result of which the left leg was completely severed from the body.
It has also been concurrently found that the accused took away the chopped off leg of the deceased after wrapping it in his turban, and that he succumbed to the injuries soon after.
The facts and the circumstances which have thus been established by the evidence of Pal Singh P.W.4, and Nishan Singh P.W.5, on which reliance has been placed by both the courts, justify the view taken by the High Court that the accused deserved the sentence awarded to them by it.
Learned counsel for the accused tried to argue that the conviction of the accused was not justified on the merits, and took us through the finding in regard to the motive for the offence, the nature of the medical evidence, the plea of self defence taken by accused Bachan Singh and the relationship of eye witnesses Pal Singh P.W.4 and Nishan Singh P.W.5 with the deceased.
Apart from the fact that there was no occasion for us to consider those arguments, we have no hesitation in saying that they are without merit.
In the view we have taken, the petition for special leave is dismissed.
V.D.K. Petition dismissed.
[/INST]The respondent in the two appeals was compulsorily retired by an order dated 20 4 74 under Rule 16(3) of the All India Services (Death cum Retirement) Rules, 1958.
The respondent challenged the said order by filing a Writ Petition before the Andhra Pradesh High Court.
A single Judge of that Court allowed the petition.
The said decision was affirmed by the Division Bench in appeal.
Allowing the appeals by certificate the Court, ^ HELD: 1.
An analysis of Rule 16(3) of the All India Services (Death cum Retirement) Rules, 1958 clearly shows that the following essential ingredients of the Rule must be satisfied before an order of compulsory retiring a Government servant is passed: (i) that the member or the service must have completed 30 years of qualifying service or the age of SO years (as modified by notification dated 16 7 1969); (ii) that the Government has an absolute right to retire the Government servant concerned because the word "require" confers an unqualified right on the Central Government servant; (iii) that the order must be passed in public interest; and (iv) that three months ' previous notice in writing shall be given to the Government servant concerned before the order is passed.
[742 G H. 713 A B] .
The provision gives an absolute right to the Government and not merely a discretion, and, therefore implied it excludes the rules of natural justice.
[743 B] 2.
Compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of Article 311(2) of the Constitution.
In fact, after an employee has served for 25 or 30 years and is retired on full pensionary benefits, it cannot be said that he suffered any real prejudice.
[743 C D] 3.
The object of Rule 16(3) is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in the State service.
It is not necessary that a good officer may continue to be efficient for all times to come.
It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement.
In such a case compulsory retirement of an officer who fulfils the conditions of Rule 16(3) is undoubtedly in public interest and is not passed by way of punishment.
Similarly, there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest.
Since 737 they have almost reached the fag end of their career and their retirement would A not cast any aspersion, nor does it entail any civil consequences.
Of course, it may be said that if such officers were allowed to continue they would have drawn their salary until the usual date of retirement.
But, this is not an absolute right which can be claimed by an officer who has put in 30 years of service or attained the age of 50 years.
Rule 16(3) does nothing of the sort of attaching stigma.
[743 D H] 4.
The jurisprudential philosophy of Rule 16(3) and other similarly worded provisions like F.R. 56(j) and other rules relating to Government servants is noteworthy.
Rule 16(3) as it stands is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and is controlled only by those contingencies which are expressly mentioned in Article 311.
If the order of retirement under Rule 16(3) does not attract Article 311(2), it is manifest that no stigma of punishment is involved.
The order is passed by the highest authority, namely, the Central Government in the name of the President and expressly excludes the application of rules of natural justice.
[744A C] The safety valve of public interest is the most powerful and the strongest safeguard against any abuse or colourable exercise of power under this Rule.
Moreover, when the Court is satisfied that the exercise of power under the rule amounts to a colourable exercise of jurisdiction or is arbitrary or malafide, it can always be struck down.
While examining this aspect of the matter the Court would have to act only on the affidavits, documents annexures, notifications and other papers produced before it by the parties.
It cannot delve deep into the confidential or secret records of the Government to fish out materials to prove that the order is arbitrary or malafide.
The court, has, however, the undoubted power subject to any privilege or claim that may be made by the State.
to send for the relevant.
confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence.
[744 C E] The main object of Rule 16(3) is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the services are one of the pillars of our great democracy.
Any element or constituent of the service which is found to be lax or corrupt, inefficient or not up to the work or has outlived his utility has to be weeded out.
Rule 16(3) provides the methodology for achieving the object.
[744 E G; Before the Central Government invokes the power under Rule 16(3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to sub serve.
If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt with.
[744 G H] Compulsory retirement contemplated by Rule 16(3) is designed to infuse the administration with initiative and activism so that it is made poignant and piquant, specious and subtle so as to meet the expanding needs of the nation which require explanation of "fields and pastures now".
Such a retirement 738 involves no stain or stigma nor does it entail any penalty or civil consequences.
In fact the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administration.
[745 A B] An order of compulsory retirement on one had causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the services The employees should try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the service made in the larger interest of the country.
Even, if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to the country for every good cause claims its martyr.
[745 B D] Shyam Lal vs State of U.P., ; ; T. G. Shivcharan Singh and Ors.
vs The State of Haryana A.I.R. ; Union of India vs Col. J. N. Sinha and Anr., [1971] 1 SCR 791; M. V. Puttabhatta vs The State of Mysore and Anr., ; ; State of Assam & Anr. etc.
vs Prasanta Kumar Das etc.
[19731 3 S.C.R. 158 & 167; Tara Singh etc.
vs State of Rajasthan and Ors. ; ; Mayenghaon Rahamohan Singh vs The Commissioner (Admn.) Manipur and Ors., ; ; applied.
Before passing an order under Rule 16(3), it is not an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the officer during the long years of his service that he put in has to be considered from the point cf view of achieving higher standards of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service.
[750 C D] Under the various rules on the subject, it is not every adverse entry or remark that has to be communicated to the officer concerned.
The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact.
Some of these remarks may be purely innocuous or may be connected with general reputation of honesty or integrity that a particular officer enjoys.
It will indeed be difficult if not possible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character, not only of his performance but also of the reputation he enjoys.
Therefore on the ground of non communication of adverse remarks, the impugned orders cannot be set aside.
[748? G H, 749 A] R. L. Butail vs Union of India and ors., and union of India vs Col. J. N. Sinha and Anr., [1971] 1 SCR 791; applied.
State of Uttar Pradesh vs Chandra Mohan Nigam & Ors., ; referred to.
Madan Mohan Prasad vs State of Bihar and Ors., ; distinguished.
All that is necessary is that the Government of India, before passing an order under Rule 16(3) should consider the report of the Review Committee 739 which is based on full and complete analysis of the history of the service of A the employee concerned.
[753 F G] In the instant case, it was clearly pleaded by the appellants ill the High Court that the report of the Review Committee was in fact considered by the Government of India before passing the impugned order.
An examination of the confidential file also confirms this.
[753 G H 754 A] State of U.P. vs Chandra Mohan Nigam and Ors. and section R. Venkataraman vs Union of India and Anr., [19,9] 2 SCR 202; distinguished.
Chief Security officer, Eastern Railway & Anr.
vs Ajay Chandra Bagchi ; overruled.
In the instant case (a) there is no legal error in the impugned order passed by the Government of India, retiring Mr. Reddy.
The order is not arbitrary as could be seen from the material of the record.
The Government of India acted on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects.
There is nothing to show that Reddy was victimised in any way.
On the other hand, the history Of his service shows that he was always given his due.
He was taken by the I.P.S. and allotted the year 1952.
He was promoted to the selection grade also at the proper time.
The order of suspension was withdrawn and the department enquiry was dropped and the officer was reinstated and later promoted as D.I.G. These facts completely militate against the concept of victimisation.
[756 F H, 757 A] (b) The impugned order is a bonafide order and does not suffer from any legal infirmity.
[757 G]
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<s>[INST] Summarize the judgementCivil Appeal No. 140 of 1979.
Appeal by Special Leave from the Judgment and Order dated 8 12 1978 of the Kerala High Court in C.R.P. No. 3450/78.
P. Govindan Nair, Sardar Bahadur Saharya, Vishnu Bahadur Saharya and Mrs. Baby Krishnan for the Appellant T. section Krishnamurthy Iyer, A. section Nambiyar, and P. Parmeswaran for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent landlord filed a petition for eviction of the appellant tenant from the premises in dispute under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, on the ground that the appellant had sub let the premises without the consent of the landlord.
The petition had a chequered career but finally the Rent Controller ordered eviction by his order dated July 31, 1974.
The order of the Rent Controller was confirmed, successively by the Subordinate Judge, the District Judge and, the High Court.
The tenant has now preferred this appeal by special leave of this Court under Art, 136 of the Constitution.
Shri Govindan Nair learned counsel for the appellant submitted that under section 108(j) of the , it was a term of every lease that the lessee might sub lease the whole or any part of his interest in the property and, therefore, unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises, the landlord could not have recourse to section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act.
In order to appreciate the submission of Shri Govindan Nair, we may set out the relevant statutory provisions.
section 108(j) of the , is as follows: "108.
In the absence of a contract or local usage to the contrary, the lessor and the lessee of the immovable property, as against one another, respectively, possess the rights and are 141 subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased : (A) Rights and liabilities of the lessor (a) X X X X X X X X X (b) X X X X X X X X X (c) X X X X X X X X X (B) Rights and liabilities of the lessee (d) X X X X X X X X X (e) X X X X X X X X X (f) X X X X X X X X X (g) X X X X X X X X X (h) X X X X X X X X X (i) X X X X X X X X X (j) the lessee may transfer absolutely or by way of mortgage or sub lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it.
The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; X X X X X X X X X section 11 of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, to the extent that it is relevant is as follows: "11(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provisions of this Act: Provided that . . .
Provided further that . . (2) X X X X X X X X X (3) X X X X X X X X X (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building: (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub lets the entire building or any portion thereof if the lease does not confer on him any right to do so".
The submission of Shri Govindan Nair was that if the lease did not expressly prohibit sub letting, the provision in section 108(j) of the which enabled a lessee to sub lease the whole or any part of his interest in the property had necessarily to 142 be read into every lease as one of its terms, and so read, it followed that the lease conferred on the tenant the right to sub let "the entire building or any portion thereof" so as to disentitle the landlord from seeking eviction of the tenant under section 11(4)(i) of the Kerala Act.
We are unable to agree with this submission.
Read plainly and without gloss, section 11(4)(i), simply and clearly, means that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord.
What is necessary is an application of the mind and the resulting consensus between the landlord and the tenant.
If the clause "if the lease does not confer on him any right to do so" was not there in section 11(4)(i) the position would be unarguable that section 108(j) would offer no protection.
That much was also conceded by Shri Govindan Nair.
In our opinion, the addition of the clause did not improve matters for the tenant.
It only clarified matters to this extent that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently, but it had to be conferred: it could not be claimed unilaterally by the tenant.
To interpret section 11(4)(i) in the manner suggested by Shri Govindan Nair would be to rewrite the provision as follows: "if the tenant. . . . . , without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof, though prohibited by lease from doing so".
That, we are not called upon to do.
A little thought over the reason for section 11 (4)(i) will also throw some light.
Quite obviously, the legislature thought that the tenant whose tenancy was well secured and protected by the rights conferred by the Buildings (Lease and Rent Control) Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others besides himself, unless the landlord by his act agreed to such a course.
Where the landlord had himself agreed that the tenant could sublet, the question would not arise.
Therefore, section 11 (4)(i) provides that subletting shall be a ground for eviction but not if it was by agreement of the landlord.
In V. Dhanapal Chettiar vs Yesodai Ammal(1) a Bench of seven judges of this Court had to consider the question whether notice under section 106 of the determining the lease was necessary before a landlord could move Rent Controller or other appropriate authority for the eviction of the tenant under the various State Rent Acts.
The Court held that it was not necessary and Untwalia, J., speaking for the Court, said: 143 "Section 108 deals with the rights and liabilities of lessors and lessees.
Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly.
The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution.
The subject being in the concurrent list, many State Rent Acts have by necessary implication and many of them by starting certain provisions with a non obstante clause have done away with the law engrafted in section 108 of the except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication".
Later, he said: "But when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given.
Or, it may be that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice.
But that is not to say that such a notice is compulsory or obligatory or that it must fulfill all the technical requirements of section 106 of the ".
It is clear from what has been said that not all the rights conferred on landlord and tenant by section 108 and other provisions of the have been left in tact by the various State Rent Acts and that if a State Rent Act makes provision for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the .
Section 108(j) of the stands displaced by section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act and is no defence to an action for eviction based on section 11(4)(i).
We are satisfied that the appeal is without merit and is accordingly dismissed with costs.
P.B.R. Appeal dismissed.
[/INST]The appellants were the tenants of the respondents landlord.
The suit filed by the respondents for eviction of the appellants under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the ground of default in repayment of rent was decreed in spite of the fact that the appellants deposited all the rents before the date of filing of the suit, the future rent in advance before the first date of hearing and also the interest and cost of the suit amounting to Rs. 23 on the first date of hearing.
These deposits were made under Section 31 of the Punjab Relief of Indebtedness Act, 1934 and under Section 13 of the Rent Act before the Rent Controller cum Senior Sub Judge respectively.
The suit was decreed on the ground that the said deposit was not a valid tender and the appellants could not claim any protection under the proviso to Section 13(2) of the Rent Act but the Appellate Court set aside the judgment of the Trial Court on the ground of the validity of the notice.
The High Court in revision following the decision of this Court in Yasodai Ammal 's case set aside the appellate order and decreed the suit.
Both the Appellate Court and the High Court never went into the question of deposit of rent so as to protect the tenant from eviction.
Hence the appeal by obtaining the special leave from this Court Allowing the appeal, the Court ^ HELD (1) The main object of the Relief of Indebtedness Act, 1934 is to give relief to debtors and protect them from paying excessive rates of interest.
From the plain and unambiguous language of Section 31, it cannot be spelt out that the Act applies only to a particular type of debtors and creditors.
Section 31 has been couched in the widest possible terms and the legislature has advisedly not used the word debtor in Section 31 so as to confine the provisions of the section only to the 'debtor ' defined in the said Act and to no other but the legislature intended to embrace within its fold all persons owing money including tenants who are in arrears.
Thus, under Section 31 of the Indebtedness Act any person who owes money is entitled to deposit in court the money owed either in full or in part in tho name of his creditor.
It is clear, therefore, that Section 31 would apply even to a tenant who owes money to his landlord by way of rent due and he can also enjoy the facility provided by Section 31 of the Indebtedness Act.
[481 C, 482 E G] 477 (2) The combined effect of the provisions of Section 31 of the Indebtedness Act and the Notification No. 1562 Cr. 47/9224, dated 14th April, 1947 published in the Punjab Gazette Extraordinary and the Notification made under the Punjab Courts Act, 1918 by which a Senior Sub Judge was to function as a Controller under the Rent Act is that Section 31 is constituted a statutory agency or machinery for receiving all debts and paying the same to the creditors.
This is the dominant purpose and the avowed object of Section 31 of the Indebtedness Act.
It thus follows as a logical consequence that any deposit made by a tenant under Section 31 would have to be treated as a deposit under the Rent Act to the credit of the landlord and which will be available to him for payment whenever he likes to withdraw.
[482 H, 483 H 484 B] Kuldip Singh vs The State of Punjab & Anr. , followed.
Mam Chand vs Chhotu Ram & Ors I.L.R. 1964 Punjab 626 and Khushi Ram vs Shanti Rani & Ors.
1964 Punjab Law Reports 755, approved.
Vidya Prachar Trust vs Pandit Basarat Ram , overruled.
(3) To give a narrow meaning to the words "person who owes money" used in Section 31 of the indebtedness Act would be to unduly restrict the scope of Section 31 which is contrary to the intention of the legislature.
Furthermore, under the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949, the tenant was required to deposit interest also in order to get protection of the proviso.
Hence, the tenant was a debtor with a sort of a statutory agreement to pay interest and would therefore squarely fall within the definition of Section 31 of the Indebtedness Act.
[485 G 486 A] (4) There is absolutely no bar either under Section 6 or under Section 19 of the East Punjab Urban Rent Restriction Act, 1949 to receive future rent.
Section 6 of the Act merely provides that where a fair rent is fixed by the Controller it would not be open to the landlord to receive any amount in advance in excess of the fair rent.
Section 6, therefore, clearly deals with a situation where a fair rent under Section 6 is fixed by the Controller on the application of the parties.
Neither in the present case nor in Vidya Prachar Trust 's case was there any allegation that a fair rent had been fixed by the Controller.
So long as fair rent is not fixed by the Controller the parties are free to agree to payment of any rent and neither Section 6 nor Section 19 would be attracted to such a case.
Moreover, even if the tenant were to deposit future rent it is always open to the landlord not to withdraw the future rent but confine himself to taking out only the rent that is in arrears which will not at all violate any provision of the Rent Act.
Therefore, a deposit by a tenant under Section 31 of the Indebtedness Act was a valid tender.
[486D, G H; 487A C] (5) Like all other Rent Control Acts in the other States in the country, the Rent Act is a piece of social legislation which seeks to strike a just balance between the rights of the landlords and the requirements of the tenants.
The Act prevents the landlord from taking the extreme step of evicting the tenant merely on the ground of default in payment of rent if the landlord is guaranteed entire payment of the entire arrears of rent, cost and interest.
Thus the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949 affords a real and sanctified protection to the tenant which should not be nullified by giving a hypertechnical or literal 478 construction to the language of the proviso which instead of advancing the object of the Act may result in its frustration.
[487F G] (6) The statutory provisions of the proviso which is meant to give special protection to the tenant, if property and meaningfully construed, lead to the inescapable conclusion that the rent together with cost and interest, etc., should be paid on or before the date of the first hearing and once this is done, there would be sufficient compliance with the conditions mentioned in the proviso.
In the instant case all the necessary conditions of the proviso of Section 13(2) of the Rent Act were fully complied with.
[487H 488 A, B] Sheo Narain v Sher Singh ; , applied.
(7) Once it is held that the deposit under section 31 of the Indebtedness Act is a valid tender having been deposited on or before the first date of hearing, the exact point of time when the deposit is made is wholly irrelevant and will not amount to non compliance of the conditions of the proviso to Section 13(2) of the Rent Act.
In the instant case, the deposit of the arrears of rent had been made prior to the filing of ejectment petition and the interest and cost were raid on the first date of hearing.
[489B C]
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<s>[INST] Summarize the judgementminal Appeal No. 757 of 1985.
From the Judgment and Order dated 6.11.1984 of the Gauhati High Court in Criminal Appeal No. 11 of 1979.
Sunil Kumar Jain, P.D. Tyagi and Vijay Hansaria for the Appellant.
S.K. Nandy for the Respondent.
ANAND, J. Anil Phukan and his brothers Mahendra Phukan and Jojneswar Phukan were tried for an offence under Section 302/34 IPC for the murder of one Trinavan Chandra Baruah on 21.3.1976 at about 8 p.m.
The learned Sessions Judge convicted all the three brothers for the said offence and sentenced each one of them to suffer imprisonment for life 392 An appeal was preferred by all the three brothers against their conviction and sentence in the Gauhati High Court.
A Division Bench of that court vide judgment dated 6.11.1984 upheld the conviction and sentence of all the three.
A Special Leave Petition (Crl.) No. 561/85, was preferred by Mahendra Nath Phukan, and Anil Phukan, the third brother Jojneswar, however, did not file any special leave petition.
On 2.9.1985, the special leave petition as regards Mahendra Nath Phukan was dismissed while notice was issued in the petition as regards Anil Phukan.
Subsequently, on 29.10.1985, special leave was granted to Anil Phukan and on 29.4.1986, he was also directed to be released on bail to the satisfaction of the Chief Judl.
Magistrate, Golaghat, ' Assam.
We are, therefore, at this stage concerned only with the criminal appeal by special leave, of Anil Phukan.
In brief, the prosecution case is that the appellant, Anil Phukan had borrowed a sum of Rs. 450 from Trinayan Chandra Baruah, deceased and had executed two hand notes exhibit 7 and exhibit 8, promising to repay the amount on 21.3.1976.
However, he did not repay the amount, On 21.3.1976, the deceased accompanied by his nephew, Ajoy Baruah PW3, proceeded to the village of the appellant and as he was getting late, Ajoy Baruah PW3 carried with him a torch light.
The distance of the house of the deceased from that of the appellant is about one furlong.
Anil appellant was present in the fields in front of his house and on being asked as to why he had not come to return the money, he asked them to wait there and proceeded towards his house.
Later on, when Anil did not return for some time, the deceased alongwith Ajoy PW3 proceeded towards the house of the appellant when they found all the three brothers coming towards them variously armed.
Mahendra had a crowbar while jojneswar had a crooked dao and Anil a kupi dao.
Ajoy PW3 apprehended some danger from the appellant and his brothers but his uncle told him that since they had done no wrong, they need not be afraid of any assault.
On coming near the deceased and Ajoy PW3, Mahendra, who came first, gave a blow to Trinayan on his head with the crowbar, the other two brothers also allegedly assaulted the deceased thereafter.
Ajoy PW3 pulled the deceased towards his house and implored the accused not to assault him.
At the asking of his uncle, Ajoy PW3 ran away to his house and gave the information to the wife of the deceased PW5 Debayani Baruah, about the occurrence.
He also narrated the occurrence to PW4, Bijoy Baruah.
the wife of the deceased went to PW6, Punaram Gogoi, and after telling him as to what had been told to her by Ajoy PW3, she requested him to accompany her to the place of 393 occurrence.
On reaching the place of occurrence, they found Trinayan lying on the spot with injuries on his person but he was still alive.
Pws Bijoy and Ajoy brought a bullock cart from Sabharam Bora PW7 and after lifting the body of Trinayan with some difficulty brought it to his house and kept it in the verandah.
However, before any medical aid could be provided, the deceased succumbed to the injuries at night.
The first information report was lodged at Golaghat Police Station the next day in the afternoon at 12.30 p.m. by Surendra Nath Gogoi PW2.
During the investigation, some weapons including an axe were seized from the house of Mahendra accused.
On the same day, Mahendra was arrested at about 6.45 p.m.
The other two brothers Anil and Jojneswar surrendered subsequently in the court.
The I.O. prepared the sketch plan of the place of occurrence and sent the body for postmortem examination.
The autopsy revealed that the deceased had two incised injuries on the head besides one swelling and an injury on the inner part of his thigh.
The prosecution in all examined 12 witnesses to connect 'the accused with the crime.
This case primarly hinges on the testimony of a single eye witness Ajoy PW3.
Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability.
So long as the single eye witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then, the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction.
It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
It is in the light of these settled principles that we shall examine the testimony of PW3 Ajoy.
Ajoy PW3, on his own showing, is the nephew of the deceased.
He had accompanied the deceased to the place of occurrence when the later went to recover the loan from Anil appellant.
This witness, therefore, is a relative of the deceased and an interested witness.
Of course, mere relationship with the deceased is no ground to discard his testimony if it is otherwise found to be reliable and trustworthy.
In the normal course of events, a close relation would be the last person to spare the real assailant 394 of his uncle and implicate a false person.
However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime.
Since, there are some doubtful aspects in the conduct of Ajoy PW3, it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial.
The unnatural conduct of Ajoy PW3 which has come to our notice from the record is that though he was present alongwith the deceased at the time of occurrence, on 21.3.1976, at about 8 p.m., he made no attempt to save his uncle from the assault.
He did not even continue to stay there, though of course according to him, he ran for his life on being advised so by his uncle.
He was not assaulted though both he and his uncle were unarmed.
Even if Mahendra was engaged in assaulting the deceased, Anil, who was also allegedly armed neither made an attempt to assault Ajoy PW3 nor even chased him.
PW3 Ajoy did not himself lodge the FIR.
Of course, he gave information about the occurrence to PW4, PW5, PW7 and others immediately after the occurrence describing the manner of assault and the names of the assailants but why he did not lodge the FIR has not been explained by him.
In his testimony in the court he deposed that after Mahendra accused gave blow with the crowbar on the head of the deceased "other accused also assaulted him".
He did not describe as to on which part of the body of the deceased, had Anil and Jojneswar caused the injuries and made a general vague statement without assigning any particular injury to either of them.
When we look to the medical evidence, we find that the deceased had suffered two injuries on his head and no other injury on any other part of the body.
In all, four injuries were recorded in the post mortem report.
The other two injuries, according to the doctor, could have been the result of a fall and indeed looking to the nature of those injuries, which are in the nature of a swelling on the back of the interscapular region and a lacerated wound on the interior aspect of the right thigh, it is possible to agree with the medical witness PWl Dr. Ganesh Ch.
Buragohain, that those injuries could have been caused by a fall and were not the result of any direct impact with a weapon of assault.
Both the head injuries are almost of the same dimensions.
The possibility, therefore, that both the injuries had been caused to the deceased by Mahendra with the crowbar, who according to PW3 had hit the deceased on the head cannot be ruled 395 out.
In this connection, it would also be relevant to not that according to the testimony of the Investigating Officer, PW11 Abhiram Taye, all the weapons like the crowbar Ex.M5, a dao, an axe and a hand dag were recovered only from the house of Mahendra.
We have it from the testimony of PW3 and the first informant PW2 that all the three brothers lived separately.
No recovery was affected from the house of the appellant Anil at all.
All that was seized from his house were two bonds Ex.7 and Ex.8, undertaking to repay the loan to the deceased.
Unlike Mahendra accused he was not even arrested on the date of the occurrence and the mere ipse dixit of the investigating officer, that Anil had absconded is not acceptable, particularly when the investigating officer is totally silent as to where all he had made the search for the appellant and when.
He was not questioned under Section 313 Cr.
PC about the allegation of absconding either.
The deceased was still alive when his wife and the other co villagers, who have appeared as witness reached the place of occurrence.
The deceased did not name the appellant as his assailant before anyone.
The crowbar exhibit 5 was recovered from the house of Mahendra and according to the testimony of PW3, it was the same weapon with which Mahendra had hit deceased on his head which position also receives corroboration from medical evidence.
The deposition of PW4, who is the sister of PW3 Ajoy to the effect that when Ajoy PW3 came running to the house, he told her that her uncle had been killed by Anil and his brothers does not stand scrutiny because admittedly according to PW3 himself, when he ran from the place of occurrence, the deceased was still alive and as a matter of fact he was alive even when the wife of the deceased and other neighbours reached there and brought him to the house.
It was only at the house while the deceased was kept in the verandah that he succumbed to the injuries.
There could have been, therefore, no occasion for Ajoy PW3 to have told his sister PW4, that her uncle had been 'killed ' by Anil and his brothers.
This also shows that Ajoy PW3 has the tendency to exaggerate matters.
The medical evidence is consistent with the theory that the deceased had been assualted only by one person and not by all the three brothers as alleged by the prosecution.
The possibility, therefore, that Mahendra accused alone had caused injuries on the deceased cannot be ruled out.
May be on account of the recovery of the two bonds Ex.7 and Ex.8 from the house of Anil, he was also implicated.
We cannot be sure.
The origin of the fight is totally in obscure and the prosecution has not explained the genesis of the origin of the fight either.
It is not even the case of the prosecution that Anil had refused to repay the loan or that any hot words 396 or abuses had exchanged between Anil and the deceased when the later had demanded from him the repayment of the loan.
In view of the infirmities pointed out above, it would not be safe to rely upon the testimony of Ajoy PW3, the sole eye witness, without looking for independent corroboration and as already noticed, the corroboration furnished by the prosecution unlike in the case of Mahendra, is negative in character in so far as the involvement of Anil appellant is concerned.
In our considered opinion, therefore, it would not be safe to hold that the prosecution has established its case against Anil appellant beyond a reasonable doubt.
The appellant in our opinion, is entitled to the benefit of doubt and granting him that benefit, we set aside his conviction and sentence for the offence under Section 302/34 IPC and consequently the judgment of the High Court in so far as Anil appellant is concerned, is set aside and he is hereby acquitted.
Anil appellant is on bail.
His bail bonds shall stand discharged.
N.V.K. Appeal allowed.
[/INST]Respondent Bank lodged a complaint before the Bar Council of Delhi against the appellant Advocate, alleging that the appellant and two other Advocates of the M/s. Singh and Company, (a Firm of Advocates and solicitors) were guilty of serious professional misconduct, as they failed to discharge their.professional duties and responsibilities entrusted to them.
The case of the Bank was that in 1975, the Bank engaged the Firm to rile a recovery suit for the recovery of Rs. 6,12,164.10 from M/s. Delhi Flooring (P) Ltd. and handed over the case rile containing original and valuable documents.
The Firm submitted a bill for riling the recovery suit which included the professional fees and other miscellaneous charges.
On 15.11.1975 the Bank paid a sum of Rs. 11,475 which included 1/3rd of the professional fee and the miscellaneous charges.
It did not inform the Bank whether the suit was filed or not.
On 5.12.1975 the Bank wrote a letter to the Firm to send a copy of the plaint before 8.12.1975 or the Bank would be compelled to withdraw the case from the Firm.
On 15.12.1975, one of the partner of the firm informed the Bank the suit was filed on 15.12.1975 in the High Court.
Thereafter the Bank was kept in the dark about the fate of the case.
Hence the Bank engaged the services of one Mr. Arora, Advocate, in order to find out as to what happened to the suit.
On 23.1977, the Bank was informed by Mr. Arora, Advocate that 489 suit was filed on 15.12.1975 in the High Court and on 31.1.1976, it was returned by the Original Branch to the Registry with objections.
Mr. Arora, Advocate further informed the Bank on 31.3.1977 that the entire suit paper book was returned to Mr. Singh, Advocate of the Firm on 27.7.1976 for removing the object ions and thereafter the suit was not refiled.
The respondent Bank, therefore, claimed before the Bar Council of Delhi that the appellant and his associates misappropriated the money paid to them for court fee, miscellaneous expenses and one third of the professional fee.
The Disciplinary Committee of the Bar Council of Delhi transferred the case of the Bar Council of India, as the case was pending for more than one year.
The Bar Council of India issued notices returnable on 2.11.1980.
The appellant and his associates were not present on that date.
Therefore fresh notices were issued for 20.12.1980.
The appellant did not present on 20.12.1980and ex parte proceedings were ordered.
The case was posted for 23.1.1981 for the evidence of the complainant.
On 23.1.1981 the appellant moved an application for setting aside the ex parte order dated 20.12.1980, which was allowed and the case was adjourned to 27.2.1981.
The case was adjourned from time to time and finally fixed for evidence on 22.8.1981.
On 22.8.1981, the appellant 's application for adjournment was rejected.
The evidence was concluded, ar guments were heard and the order was reserved.
(The complainant had given up its case against one Ms. V.Singh, Advocate an associate of the appellant, and the Bar Council of India did not proceed against her.
One Mr. B.Singh, Advocate the other associate of the appellant, was also proceeded against.
Notice to him was returned with the postal endorsement "refused" and ex parte proceeding were ordered.) The Disciplinary Committee of the Bar Council of India held that the case against the appellant and his associate was proved beyond reasonable doubt.
Their names were removed from the rolls of Advocates of the Bar Council of Delhi and the Sanads granted to them were ordered to be withdrawn.
490 The appellant riled the appeal before this Court, while his associate, riled a review petition before the Bar Council of India, which was still pending.
The Bar Council of India granted him stay of the order dated 24.10.1981 in the review proceeding.
The appellant contended that the suit was filed by the appellant on 15.12.11975 but the record of the suit file was misplaced/lost by the Registry of the High Court; that by his letter dated 20.8.1977, he informed the Bank about the suit rile being not traceable; and that the record of the suit was to be structured and refiled.
Dismissing the appeal, this Court, HELD : 1.01.
The letter dated August 20,1977 was not produced, before the Bar Council of India.
It has been placed before this Court for the first time.
Apart from the ipse dixit of the appellant and Mr.
B.Singh in the said letter, there is no evidence on the record to show that the suit rile was misplaced or lost by the High Court Registry.
On the other hand, there is cogent and reliable evidence on the record to shows that the Delhi High Court Registry returned back the papers to, Mr. B. Singh for removing the objections raised by it.
[494D E] 1.02.
Both the reports of Mr.R.P.Arora, Advocate have been proved on the record of the Bar Council of India as evidence.
The Bar Council of India on appreciation of the evidence before it came to the conclusion that the charge against the appellant and Mr.
B.Singh was proved beyond doubt.
There is no ground to interfere with the order of the Bar Council of India.
[495H, 496D]
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<s>[INST] Summarize the judgementivil Appeals Nos.
1266 & 1267 of 1969.
From the Judgment and order dated the 29th July, 1968 of the Patna High Court in Civil Writ Jurisdiction Case No. 61 of 1967 H. K. Puri and K. K. Mohan, for the appellant 264 D. Goburdhan, for respondent Nos. 1 and 2 (In both the appear) Respondent No. 21 (In C.A. No. 1266/69) and for respondent No. 60 (in C.A. No. 1267/69).
A. K. Nag, for respondent Nos. 3 19 (In C.A. No. 1266/69) and for respondent Nos, 4, S, 7 9, 11 32, 35 42, 44 52, 54 58 (In C.A. No. 1267/69).
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
By two notifications dated 22 6 65 and 28 8 65 the Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, applications in respect of 73 workers of the appellant for decision under section 33C(2) of the Industrial disputes Act for retrenchment compensation.
The employer contended that it was a case of closure for reasons beyond its control and that therefore the workmen were entitled to compensation under the proviso to subsection (1) of section 25FFF of the Act and not to retrenchment compensation workers contended, however, that they were entitled to retrenchment compensation under s.25F.
The Labour Court held that it was a case of retrenchment.
Two writ petitions filed by the employer before the High Court of Patna failed and these appeals have been filed in pursuance of a certificate of fitness granted by the High Court.
The argument on behalf of the appellant is that where there is a dispute before the Labour Court considering an application under section 33C(2) as to whether the workmen had been retrenched or the factory had been closed for reasons beyond the control of the employer, it was not a matter which the Labour Court was competent to decide and that it was a matter which only an Industrial Tribunal considering a reference under section 10 is competent to decide.
In particular Item 10 of the Third Schedule to the Act is relied upon to show that the matter relating to retrenchment and closure is one which only an Industrial Tribunal is competent to decide.
Reliance is placed upon a decision of this Court in U.P. Elect.
Co. vs R. K. Shukla(1) where it was held that the power of the Labour Court is to complete the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen, that where retrenchment is conceded and the only matter in dispute is that by virtue of section 25FFF no liability to pay compensation has arisen the Labour Court will be competent to decide the question, that in such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability, and that where the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, the Labour Curt will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.
In the U.P. Electric Company case (supra) the facts were somewhat different.
The Court in that case noticed at page 513 of the report that "The company had expressly raised a contention that they had not retrenched the workmen and that the workmen had 265 voluntarily abandoned the Company 's service by seeking employment with the Board even before the company closed its undertaking".
This Court emphasised at page 5l7 of the report that If the liability arises from an award, settlement or under the provisions of Ch.
V A or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33C(2) before the Labour Court".
We, therefore, do not see how the decision in the U.P. Electric Company 's case (supra) can come to the aid of the appellant in this case.
The said case is clearly distinguishable on the peculiar facts as noticed above.
In Central Bank of India Ltd vs P. section Rajagopalan(1) this Court considered the scope of section 33C(2) elaborately and it would be necessary to quote at some length from that decision.
In that case it was urged by the employer that section 33C(2) can be invoked by a workman who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and could not be a matter of dispute between the parties and that the only point which the labour Court can determine is one in relation to computation of the benefit ill terms of money.
This Court observed: "We are not impressed by this argument.
In our opinion on a fair and reasonable construction of sub section
(2) it is clear that if a workman 's right to receive the benefit is disputed, that may have to be determined by the Labour Court.
Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit.
If the said right is not disputed, nothing more needs to be done and the labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed the Labour Court must deal with that question and decide whether workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making necessary computation can arise.
It seems to us that the opening clause of sub section
(2) docs not admit of the construction for which the appellant contends unless we add some words in that clause.
The clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be.
entitled to receive such benefit.
" The appellant 's constructional would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible.
Besides, if seems to us that is the appellant 's construction is accepted it would necessarily mean that 266 it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman 's application.
The claim under section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub s.(2).
As Maxwell in Interpretation of Statutes, p. 350, has observed 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution; we must accordingly hold that section 33C(2) takes within its purview case of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers.
Incidentally, it may be relevant to add that it would be somewhat odd that under sub s (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub section
On the other hand, sub s.(3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour of Court under sub section
Further on this Court observed: "It is thus clear that claims made under s.33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA.
These words of limitations are not to be found in s.33C(2) and to that extent, the scope of section 33C(2) is undoubtedly wider than that of section 33C(1).
It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under section 33C(2).
There is no doubt that the three categories of claims mentioned in section 33C (1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under section 33C(2) and that may illustrate its wider scope." This Court then went on to discuss some of the claims which would not fall under s.33C(2), which is not very relevant for the purposes of this case.
The present case stand on an even stronger footing.
Even the employer does not dispute that the workmen are entitled to compensation.
It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim.
The claim also falls under Chapter VA. 267 In the decision in South Arcot, Elect.
Co. vs N. K. Khan(1) where a right had been claimed by the various workmen in their applications under section 33C(2), it was held that it was a right which accured to them under s.25FF of the Act and was an existing right at the time when these applications were made, that the Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision, and that the mere denial of that by the company could not take away its jurisdiction.
We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub section
(1) of section 25FFF was attracted on closure of the establishment.
The question even according to the employer falls under section 25FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.
We do not consider that the reference to item No. 10 of the Third Schedule to the Act can decide the matter one way or the other.
The item reads as follows: "10.
Retrenchment of workmen and closure of establishment It does not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal.
Logically if the contentions is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction.
This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal.
In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was to closure at all.
In the present case the workmen do not ask for reinstatement.
They accept the termination of their services and ask for compensation.
The only dispute is about the compensation whether it is to be paid under s.25F or 25FFF.
Item 10 of Third Schedule will not cover such a case.
We therefore uphold the decision of the High Court and dismiss these appeals with costs.
V.M.K. Appeals dismissed.
[/INST]The Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, application in respect of 73 workers of the appellant for decision under sec.
33C(2) of the for retrenchment compensation.
The contention of the appellant was that it was a case of closer for reasons beyond its control and that, therefore, the workmen were entitled to compensation under the proviso to sub section (1) of sec.
25FFF of the Act and not to retrenchment compensation.
The workers contended that they were entitled to retrenchment compensation under sec.
25F. The Labour Court held that it was a case of retrenchment.
The writ petitions filed by the employer in the High Court has failed and these appeals have been preferred to this Court on the basis of the certificate of fitness granted by the High Court.
Dismissing the appeals, ^ HELD : (i) It was competent to the Labour Court to decade whether the case before it was a case of retrenchment compensation or the proviso to sub sec.
(1) of section 25FFF was attracted on closure of the establishment.
Even the employer does not dispute that the workmen are entitled to compensation.
It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim.
The claim also falls under Chapter VA of the Act.
[266H; 267B C] Central Bank of India Ltd. vs P. section Rajagopalan ; relied on.
U.P. Electric Company vs R. K. Shukla [1970] 1 S.C.R. 507 and South Arcot Elect.
Co. vs N. K. Khan [1969] 2 S.C.R. 902, referred to.
(ii) Item No. 10 of the Third Schedule to the Act does not say that all questions arising out of retrenchment of workmen and closure of establishment have to be decided by Industrial Tribunal.
This entry refers to cases where the right to retrench workers or to lose an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal.
In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenchment workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on basis that the so called closure was no closure at all.
In the present case the workmen do not ask for reinstatement.
They accept the termination of the services and ask for compensation.
The only dispute is about the compensation whether it is to be paid under section 25F or 25FFF.
Item 10 of Third schedule will not cover such a case.
[267D G]
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<s>[INST] Summarize the judgementiminal Appeals Nos. 24 and 25 of 1957.
Appeals by special leave from the judgment and order dated July 25, 1956, of the Madras High Court in Criminal Appeals Nos. 247 & 248 of 1956 and Referred Trial No. 41 of 1956 arising out of the judgment and order dated March 28, 1956 of the Court of Sessions, East Tanjore Division at Nagapatam, in care S.C. No. 5 of 1956.
982 H. J. Umrigar and section Subramanian, for the Appellants.
P. section Kailasham and T. M. Sen, for the respondent.
April 12.
The Judgment of the Court was delivered by SINHA J.
These two appeals by special leave, which arise out of the same occurrence, are directed against the Judgment and Order dated July 25, 1956, of the Madras High Court, confirming the sentence of death passed by the Court of Sessions, East Tanjore Division, at Nagapattinam, under section 302 of the Indian Penal Code, against appellant in Criminal Appeal No. 24 of 1957, for the murder of Kannuswami, and modifying the order of conviction and sentence under section 302, read with section 109 of the Indian Penal Code, to one under section 326, Indian Penal Code, and reducing the sentence of imprisonment for life to one for 5 years, in respect of the appellant in Criminal Appeal No. 25 of 1957.
In the course of this Judgment, we shall call the appellant in Criminal Appeal No. 24 of 1957, as the " first appellant ", and the appellant in Criminal Appeal No. 25 of 1957, as the " second appellant ".
The occurrence which was the subject matter of the charges against the two appellants took place at about 11 30 p.m. on November 10, 1955, at Muthupet, in front of the tea stall of Kannuswami, husband of Shrimati Dhanabagyam prosecution witness No. 1who will be referred to, in the course of this judgment, as the " first witness ", and who is the principal witness for the prosecution, because, as will presently appear, the prosecution case and the convictions and sentences of the appellants depend entirely upon her testimony.
The occurrence took place in the immediate vicinity of a cinema house in which the second show was in progress at the time of the alleged cold blooded murder.
As there were no customers at that time at the tea shop run by Kannuswami, his wife called him for his dinner to be served to him behind the tea stall, as the husband and wife used to live there.
Kannuswami was about to attend to the call for dinner when 983 an old man came into the shop and asked for a cup of tea.
When Kannuswami got busy preparing the tea, the two appellants rushed into the premises.
The old man the intending customer naturally ran away, and the two accused dragged Kannuswami out of the shop on to the road side; and the first appellant gave him several blows on the front part of his body in the region of the chest with an aruval a cutting instrument about 2 feet long including the handle.
Kannuswami fell down on his back and cried out for help.
His wife, the only other inmate of the house, tried to come to his rescue by raising and putting his head into her lap after the two accused had left him.
But soon after, perhaps, realising that Kannuswami was not dead as a result of the first blows, as deposed by the wife, both the accused returned.
Kannuswami 's wife who figures in court as the sole witness to the killing, placed his head on the ground and went and stood on the steps of the tea stall.
The first appellant this time, made the body of Kannuswami lie with face downwards and gave a number of cuts in the region of the head, the neck and back.
These injuries were such as to cause instantaneous death.
At the time of the second assault, according to the evidence of the first witness, Shunmuga Thevar Prosecution Witness No. 3, one of the proprietors of the cinema housecame and remonstrated with the accused but to no purpose.
After inflicting the injuries, both the accused ran away.
According to the testimony of the first witness, it was the first appellant, the second accused (A 2 in therecord), who inflicted cutting injuries with the aruval.
The second appellant, the first accused (A 1 inthe record), was standing nearby at the time the cutting injuries were inflicted.
There were two electric lights burning in the tea shop, a Panchayat Board light burning on the road, as also a light burning on the pathway leading to the cinema house.
The wife of the deceased, finding her husband thus murdered, went and told Ganapathi Prosecution Witness No. 4 who had a tea stall on the other side of the road, and informed him as to what had taken place.
He asked her to lodge information of the 984 occurrence at the Police Station.
She then went to the Mathupet Police Station, but found it shut.
She went to the house of the Sub Inspector of Police, who took her to the Police Station, and recorded her statement as the first information report (Exhibit P. 1).
After recording the first information report, the SubInspector came along with the first informant to the scene of occurrence.
He held an inquest early in the morning.
At the trial, the Prosecution examined, besides the widow of the murdered man (P.W. 1), P.W. 2 an assistant in the tea shop of Ganapathi Thevar, P.W.3 one of the proprietors of the cinema house and P.W. 4Ganapathi who kept another tea stall near the cinemahouse, in support of the prosecution case.
P.W. 2Singaram testified to the occurrence and stated that he had seen Vadivelu 'Cut ' Kannuswami and Chinniah standing by the side of Vadivelu, a few feet away; but he added that the accused persons were not those con cerned with the crime though they bore the same names.
The Public Prosecutor was permitted to cross examine this witness who admitted that he knew that the Police were searching for the accused in the dock and that he did not tell the Police that these were not the persons who had committed the murder.
He went to the length of admitting that he did not tell anybody that the accused in the dock were not the persons who had committed the murder and that it was in the committal court that he stated, for the first time, that the accused persons were not concerned with the crime.
He also admitted that at the time of the occurrence, lights were burning at the place of occurrence, in the tea shop and in the theatre.
P.W. 3, one of the proprietors of the cinema house, when examined in court, admitted that he had been examined by the police two days after the occurrence, but stated that he did not tell the Police that he had seen the accused assaulting Kannuswami.
It appears that, though the record of the examination in chief of this witness would itself indicate that the Public Prosecutor had, put questions to him in the nature of cross examination, yet it is not recorded, unlike the record of the depositions 985 of P.W. 2 and P.W. 4, that this witness had been declared hostile and the Public Prosecutor had been permitted to cross examine him.
That appears to be a slip of the learned Sessions Judge, as he had been so treated even in the committal court.
The Investigating Sub Inspector, P.W. 14, stated, with reference to his diary, that P.W. 3 had stated before him that he had seen accused No. 2 cutting the deceased on the head and neck with an aruval, and accused No. I standing by the side of the second accused.
Witness No. 4 for the Prosecution Ganapathi who ran a tea stall near the cinema house, about 50 to 60 feet away from the tea stall of the deceased Kannuswami, stated in court that the first witness came to him weeping and saying that Chinniah and Vadivelu Thevar had cut her husband, but added that the two accused in court were not those persons.
Thus, whatever may have been the previous statements of the prosecution witnesses 2 to 4, aforesaid, their evidence in court does not directly support the prosecution case.
The orders of conviction and sentence, as passed by the courts below, as indicated above, rest solely on the testimony of the first witness.
It has been argued by the, learned counsel for the appellants that the conviction and sentences of the appellants should not, be upheld because they rest on the sole testimony of the first witness, particularly, because, it is further argued, her testimony is not free from all blemish.
In this connection, her statement in court that it was the second accused (first appellant) who gave the number of cut injuries with the aruval to the deceased Kannuswami, was challenged in crossexamination.
She has been cross examined with reference to her statement (Exhibit D 2) recorded by the committing Magistrate, and she has categorically stated : " Accused 1 had no weapon of any kind with him.
He did not give any cut.
I have not stated in the committal court that accused 1 continued to cut even after Shanmugham Thevar asked him not to cut.
" Exhibit D 2 is in these terms: 127 986 " Even while he was asking not to cut, accused 1 was cutting.
Soon after, accused 1 stopped cutting and went away.
" With reference to the statement of the first witness, as recorded in Exhibit D 2, the learned Sessions Judge has observed that it was a mistake of recording by the committing Magistrate.
We have looked into the whole evidence of the first witness, as recorded by the committing Magistrate not printed in the record, but supplied to us by the learned counsel for the appellants and in our opinion, there is no doubt that the learned Sessions Judge was correct in his conclusion that the recording by the Magistrate is defective in the sense that accused 1 has been recorded in place of accused 2, inasmuch as, throughout her deposition, the first witness had consistently stated that it was accused 2 who actually used the deadly weapon against her husband and that accused I was only aiding and abetting him and lending him strength by his presence.
That this conclusion is well founded, is also substantiated by the state of the record of the appeal in the High Court.
Each of the two appellants in the High Court filed a separate Memorandum of Appeal through his own counsel.
In neither of the Memoranda of Appeal, any ground has been taken that the first witness had materially contradicted herself with reference to her previous statement in the committal court.
Her testimony was assailed only as 'interested, artificial and unnatural '.
It is not even suggested that the learned Sessions Judge 's conclusion in respect of the recording by the committing Magistrate (Exhibit D 2) was not based on any material.
When the matter was argued before a Bench of the High Court, there is no indication in the judgment that any point was sought to be made of this alleged serious discrepancy in the statement of the first witness at different stages.
In the High Court, it was sought to be argued only that she was an interested witness though her testimony throughout had been consistent, as will appear from the following observations of the High Court 987 " To prove that it was the two accused that caused these injuries to the deceased, the prosecution put forth as many as four witnesses.
Of these four witnesses, P.Ws. 2, 3 and 4 turned hostile both in the committal court as also in the Sessions Court.
The only witness that remained constant throughout was P.W. I who is no other than the wife of the deceased.
" The same was the position with reference to the petition for leave to appeal to this Court filed in the High Court.
It was a joint petition on behalf of both the appellants, and as many as 13 grounds had been taken.
There is not even a suggestion that the testimony of the first witness was vitiated by any such discrepancy as has been sought to be made out in this Court.
It was after the High Court refused to grant the necessary certificate that for the first time, in the petition for special leave to appeal, filed in this Court, the ground is taken that the High Court failed to appreciate that the testimony of the first witness was untrustworthy for the reason that there was the alleged discrepancy between her statement in the committal court and in the Court of Sessions.
Thus, it is abundantly clear that the finding of the learned Sessions Judge about the mistake in recording the evidence of the first witness, by the committal court, has not been challenged at any stage in the court below.
The second ground of attack against the veracity of the first witness is that she had stated that Shanmugham Thevar Prosecution Witness No. 3 had also seen the first appellant giving the deadly blows to her husband, and that the assailant continued giving his blows in spite of protests of P.W. 3.
This argument proceeds upon the assumption that Prosecution Witness No. 3 is telling the truth and that, therefore, his evidence effectively contradicts that of the first witness.
P.W. 3 was, as indicated above, cross examined by the Public Prosecutor with reference to his previous statement before the Investigating Police Officer (P.W. 14).
P.W. 14 has stated that before him P.W. 3 had stated just the contrary Of what he stated in court.
The statements of P.W. 3 at 988 the earlier stage, before the Police, and later when examined in court, may or may, not have been false, but certainly both cannot be true.
Hence, it cannot be said that the evidence of P.W. 3 in court was the true version.
That being so, his evidence in court is not strong enough to wipe out the evidence of the first witness on the ground that it is contrary to what P.W. 3 had stated.
It is, thus, clear that none of the grounds, urged in support of the contention that the evidence of the first witness is unreliable, has been made out.
On the other hand, the first witness, being the most important witness from the point of view of the prosecution, was put to a severe test in her cross examination.
She has frankly made admissions in her cross examination, which throw a very lurid light on the past life of her deceased husband.
She admitted that he had been transported for life for having committed a murder and that after his release also, he had been sent to jail twice for having caused cut injuries to others.
If the first witness were inclined to tell falsehoods or at least to conceal her husband 's past, she could have taken shelter behind failing memory or want of information not an uncommon characteristic of prevaricating witnesses.
Her evidence, read as a whole, rings quite true, and we have no hesitation in acting upon it.
It is true that her evidence in court has been sought to be contradicted by the evidence of P.Ws. 2 to 4, but the latter set of witnesses have been shown to be not reliable because they appear to have made different statements at different stages for reasons of their own.
Their testimony does not inspire confidence and we cannot, therefore, brush aside the testimony of the first witness as compared to the evidence of P.Ws. 2 to 4.
The testimony of the first witness is consistent with what &he has stated in her first information report at the Police Station without any avoidable delay, within less than an hour of the occurrence.
It cannot, therefore, be said that her statement in court, is an afterthought, or the result of tutoring by other interested persons.
Her story of the double attack, first on the front,: and subsequently on the back and 989 side of the victim, is also consistent with the medical evidence as deposed to by the Medical Officer P.W. 8.
It is not necessary to set out in detail the dozen incised gaping.
wounds on the person of the deceased, which are all set out in extenso in the judgment of the learned Sessions Judge who has written a very careful and satisfactory judgment.
Alternatively, it has been argued on behalf of the appellants that it is not safe to convict the appellants on the testimony of a single witness even though she may not have been demonstrated to have been a lying witness.
It has not even been claimed by counsel for the appellants that this is a rule of law.
He has only put it on the ground of prudence that, ordinarily, the court should not, in a case involving a charge of murder, convict an accused person upon the testimony of a single witness.
In this connection, our attention was drawn to the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Mohamed Sugal Esa Mamasan Rer Alalah vs The, King (1).
In that case, their Lordships looked for corroboration of the testimony of a single witness in a murder case.
It is true that in that case, the court had to look for and found corroboration of the testimony of the single witness in support of the murder charge, but the testimony of that witness suffered from two infirmities, namely: (1)The witness was a girl of about 10 or 11 years at the time of occurrence.
(2)The girl witness had not been administered oath because the Court did not consider that she was able to understand the nature of the oath though she was competent to testify.
That was a case from Somaliland to which the provisions of the Indian Evidence Act (1 of 1872) and of the Indian Oaths Act (X of 1873), had been made applicable.
Special leave had been granted to appeal to His Majesty in Council on the ground that the local courts had admitted and acted upon the unsworn evidence of a girl of 10 or 11 years of age.
Their Lordship upheld the conviction and sentence of death, holding that the (1) A.I.R. (1946) P.C. 3. 990 evidence, such as it was, was admissible.
In the course of their Judgment, they made the following observations (at pp.
5 6) which are pertinent to the present controversy : " It was also submitted on behalf of the appellant that assuming the unsworn evidence was admissible the Court could not act upon it unless it was corroborated.
In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused.
But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not.
Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence.
It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.
" The decision of this Court in the case of Vemireddy Satyanarayan Reddy and three others vs The State of Hyderabad (1) was also relied upon in support of the contention that in a murder case the court insists on corroboration of the testimony of a single witness.
In the said reported decision of this Court, P.W. 14 has been described as " a dhobi boy named Gopai. " He was the only person who had witnessed the murder and his testimony had been assailed on the ground that he was an accomplice.
Though this Court repelled the contention that he was an accomplice, it held that his position was analogous to that of an accomplice.
This Court insisted on corroboration of the testimony of the single witness not on the ground that his was the only evidence on which the conviction could be based, but on the ground that though he was not an accomplice, his evidence was analogous to that of an accomplice in the peculiar circumstances of that case as would be clear from the following observations at p. 252: (1) ; 991 is.
Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth.
Such corroboration need not, however, be on the question of the actual commission of the offence; if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same.
" It is not necessary specifically to notice the other decisions of the different High Courts in India in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases.
On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established: (1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated.
One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is 992 much too broadly stated.
Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact.
" The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses.
In England, both before and after the passing of the , there have been a number of statutes as set out in Sarkar 's I Law of Evidence 9th Edition, at pp.
1 100 and 1 101, forbidding convictions on the testimony of a single witness.
The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in section 134 quoted above.
The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted".
Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon.
It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence.
If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished.
It is here that the discretion of the presiding judge comes into play.
The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected.
If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof.
Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
Hence, in our opinion, it is a sound and well established rule of law that the 993 court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact.
Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation.
In the second category, the court, equally has no difficulty in coming to its conclusion.
It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact.
The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.
The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution.
There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime.
But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable.
We have, therefore, no reasons to refuse to act upon the testimony of the 128 994 first witness, which is the only reliable evidence in support of the prosecution.
Lastly, it was urged that assuming that the court was inclined to act upon the testimony of the first witness and to record a conviction for murder as against the first appellant, the court should not impose the extreme penalty of law and in the state of the record as it is, the lesser punishment provided by law should be deemed to meet the ends of justice.
We cannot accede to this line of argument.
The first question which the court has to consider in a case like this, is whether the accused has been proved, to the satisfaction of the court, to have committed the crime.
If the court is convinced about the truth of the prosecution story, conviction has to follow.
The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime.
If the court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law.
In other words, the nature of the proof has nothing to to with the character of the punishment.
The nature of the proof can only bear upon the question of conviction whether or not the accused has been proved to be guilty.
If the court comes to the conclusion that the guilt has been brought home to the accused, and conviction follows, the process of proof is at an end.
The question as to what punishment should be imposed is for the court to decide in all the circumstances of the case with particular reference to any extenuating circumstances.
But the nature of proof, as we have indicated, has nothing to do with the question of punishment.
In this case, there are no such extenuating circumstances which can be legitimately urged in support of the view that the lesser penalty under section 302 of the Indian Penal Code, should meet the ends of justice.
It was a cold blooded murder.
The accused came for the second 995 time, determined to see that their victim did not possibly escape the assassins ' hands.
As regards the second appellant, we need not say anything more than that he was lucky enough to escape conviction under section 302 of the Indian Penal Code, for the reasons given by the High Court, which may not bear close scrutiny.
He amply deserves the punishment of 5 years ' rigorous imprisonment under s.326 of the Indian Penal Code.
For the reasons aforesaid, both the appeals fail and are dismissed.
Appeals dismissed.
[/INST]The appellants were charged with murder and convicted on the sole testimony of a witness.
The first appellant was sentenced to death and the second to five years ' rigorous imprisonment.
it was contended for them, inter alia, that the conviction and sentences should not be upheld because in a case involving a charge of murder the court should not, on the ground of prudence, convict an accused person upon the testimony of a single witness, and, in any case, impose the extreme penalty of law.
Held, that the question whether in such a case the court could convict him depended upon the facts and circumstances of the case and unless corroboration was a statutory requirement, a court could act upon such evidence, though uncorroborated, except in cases where the nature of the testimony of the single witness itself required, as a matter of prudence, that corroboration should be insisted upon, as in the case of a child witness, an accomplice or any others of an analogous character.
Where the court has recorded an order of conviction the question of sentence must be determined, not by the volume or character of the evidence adduced, but on a consideration of any extenuating circumstances which could mitigate the enormity of the crime.
Mohamed Sugal Esa Mamasan Rer Alalah vs The King, A.I.R. and Vemireddy Satyanarayan Reddy and three others vs The State of Hyderabad; , , distinguished.
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<s>[INST] Summarize the judgementiminal Appeal No.138 of 1966.
Appeal by special leave from the judgment and order dated March 22, 1966 of the Allahabad High Court, Lucknow Bench in Criminal Appeal No. 82 of 1965.
S.P. Sinha and M. I. Khowaja, for the appellant.
O.P. Rana, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The appellant Healy was an employee of the NorthEastern Railway and was posted in March 1959 as a platform Inspector at Gorakhpur Railway Station.
The appellant told Ghammoo a sweeper working under him that unless he was paid a bribe of Rs. 15 Ghammoo would be marked absent.
Ghammoo 950 at first demurred but later agreed to pay the amount demanded and to give a bottle of liquor, and thereafter made a report to the R.S.O., Special Police Establishment at Gorakhpur about the demand made by the appellant.
Arrangements were made to set a trap.
On March 27, 1959, Ghammoo went.t to the office of the appellant and paid Rs. 15 in currency notes which had been duly marked by the Special Police Establishment Officers and half a bottle of liquor.
The appellant.
after receiving the currency notes assured Ghammoo that he "would not be harassed any more." Thereafter the police officers and the witnesses who were watching the appellant rushed into his office and recovered the currency notes and the bottle of liquor from him.
The appellant was prosecuted for offences under section 161 I.P. Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, after obtaining the sanction of the Deputy Chief Commercial Superintendent.
It was discovered during the course of the trial that the Deputy Chief Commercial Superintendent was not competent to sanction the prosecution of the appellant.
The Special Judge, at the request of the public prosecutor, by order dated May 27, 1960, quashed the proceeding.
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent, North Eastern Railway, Gorakhpur and the proceeding was again started against the appellant on a charge for offences under section 161 I.P. Code and section 5(1)(d) read with s, 5(2) of the Prevention of Corruption Act, 1947.
The appellant was convicted by the Special Judge and was sentenced to suffer rigorous imprisonment for two years on each count, the sentences to run concurrently.
The order was confirmed in appeal by the High Court of Allahabad.
The appellant has appealed to this Court with special leave.
The evidence of Ghammoo, and J.K. Mehta and V.P. Chaturvedi officers of the Special Police Establishment, and two panchas Krishna Lal and Gandhi Singh was accepted by the Special Judge and by the High Court, the Special Judge held that the appellant had under a threat compelled Ghammoo to give him Rs. 15 and half a bottle of liquor.
The marked currency notes were found on the person of the appellant when the police officers rushed into his office immediately after he received the currency notes from Ghammoo.
The story of the appellant that Ghammoo had been instrumental in filing a false prosecution due to enmity was discarded.
His story that the currency notes and the bottle of liquor were brought by Ghammoo voluntarily and had been placed on his table without any demand by him was also rejected.
There is therefore clear evidence to establish the case for the prosecution that the appellant received a bribe from Ghammoo as a motive for forbearing to show in the exercise of his official functions disfavour against Ghammoo.
951 Counsel for the appellant, however, raised three contentions in support of the appeal: (1 ) The trial by the Special Judge was without jurisdiction because the appellant had been previously tried and had been acquitted in respect of the same offence.
In support of this contention counsel contended that the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant under the Prevention of Corruption Act was a valid sanction, and the order passed by the Special Judge on May 27, 1960, quashing the proceeding at the request of the public prosecutor amounted in law to an order of acquittal and the ,appellant could not again be tried for the same offence.
By virtue of section 6(c) of the Prevention of Corruption Act, 1947, a Court may take cognizance of an offence punishable under section 161 I.P. Code or under section 5 (2) of the Prevention of Corruption Act in the case of a public servant not employed in connection with the affairs of the Union or the affairs of a State, only with the previous sanction of the authority competent to remove him from office.
Cognizance was taken of the offences for which the appellant was tried at the first trial with the sanction of the Deputy Chief Commercial Superintendent, North Eastern Railway, Gorakhpur.
On May 27, 1960, the public prosecutor applied for withdrawal of the case of the prosecution on the ground that the sanction was ineffective.
The Special Judge granted the request and ordered that the proceeding be quashed.
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent, North Eastern Railway, Gorakhpur.
It is contended that the Deputy Chief Commercial Superintendent was competent to sanction the prosecution of the appellant and the order quashing the trial operated as an order of acquittal.
The appellant was appointed by the Traffic Manager of the O.T. Railway in 1947.
After the amalgamation of that Railway with the North Eastern Railway the office of Traffic Manager was abolished and the powers of that Office were thereafter exercisable by the Chief Commercial Superintendent of the North Eastern Railway.
Under r. 1705 cl.
(c) of the Indian Railway Establishment Code no railway servant is liable to be removed or dismissed by an authority lower than that by which he was appointed to the: post held by him substantively.
This rule in substance gives effect to article 311 (1 ) of the Constitution.
Since the appellant was appointed by the Traffic Manager of the O.T. Railway, after amalgamation of that Railway, the power to remove the appellant could be exercised by the Chief Commercial Superintendent.
Counsel for the appellant urged that under cl.
(i) of r. 1704 of the Indian Railway Establishment Code, the authorities specified in column 3 of Sch.
I appended to the Rules in Ch.
XVII of the State Railway Establishment Code Vol. 1, may impose the penalties specified in column 4 upon the classes of railway servants shown in column 952 2 of that Schedule, and Sch.
I which occurs in Appendix III confers upon the Deputy Heads of Department "full powers" of removal from service.
Consequently, it was said, the Deputy Chief Commercial Superintendent had the power to remove the appellant from service, and was competent to grant sanction under section 6 of the Prevention of Corruption Act for the prosecution of the appellant, and that the order passed by the Special Judge quashing the proceeding on May 27, 1960, amounted to an order of acquittal.
But r. 1704 is subject to the provisions of r. 1705, and by r. 1705 it is expressly provided that a railway servant shall not be removed or dismissed by an authority lower than that by which he was appointed to the post head by him substantively.
The powers exercisable under r. 1704(i) being subject to cl.
(c) of r. 1705, and also to the provisions of article 311 of the Constitution, the Deputy Chief Commercial Superintendent could not remove the appellant from service.
It follows therefore that the Deputy Chief Commercial Superintendent had no power to grant sanction for prosecution of the appellant, since he was an officer inferior in rank to the Officer who had appointed the appellant as a railway servant.
The Court may take cognizance of an offence against a public servant for the offences set out in section 6 of the Prevention of Corruption Act only after the previous sanction of the specified authority is obtained.
The Special Judge who had taken cognizance of the.case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an order of acquittal passed by a Court which had no jurisdiction does not bar a retrial for the same offence.
It is unnecessary, therefore, to consider whether the order quashing the proceeding amounted to an order of acquittal.
(2) The facts necessary to ,appreciate the second contention about the irregularity of the procedure followed by the Special Judge are these: J.K. Mehta and V.P. Chaturvedi were examined as witnesses for the prosecution before Mr. Fakhrul Hasan, Special Judge.
Their evidence was recorded in accordance with section 356 Code of Criminal Procedure under supervision of the Special Judge, and record of the evidence was made in Hindi and an English memorandum of the evidence was also maintained by the Special Judge.
The statements of the witnesses were read over to them 'and were signed by them in acknowledgment of their correctness.
But Mr. Fakhrul Hasan died before he could append his signature thereto.
Before the successor of Mr. Fakhrul Hasan, J.K. Mehta and V.P. Chaturvedi were recalled and their evidence which was previously recorded was read over to them.
They confirmed its correctness.
The Special Judge 'also offered to counsel for the appellant opportunity to cross examine the witnesses, but the offer was declined.
No objection was raised to the reading over of the evidence to the witnesses.
It was not suggested 953 that the witnesses should be re examined.
The Special Judge thereafter subscribed his signature to the record of the statements of the witnesses, and to the English memoranda of evidence.
There is no suggestion of injustice actual or possible arising from the failure to comply strictly with the statute: it is contended that failure to observe the letter of the law invalidated the trial.
Section 356( 1 ) of the Code of Criminal Procedure provides: "In all other trials before Courts of Session and Magistrate . the evidence of each witness shall be taken down in writing in the ,language of the Court, either by the Magistrate or Sessions Judge with his own hand or from his dictation in open Court or m his presence and hearing and under his personal direction and superintendence, and the evidence so taken down shall be signed by the Magistrate or Sessions Judge ,and shall form part of the record." Evidence of the witnesses was recorded in the presence and hearing and the personal direction and superintendence of Mr. Fakhrul Hasan.
Mr. Fakhrul Hasan died before he could subscribe his signature.
It is true that the Legislature has enacted that "the evidence so taken down shall be signed by the Magistrate or Sessions Judge".
As observed by Lord Campbell in the case of the Liverpool Borough Bank vs Turner(1): "No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience.
It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.
. . in each case you must look to the subject matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act, and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.
" Section 356 deals with the mode of recording evidence.
The object of the section is to maintain a correct record of the testimony of the witnesses.
The section occurs in Ch.
XXV of the Code, 'and deals with the mode of taking and recording evidence in inquiries and trials.
To ensure a fair trial it is provided that the evidence shall be recorded in the presence of the accused, or where his presence is dispensed with in the presence of his lawyer, (1) ; 954 (section 353 ): in cases tried before the Court of Session, or Magistrates other than Presidency Magistrates, the evidence shall be taken down in writing in the language of the Court either in his own hand by the presiding officer or under his direction in open Court, or in his presence and hearing and under his personal supervision, and shall be signed by him, (section 356): the evidence shall after it is completed be read over to each witness, in the presence of the accused or his lawyer, and it may, if necessary, be corrected, Is. [360(1)]: if the evidence is taken down in 'a language different from the language in which it is given, and the witness does not understand the language in which it is taken down, it shall be interpreted to him Is.[360(3)]: if the accused does not understand the language in which the evidence is given, it shall be interpreted in the language understood by him: and the statement of the accused shall be recorded in the form of questions and answers, Is.
[364(1)], whereas the evidence of witnesses shall unless otherwise directed be taken in narrative form.
Compliance with the provisions is insisted upon in the larger interest of justice, but every departure from the strict letter of the law will not affect the validity of the trial.
The object of the provisions being to ensure that a correct record is maintained of what is said in Court ' by witnesses, so that it may be available at a later stage of the trial and in 'appeal, if the Court is satisfied that in a given case the record notwithstanding any departure from the provisions is correct the irregularity may be ignored if no injustice has resulted therefrom.
A rule relating to.the appending of the signature of the Judge on the record of the evidence does not go to the root of the trial.
Section 537 Code of Criminal Procedure is intended to meet situations in which the strict letter of the law is not complied with.
The section, insofar as it is material, provides: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction, shall be reversed or altered under Ch.
XXVII or on appeal or revision on account (a) of any error, omission, or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceeding before or during trial or in any inquiry or other proceeding under this Code, or Explanation.
In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice.
the Court shall have regard to the fact whether the objection could and 955 should have been raised at an earlier stage in the proceedings.
" There was irregularity in maintaining the record of the evidence at the trial, because the evidence was recorded before one Judge and another Judge subscribed his signature to the record of that evidence.
There was, therefore, no strict compliance with the provisions of section 356(1) Code of Criminal Procedure.
But no ground for holding that the trial is vitiated is made out merely because instead of the Judge who heard the evidence, his successor had signed the record.
In Abdul Rahman vs King Emperor(1), at the trial of a person accused of a charge for abetment of forgery the deposition of witnesses were read over to them while the case otherwise proceeded, and the evidence of some other witnesses was handed over to them to read to themselves.
There was violation of section 360 Code of Criminal Procedure which provided that deposition of each witness should be read over to him in the ' presence of the accused or his pleader.
An objection was raised as to the validity of the order of conviction on the ground that the requirements of section 360 of the Code of Criminal Procedure were not complied with.
No inaccuracy in the deposition was suggested, but only failure to comply with the strict requirements of section 360 was made the ground on which the trial was contended to be vitiated.
The Judicial Committee observed that there had been no actual or possible failure of justice.
According to the Judicial Committee reading over of the depositions of the witnesses while the case was otherwise proceeding was not a violation of section 360 of the Code, and that giving of depositions to witnesses to read to themselves was rightly treated by the High Court as an irregularity curable under section 537 of the Code of Criminal Procedure.
Failure to record the evidence of witnesses J.K. Mehta and V.P. Chaturvedi again in the presence and under the superintendence of the Judge who signed may be a regrettable irregularity, but it does not vitiate the trial.
Counsel for the appellant, however, invited our attention to the judgment of the Privy Council in Nazir Ahmad vs The King Emperor(2), and contended that where the Legislature has prescribed a method in respect of a certain thing, it means that that is the only method in which the thing must be done or not at all.
Counsel said that the method of recording the evidence and of maintaining the record is prescribed by section 356 of the Code of Criminal Procedure and no substitute is permissible.
In our judgment, the principle of Nazir Ahmed 's case(2) has no application here.
That was a case in which the appellant who was charged with dacoity and murder was convicted on the strength (1) L.R. 54 I.A. 96.
(2) L.R. 63 I.A. 372.
956 of a confession said to have been made by him to a magistrate of the class entitled to proceed under the provisions of section 164 of the Code of Criminal Procedure relating to the recording of Confessions.
The confession was not recorded according to the procedure prescribed by section 164 of the Code of Criminal procedure and the record of the confession was not therefore available as evidence.
The Magistrate however appeared as 'a witness and gave oral evidence about the making of the confession.
The Judicial Committee held that the oral evidence of the Magistrate of the alleged confession was inadmissible.
According to the Judicial Committee the effect of sections 164 and 364 of the Code of Criminal Procedure, construed together, is to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation.
The rule that where a power is given to do a certain thing in a certain way the thing must be done in that way, to the exclusion of all other methods of performance, or not at all, was applicable to a magistrate, who is a judicial officer, acting under section 164.
In that case, in the view of the Judicial Committee, the only manner in which a judicial confession could be recorded is the one prescribed by section 164 of the Code of Criminal Procedure and if it is not so corded no evidence of the making of that confession was admissible.
The reasons for that view were explained by the Judicial Committee.
A judicial confession in a trial is of greater sanctity because it is recorded before an independent Judicial Officer after taking full precautions to ensure that the accused making the confession is free from all police or other influence and after the accused has had sufficient opportunity of considering whether he should or should not make confession and that there is no compulsion upon the accused to make a confession.
The law requires that the accused must be explained that he is not bound to make the confession.
A confession obtained in such circumstances has great probative value in considering its voluntary character.
Section 164 prescribes stringent rules as to the manner in which the confession has to be recorded.
If the rules are not complied with, there is no guarantee that the confession has been voluntarily made.
It is in the context of these provisions that the Judicial Committee held that confession which is not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure cannot be deposed to by a Magistrate as if it was an extra judicial confession.
The Judicial Committee observed that when the Legislature has prescribed the method of recording the confessions under section 164 and section 364 it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves.
They further observed: "As 'a matter of good sense, the position of accused persons and the position of magistracy are both to be 957 considered.
An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records.
Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath.
So with regard to the magistracy: it is for obvious reasons most undesirable that magistrates and judges should be in the position of witnesses in so ,far as it can be avoided.
Sometimes it cannot be avoided, as under section 533; but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the Legislature designed that it should be made available in that form and no other.
In their Lordships ' view, it would be particularly unfortunate if magistrates were ,asked at all generally to act rather as police officers the as judicial persons, to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates, from any obligation to make records under section 164." No such considerations apply to the record of evidence of witnesses given in open court made in the presence and under the personal supervision of a Judge and in the presence of the accused, and his lawyer.
(3) It was then urged that the investigation was made by an officer who had no 'authority to investigate the offence.
After Ghammoo made his complaint sanction of the Additional District Magistrate (Judicial) was obtained for investigation of the case by a police officer below the rank of a Deputy Superintendent of Police.
Section 5A(1 )(d) of the Prevention of Corruption Act, 1947, provides: "No police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under section 161, section 165 or section 165A of the I.P.C. or under section 5 of this Act without order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or to make any arrest therefore without a warrant . " The Legislature has provided that ordinarily investigation of a case against a public servant should be made by an officer not below the rank of a Deputy Superintendent of Police in connection with the charge of bribery and related offences.
But the Legis 958 lature has expressly provided that an Officer below the rank of a Deputy Superintendent of Police may investigate those offences with the order of a Presidency Magistrate or a Magistrate of the First Class.
In the present case the order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained authorising an Officer below the rank of a Deputy Superintendent of Police to investigate the offence.
No objection is raised to the regularity of the proceeding before the Additional District Magistrate, nor is there any ground that for an oblique motive, services of an officer below the rank of a Deputy Superintendent of Police were used in making the investigation against the appellant.
The third contention must also fail.
The appeal fails and is dismissed.
R.K.P. section Appeal dismissed.
[/INST]Clause 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by the Central Government under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, does not deprive a citizen of the right to dispose of or transport cotton tex B tiles purchased by him.
It requires him to take a. permit from the Textile Commissioner to enable him to transport them.
The requirement of a permit in this respect cannot be regarded as an A unreasonable restriction on the citizen 's right under sub clauses (f) and (g) of article 19(1) of the Constitution.
The policy underlying the Control Order is to regulate the transport of cotton textiles in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all.
The grant or a refusal of a permit is to be governed by the policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy.
The conferment of such a discretion cannot be called invalid and if there is an abuse of power there is ample power in Courts to undo the mischief.
Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (([1954] S.C.R. 803) distinguished.
It was settled by the majority judgment in the Delhi Laws Act case ([1951] 'S.C.R. 747) that the essential powers of legislation cannot be delegated.
The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law.
The Legislature has laid down such a principle in the Act and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at given prices.
The preamble and the body of the sections in the Essential Supplies (Temporary Powers) Act, 1946, sufficiently formulate the legislative policy and the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy.
Therefore section 3 of the Act is not ultra vires the Legislature on the ground of delegation of legislative power.
Section 4 of the Act enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself.
Accordingly section 4 of the Act is not ultra vires on the ground of excessive delegation of legislative powers.
Shannon vs Lower Maintand Dairy Products Board ([1938] A.C. 708) applied.
382 The requirements of a permit by clause 3 and the provisions of clause 4 of the Central Order which empower the Textile Commissioner to direct a carrier to close booking or transport of cloth apparel, etc., are not in conflict with sections 27, 28 and 41 of the Railways Act.
These clauses merely supplement the relevant provisions of the Railways Act and do not supersede them. ' Section 6 of the Act does not either expressly or by implication repeal any of the provisions of the preexisting laws ; nor does it abrogate them.
Those laws remain untouched and unaffected so far as the statute book is concerned.
The repeal of a statute means that the repealed statute must be regarded as if it had never been on the statute book.
The effect of section 6 is not to repeal those laws or abrogate them but simply to by pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 or the orders made thereunder.
Even assuming that the existing law stands repealed by implication, such abrogation or repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3.
Accordingly there is no delegation involved in the provision of section 6 and it cannot be held uncon stitutional on that ground.
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<s>[INST] Summarize the judgementon (Civil) No. 577 of 1988.
(Under Article 32 of the Constitution of India).
S.R. Bhat and R. Venkataramani for the Petitioner Dr. B.S. Chauhan for the Respondents and Shobha Dikshit for he State of U.P.
The Judgment of the Court was delivered by 741 SABYASACHI MUKHARJI, CJ.
A letter written to this Court was treated as a writ petition under Article 32 of the Constitution of India.
The letter written by Chhetriya Pardushan Mukti Sangharsh Samiti.
Sarnath, alleged environ mental pollution in the area.
It was also alleged therein that the Jhunjhunwala Oil Mills and a refinery plant are located in the green belt area, touching three villages and the Sarnath temple of international fame.
The smoke and dust emitted from the chimneys of the Mills and the effluents discharged from these plants were alleged to be causing environmental pollution in the thickly populated area and were proving a great health hazard.
It was further stated that the people were finding it difficult to eat and sleep due to smoke and foul smell and the highly polluted water.
It was further alleged that the lands in the area had become waste, affecting crops and the orchards damages.
Diseases like TB, jaundice and other ailments were stated to be spreading in an epidemic form.
The growth of children was affected.
It was further alleged that the schools, nursing homes, leprosy homes and hospitals situated on the one kilometer long belt touching the oil Mills and the plant were adversely affected.
It was stated that licences had been issued to one richman Dina Nath for these industrial units thereby risking the lives of thousands of people without enforcing any safety measure either to cure the effluents discharged from the plants or to check the smoke and the foul smell emitted from the chimneys.
The whole area was expected to be ruined due to any explosion or gas leak age.
In that background, the petitioner prayed for necessary directions to check the pollution, and also enclosed a printed leaflet alleging real practices and corruption on the part of the proprietor of these industrial units apart from polluting the atmosphere.
As mentioned hereinbefore, the complaint was made by the said Samiti stated to be a social organisation about envi ronmental pollution and ecological imbalance being caused by the two plants and thereby exposing the population to health hazards and life risk which was, therefore, considered to be a matter of great public importance.
It is necessary to recognise the danger in order to strike a balance between the quality of life to be preserved and the economic devel opment to be encouraged.
Dealing with this aspect in M.C. Mehta vs Union of India & Ors., , it has been stated that whenever applications for licences to establish new industries are made in future, such applica tions should be refused unless adequate provision has been made for the treatment of trade effluents flowing out of the factories.
So, this letter was treated as a writ petition and notice was issued, 742 counter affidavits was filed on behalf of respondent No. 3 being the proprietor of Jhunjhunwala Oil Mills.
Reference was made to the decision of this Court in Bandhua Mukti Morcha vs Union of India & Ors., ; wherein this Court underlined the importance of satisfactory verifi cation of allegations.
The Court was asked to be ever vigi lant against abuse of its process and there was need for appropriate verification.
There is a statute for controlling pollution.
It is wellsettled that if there is a statute prescribing a judicial procedure governing a particular case, the court must follow such procedure.
It is not open to the court to by pass the statute and evolve a different procedure at variance with it.
It is further asserted on behalf of the respondents that between the petitioner Sita Ram Pandey and respondent No. 3, there was a long rivalry.
According to respondent No. 3, the petitioner is an anti social element and his only aim was to extract money from the people like respondent No. 3 as in the present case.
It has further been stated that there has been criminal proceeding against the petitioner and several items have been marked in the affidavit in opposition.
The particulars make out a rather disgraceful state of affairs.
It has been alleged that Mr. Sita Ram Pandey for the last so many years was blackmailing the people, and a case u/s 500 of the I.P.C being Case No. 121/88 was filed.
It has been further averred that respondent No. 3 has complied with the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and of the water (Prevention & Control of Pollution) Act, 1974 and there is no complaint of any kind from any person, body or authority.
The correspondence, in this connection, has been set out.
It further appears that as early as 1980, the petitioner had made various complaints to the A.D.M. (Supply), Distt.
Varanasi, alleging that respondent No. 3 was accused of smuggling of coal and diesel blackmailing.
It was dismissed.
It further appears that there was no complaint from anybody apart from the present petitioner by any authority as to the non compliance of any statute by respondent No. 3.
The orders passed by the Pollution Control Board which had been annexed, also indicate that there are no instance of viola tion of the said Acts.
Time was sought on behalf of respondents for filing a rejoinder which, unfortunately, has not been filed, and no satisfactory explanation has been given therefore.
Certain letters alleged to have been written on behalf of the peti tioners were sought to be placed before us in the Court today.
743 Having considered the facts, circumstances, nature of the allegations and the long history of enemit and animosi ty, we are of the opinion that prima facie the provisions of the relevant Act, namely, the Air Pollution Control Act have been complied with and there is no conduct which is at tributable to respondent No. 3 herein leading to pollution of air or ecological imbalances calling for interference by this Court.
Article 32 is a great and salutary safeguard for preser vation of fundamental rights of the citizens.
Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Consti tution of India.
Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitu tion.
But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community.
This weapon as a safeguard must be utilised and invoked by the Court with great deal of circum spection and caution.
Where it appears that this is only a cloak to "feed fact ancient grudge" and enemity, this should not only be refused but strongly discouraged.
While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court.
That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights.
Having regard to the ugly rivalry here, we have no doubt that between the contestants, the Court was misled and we must, therefore, proceed with caution.
There was no funda mental right violation or could be violative if the allega tions of the so called champions on behalf of the society are scrutinised.
We must protect the society from the so called 'protectors '.
This application is legally devoid of any merit or principles of public interest and public pro tection.
This application certainly creates bottlenecks in courts, which is an abuse of process of this Court.
We have, therefore, no hesitation in dismissing this application with the observations made herein.
G.N. Petition dis missed.
[/INST]The Petitioner, representing a Social Organisation, has written a letter alleging environment pollution in some villages and the adjoining Sarnath Temple.
The letter was treated as Writ Petition under Article 32 of the Constitu tion of India.
It was alleged that the smoke and dust emit ted from the Chimneys of Respondent No. 3, viz., an oil Mill and a refinery plant in the area, and the effluents dis charged by the plants has been causing serious environmental pollution in the thickly populated area, leading to epidemic diseases.
It was further alleged that even the flora was badly affected by pollution.
Petitioner prayed for direc tions to check the pollution.
On behalf of Respondent No. 3, it was contended that it had complied with the provisions of Air (Prevention and Control of Pollution) Act, 1981 and the and there was no com plaint whatsoever.
It was further stated that the petitioner was an anti social element and his only aim was to blackmail and extract money from people like Respondent No. 3, and that a criminal case has already been filed against him, for such activities.
Dismissing the writ petition, HELD: 1.
Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens.
Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India.
Anything which 740 endangers or impairs by conduct of anybody either in viola tion or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution.
But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community.
This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution.
Where it appears that this is only a cloak to "feed fat ancient grudge" and enemity, this should not only be refused but strongly discouraged.
While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court.
That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights.
[743B E] Bandhu Mukti Morchay.
Union of lndia & Ors.; , , referred to.
This petition is legally devoid of any merit or principles of public interest and public protection.
There was no fundamental right violation or could be violative if the allegations of the so called champions on behalf of the society are scrutinised.
[743G] 2.2.
Prima facie the provisions of the relevant Act, namely, the Air Pollution Control Act have been complied with and there is no conduct which is attributable to re spondent No. 3 herein leading to pollution of air or ecolog ical imbalances calling for interference by this Court.
The orders passed by the Pollution Control Board also indicate that there were no instances of any violation.
There was no complaint from anybody apart from the petitioner, or any authority as to the non compliance of any statute by Re spondent No. 3.
[743A B; 742G]
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<s>[INST] Summarize the judgementCivil Appeals Nos.
848 850 of 1977.
From the Judgment and Order dated 16 7 1976 of the Kerala High Court in W.A. Nos. 910, 194 and 253/75.
AND CIVIL APPEAL Nos.
666 669 of 1978.
From the Judgment and decree dated 8 6 1977 of the Kerala High Court in W.A. Nos.
364 365, 472 and 473 of 1975.
P. Govindan Nair and K. R. Nambiar for the Appellants in CAs.
848/77 and 666 667/78 and for Respondents 2 to 4 in CA 849/77 and 2 3 in CA 850/77.
M. M. Abdul Khader and N. Sudhakaran for the Appellant in CAs.
849 850/77 and Respondent 2 in CA 848/77 and RR1 in CA 666/78, 667/78 and RR 2 in CA 668 669/78.
T. section Krishnamoorthy Iyer, T.P. Sundara Rajan and P. K. Pillai for Respondent No. 1 in 848/77.
T. L. Vishwanath Iyer, and section Balakrishnan for the Respondent No. 1 in CAs.
668 669/78 and RR 2 in CAs.
666 667/78.
The Judgment of the Court was delivered by 292 KRISHNA IYER, J.
Law and development, as yet a Cinderella of our corpus juris, is a burgeoning branch of creative jurisprudence which needs to be nourished with judicious care, by courts in developing countries.
The Town Planning Act, a developmental legislation amended and updated by the Kerala Legislature, was designed to draw up plans and to execute projects for the improvement of the towns and cities of that over crowded State with its populous multitudes uncontrollably spiralling, defying social hygiene and economic engineering.
Although the Act is of 1932 and originally confined to the Travancore portion of the Kerala State, it has received amendatory attention and now applies to the whole of Kerala with beneficial impact upon explosive cities like Cochin.
This legislation, naturally, has made some deviation from the Kerala Land Acquisition Act, 1961, but having received insufficient attention from the draftsman on constitutional provisions, has landed the Act in litigation through a challenge in the High Court where it met with its judicial Waterloo when a Division Bench invalidated Section 31(1) and 34(2A) which were the strategic provisions whose exit from the statute would virtually scotch the whole measure.
The State of Kerala has come up in appeal, although the immediate victim is the Cochin Town Planning Trust.
The schematic projection of the Town Planning Act (the Act, for short) may be a good starting point for the discussion of the sub missions made at the Bar.
The Act, with a prophetic touch, envisions explosive urban developments leading to terrific stresses and strains, human, industrial and societal.
Land is at the base of all development, and demand for the limited space available in the cities may so defile and distort planned progress as to give future shock unless scientific social engineering takes hold of the situation.
The State of its specialized agencies must take preemptive action and regulate the process of growth.
The Act fills this need and contemplates the creation of a Town Planning Trust, preparation of town planning schemes, acquisition of lands in this behalf, compensation for betterment by citizens and other miscellaneous provisions, apart from creation of development authorities.
While this is the sweep of the statute, our concern is limited to schemes sanctioned by Section 12, acquisition of lands for such schemes under Section 32, compensation for such compulsory taking under Section 34 and the modifications in the manner of acquisition and the mode of compensation wrought into the Land Acquisition Act by the above provisions of the Town Planning Act.
It is indisputable that the compensation payable and certain other matters connected therewith, differ as between the provisions in this Act and the Land Acquisition Act.
The latter is more beneficial 293 to the owner and the challenge, naturally, has stemmed from this allegedly invidious discrimination.
In two separate cases, two judges upheld the challenge and, on appeal, the High Court affirmed the holdings that the provisions of Sub section 34(1) and 34(2A) were unconstitutional, being violative of Article 14.
Hence these appeals.
We will now proceed to scan the substance of the submissions and the reasoning in the High Court 's judgment.
Counsel for the State, Shri P. Govindan Nair, supported by counsel for the Trust, Shri Abdul Khader, have canvassed the correctness of the reasons which have appealed to the High Court, and some decisions of this Court have been brought to our notice in this connection.
The owners of the lands acquired have been represented before us by Sri T. C. Raghavan who has, in his short submission, supported the judgment under appeal.
One of the appeals has become infructious, because the State, after the High Court invalidated Section 34 of the Act, proceeded under the Land Acquisition Act, acquired the land, paid compensation and took possession thereof, thus completely satisfying the land owner.
Shri T. section Krishnamurthi Iyer, appearing for the owner, pointed out this circumstance and so we dismissed that appeal but mention it here because Shri T. C. Raghavan has relied on this fact in support of one of his arguments, as we will presently disclose.
Before entering into the merits, we may recall the submissions of Shri T. L. Viswanathan, a young lawyer from Kerala, who made us feel that orality, marked by pointed brevity and suasive precision, is more telling than advocacy with counter productive prolixity.
Although the responsible scrutiny that a bench decision of the High Court deserves has been bestowed, we are unable to support the judgment under appeal or the arguments of counsel in support.
The controversy regarding the vires of Sec.
34 revolved round a few points.
Before us, article 14 has loomed large and a submission has been made that by use of the provisions for making schemes under Sec. 8 or Sec.
10 the authority may indefinitely immobilize the owner 's ability to deal with his land since Sec.
15 clamps restrictions, and this is unreasonable.
We agree that it is a hardship for the owner of the land if his ability to deal with his property is either restricted or prevented by a notification, and nothing happens, thereafter, leaving him guessing as to what the State may eventually do.
Indeed, if such a state of suspense continues for unlimited periods, it may be unreasonable restriction on the right to property, although currently the right to pro 294 perty itself has been taken away from Part III.
That apart, we must see whether there is any justifiable classification between common cases of compulsory acquisition under the Land Acquisition Act and the special class of acquisitions covered by the Town Planning Act which may furnish a differentia sufficient to repel the attack of Article 14.
Section 15 of the Act forbids dealings by the owner in many ways, once the publication of a notification is made.
The grievance particularised by Shri Raghavan is that after a draft scheme has been prepared by the municipal council and published, it becomes operational only on the sanction by Government but there is no time limit fixed in Sec.
12 within which Government shall sanction.
Supposing it takes several years for Government to express its approval or disapproval, the owner may suffer.
We regard this grievance as mythical, not real, for more than one reason.
The scheme is for improvement of a town and, therefore, has a sense of urgency implicit in it.
Government is aware of this import and it is fanciful apprehension to imagine that lazy insouciance will make Government slumber over the draft scheme for long years.
Expeditious despatch is writ large on the process and that is an in built guideline in the statute.
At the same time, taking a pragmatic view, no precise time scale can be fixed in the Act because of the myriad factors which are to be considered by Government before granting sanction to a scheme in its original form or after modification.
Section 12 and the other provisions give us some idea of the difficulty of a rigid time frame being written into the statute especially when schemes may be small or big, simple or complex, demanding enquiries or provoking discontent.
The many exercises, the differences of scale, the diverse consequences, the overall implications of developmental schemes and projects and the plurality of considerations, expert techniques and frequent consultations, hearings and other factors, precedent to according sanction are such that the many sided dimension of the sanctioning process makes fixation of rigid time limits by the statute an impractical prescription.
As pointed out earlier, city improvement schemes have facets which mark them out from other land acquisition proposals.
To miss the massive import and specialised nature of improvement schemes is to expose one 's innocence of the dynamics of urban development.
Shri Raghavan fairly pointed out that, in other stages, the Act provides for limitation in time (for example, sec. 33 which fixes a period of three years between the date of notification and the actual acquisition).
Only in one minimal area where time limit may not be workable, it has not been specified.
The statute has left it to Government to deal expeditiously with the scheme and we see sufficient guideline in the Act not to make the gap between the 295 draft scheme and governmental sanction too procrastinatory to be arbitrary.
We need hardly say, that the court is not powerless to quash and grant relief where, arbitrary protraction or mala fide inaction of authorities injures an owner.
An aside: We are surprised at the obsolescent and obscurantist vocabulary surviving in the Town Planning Act because there are many B feudal and incongruous expressions such as 'our Governments and references to a Land Acquisition Act which has already been repealed by the Kerala Land Acquisition Act, 1961.
Modernisation is a process necessary even for the statute book and yet it has not been done, despite opportunity for the legislature, while amending later, to carry out such simple, verbal and yet necessary changes.
Be it remembered that the Town Planning Act did undergo an extensive amendment as late as 1976 when, surely, some of the verbal replacements could easily have been made.
Medievalism lingering in legislations is hardly a tribute to the awareness of our legislators.
Section 12 of the Act provides for publishing the draft schemes so that objections or suggestions may be put forward by affected persons.
The scheme is then passed by the Municipal Council, of course, after considering objections and suggestions.
Thereupon, it is submitted to the Government for sanction and the fact of such submission is also published so that the public may still raise objections or make suggestions to Govt.
which will consider them, make further inquiries, if necessary, and ultimately sanction the scheme with or without modifications or may even refuse sanction or return the scheme to the Council for fresh consideration.
Once the scheme is sanctioned by the Government, it is again published.
Section 12(6) imparts finality to the scheme and this virtually corresponds to the declaration under sec.
6 of the Land Acquisition Act.
Chapter III of the Act is comprehensive and complex because the subject of scheme making demands expert attention and affects community interest.
A Director of Town Planning is appointed who shall be consulted by Municipal Councils in matters of town planning.
Developmental schemes are not sudden creations.
On the other hand, the Municipal Council first decides to prepare a scheme, adopts a draft scheme, if any, made by the owners of the lands, prepares the necessary plan of the lands which is proposed to be included in the scheme and notify its resolution for public information.
A copy of the plan is kept for the inspection of the public.
Since all improvement schemes are matters of public concern, on the passing of a resolution and its notification under sec. 8, a time bound obligation is cast on the Municipal Council by section 9, which reads thus : 296 "section 9: Publication of draft scheme: (1) If the resolution is to make a scheme, municipal council shall, within twelve months from the date of the notification under s.8 or within such further period not exceeding twelve months, as our Government may allow, and after consulting, in the prescribed manner, the owners of lands and buildings in the area affected, prepare and publish a draft scheme.
" It is apparent that improvement schemes cannot hang on indefinitely and an outside limit of 2 years is given for the preparation and publication of draft schemes from the initial resolution to make or adopt the scheme is passed by the Municipal Council.
Government itself may step in and direct the Municipal Council to prepare schemes and sec.
10 empowers it in this behalf.
11 contains detailed provisions regarding the material to be included in the draft scheme.
These are preparatory exercises, and then comes the sanction of the scheme by the Government under Sec. 12.
We indicate the elaborate character of the strategy, stages, contents and character of schemes for improvement and the opportunities for objections and suggestions to the public and the consultation with technical experts and Government, time and again, only to emphasise the complex nature of modern urban development schemes which makes it a different category altogether from the common run of 'public purposes ' for which compulsory acquisition is undertaken by the State.
Conceptwise and strategywise, development schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as based on a rational differentia which has a reasonable relation to the end in view viz., improvement of towns and disciplining their development.
Once this basic factor is recognised, the raison detre of a separate legislation for and separate treatment of town planning as a special subject becomes clear.
It was pointed out that under the Kerala Land Acquisition Act, there is a time limit of 2 years written into Section 6 by engrafting a proviso thereto through an amendment of 1968 Act (Act 29 of 1968).
Section 6 deals with a declaration that land is required for a public purpose and the relevant proviso thereto reads: "S.6(i) Proviso : Provided that no declaration in respect of any particular land covered by a notification under sub section (1) of shall be made after the expiry of two years from the date of publication of such notification." An argument was put forward that under the Land Acquisition Act there is thus a protection against unlimited uncertainty for the owners once lands are frozen in the matter of dealing with them by an initial notification.
This protection against protraction and inaction on the part of the State and immobilisation of ownership is absent in the Town Planning Act.
According to Mr. T. C. Raghavan, appearing for some respondents, this makes for arbitrariness and discrimination invalidatory of the relevant provisions of the Town Planning Act.
In our view there is no substance in this submission, having regard to the specialised nature of improvement schemes and the democratic a participation in the process required in such cases.
We repel the submission.
Much argument was addressed on the 'either or ' arbitrariness implicit in section 33 of the Act.
The precise contention is that it is open to the Trust to acquire either under the Kerala Land Acquisition Act or under Chapter VII of the Town Planning Act.
In the latter event, no solatium is payable while under the former statute it is a statutory obligation of the acquiring Govt.
Thus, if an Authority has an option to proceed under one statute or the other and the consequences upon the owner are more onerous or less, such a facultative provision bears the lethal vice of arbitrariness in its bosom and is violative of article 14 and is therefore, void.
Section 32 of the Act is the foundation for this argument and reads thus: 32.
Modification of Land Acquisition Act: Immovable property required for the purpose of town planning scheme shall be deemed to be land needed for a purpose within the meaning of the Land Acquisition Act, XI of 1089, and may be acquired under the said (Act) modified in the manner provided in this chapter.
What is spun out of the words used is that for the purposes of town planning schemes an immovable property "may be acquired under the said Act (The Land Acquisition Act) modified in the manner provided in this Chapter".
Of course, Chapter VII, particularly sub sec.
(1) of section 34 thereof, relates to compensation and does not provide for payment of solatium.
Moreover, it is mentioned that the provisions of sections 14, 22 and 23 (both sides agree, this should be read as Sec. 25) of the Land Acquisition Act shall have no application in the acquisition of property for the purpose of the Town Planning Act.
298 We do not accept the argument that there is a legal option for the authority to acquire either under the Land Acquisition Act or under the Town Planning Act when land is needed for a scheme.
Theoretically, yes, but practically, No. Which sensible statutory functionary, responsible to the Treasury and to the community, will resort to the more expensive process under the Land Acquisition Act as against the specially designed and less costly provision under section 34? Fanciful possibilities, freak exercise and speculative aberrations are not realistic enough for constitutional invalidation on the score of actual alter.
natives or alive options, one more onerous than the other.
In Magan lal 's case, the Court pointed out : "The statute itself is the two classes of cases before us clearly lays down the purpose behind them, that is premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorised persons occupying them.
This is a sufficient guidance for the authorities on whom the power has been conferred.
With such an indication clearly given in the statutes one expects the officers concerned to abail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court.
Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter.
Administrative officers, no less than the courts, do not function in a vacuum.
It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Govt.
property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other.
The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion.
In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal.
It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account.
This is not one of those cases where discrimination is writ large on the face of the statute.
Discrimi 299 nation may be possible but is very improbable.
And if there is discrimination in actual practice this Court is not powerless.
Furthermore, the fact that the Legis lature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorized occupants or Govt.
and Corporation property and provided a special speedy procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants.
We therefore, find ourselves unable to agree with the majority in the Northern India Caterers ' case.
" The same reasoning applies to the present situation.
The Town Planning Act is a special statute where lands have to be acquired on a large scale and as early and quickly as possible so that schemes may be implemented with promptitude.
What is more, there is a specific and purposeful provision excluding some sections of the Kerala Land Acquisition Act.
In such circumstances, it is incredible that the authority acting under the Act will sabotage Chapter VII, in particular section 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms.
He functions under the Town Planning Act, needs Lands for the schemes under that Act, has provisions for acquisition under that Act.
Then would be, by reckless action, travel beyond that Act and with a view to oblige the private owner betray the public interest and resort to the power under the Land Acquisition Act, disregarding the non obstante provision in Sec.
of the Act? Presumption of perversity cannot be the foundation of unconstitutionality.
Moreover, the expression, used in the context of section 32, clearly (does not bear the meaning attributed to it by the counsel for the respondents.
All that it means is that when immovable property is found necessary for the purpose of a 'scheme ' it may be acquired by the compulsory process written into section 32.
It is, as if there were only one option, not two.
If the scheme is to be implemented, the mode of acquisition shall be under section 32 and the manner of such acquisition is the same under the Land Acquisition Act minus sections 14, 22 and 25 thereof.
A slight reflection makes it clear that the mode prescribed is only one, and so the theory of alternatives one of which being mere onerous than the other, and the consequent inference of arbitrariness, cannot arise.
We overrule that argument.
We must notice, before we part with this point, the argument of Sri Raghavan for the respondents that the existence of alternatives is not theoretical nor chimerical but real, and proof of the pudding is in the eating.
He pointed to one of the appeals in this batch where the proceedings under sec.
34 of the Act were given up, the provision 300 of the Land Acquisition Act used, and full compensation and solatium paid to the owner.
This instance gave flesh and blood to the submission about discrimination.
Shri Khader, for the trust countered this argument by stating that because the High Court struck clown the Act and the land was needed.
the only statute then available to the State was the Land Acquisition Act.
So, the authority was reluctantly constrained to notify and acquire under the Land Acquisition Act.
Had Sec.
34 of the Act been available, this step would not have been taken and absent Sec.
34 the argument of alternatives has no basis.
We agree with this reasoning and repel the submission of arbitrary power to pick and choose.
At worst, a swallow does not make a summer but we must warn that prodigal state action to favour some owner when sec.
34 has been resuscitated will be betrayal of public interest and invalidated as mala fide even at the instance of a concerned citizen.
The legislature cannot be stultified by the suspicious improvidence, or worse, of the Executive.
The more serious submission pressed tersely but clearly, backed by a catena of cases, by Shri Viswanathan merits our consideration.
The argument is shortly this.
As between two owners of property.
the presence of public purpose empowers the State to take the lands of either or both.
But the differential nature of the public purpose does not furnish a rational ground to pay more compensation for one owner and less for another and that impertinence vitiates the present measure.
The purpose may be slum clearance, flood control or housing for workers, but how does the diversity of purposes warrant payment of differential scales or quantum of compensation where no constitutional immunity as in article 31A, or applies? Public purpose sanctions compulsory acquisition, not discriminatory compensation, whether you take A 's land for improvement scheme or irrigation scheme, how can you pay more or less, guided by an irrelevance viz. the particular public purpose? The State must act equally when it takes property unless there is an intelligent and intelligible differentia between two categories of owners having a nexus with the object, namely the scale of compensation.
It is intellectual confusion of constitutional principle to regard classification good for one purpose, as obliteration of differences for unrelated aspects.
This logic is neatly applied in a series af cases of this Court.
It is trite that the test to rebuff article 14 turns of the differentia vis a vis the object of the classification.
In Vajarveu Mudaiar 's case, the Court took the view, (on this aspect the decision is not shown to have been overruled) that where there is no rational relation in the 301 matter of quantum of compensation between one public purpose and another you cannot differentiate between owners.
Whether you acquire for a hospital or university, for slum clearance or housing scheme, compensation cannot vary in the rate or scale or otherwise.
"Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the Principal Act, out of two adjacent plots belonging to the same individual and of the same quality ' and value, one may be acquired under the Principal and the other under the Amending Act.
From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved.
In Durganath Sharma 's case, a special legislation for acquisition of land for flood control came up for constitutional examination.
We confine ourselves to the differentiation in the rate of compensation based on the accident of the nature of the purpose where the Court struck a similar note.
In the Nagpur Improvement Trust case and in the Om Prakash case, this Court voided the legislation which provided differential compensation based upon the purpose.
In the latter case the Court observed : "There can be no dispute that the Govt. can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified Land Acquisition Act, 1894, or under that Act as modified by the Adhiniyam.
If it chooses the first course, then the land owners concerned will be entitled to better compensation including 15% solatium, the potential value of the land etc.
nor will there be any impediment or hurdle such as that enacted by section 372(a) of the Adhiniyam in the way of such land owners, dissatisfied by the Collector 's award, to approach the Court under section 18 of that Act.
It is not necessary to dilate further on this point at this matter stands concluded by this Court 's decision in Nagpur Improvement Trust 's case by the ratio of which we bound.
It will be sufficient to close the discussion by extracting here what Sikri C.J., speaking for the Court in Nagpur Improvement Trust 's case said: "Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60 % of the value and for a Govt.
building at 70 % of the 302 market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other.
article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right.
It seems to us that ordinarily a classification based on the public purpose is not permissible under article 14 for the purpose of determining compensation.
The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation.
Can classifications be made on the basis of authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired.
If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14.
" The principle that may be distilled from these rulings and the basics of 'equality ' jurisprudence is that classification is not permissible for compensation purposes so long as the differentia relied on has no rational relation to the object in view viz. reduction in recompense.
Is it rational to pay different scales of compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on whether you acquire for housing or hospital, irrigation scheme or town improvement, school building or police station? The amount of compensation payable has no bearing on this distinction, although it is conceivable that classification for purposes of compensation may exist and in such cases the statute may be good.
We are unable to discern any valid discremen in the Town Planning Act vis a vis the Land Acquisition Act warranting a classification in the matter of denial of solatium.
We uphold the Act in other respects but not when it deals invidiously between two owners based on an irrelevant criterion viz. the acquisition being for an improvement scheme.
We are not to be 303 understood to mean that the rate of compensation may not vary or must be uniform in all cases.
We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with article 14.
No such circumstances are present here nor pressed.
Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion, both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinction.
The core question now arises.
What is the effect even if we read a discriminatory design in Sec.
34? Is plastic surgery permissible or demolition of the section inevitable? Assuming that there is an untenable discrimination in the matter of compensation does the whole of section 34 have to be liquidated or severable portions voided? In our opinion, scuttling the section, the course the High Court has chosen, should be the last step.
The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent.
Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment.
Law keeps alive and "operation pull down" is de mode.
Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between section 34 of the Act and section 25 of the Land Acquisition Act vis a vis quantification of compensation is the non payment of solatium in the former case because of the provision in section 34(1) that section 25 of the Land Acquisition Act shall have no application.
Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of section 25 of the Land Acquisition Act from section 34(1) of the Town Planning Act.
The whole of section 34(1) does not have to be struck down.
Once we excise the discriminatory and, therefore, void part in Sec.
34(1) of the Act, equality is restored.
The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act.
What is rendered void by article 13 is only to the extent of the contravention of article 14.
The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision.
We hold that the exclusion of Sec.
25 of the Land Acquisition Act from sec.
34 of the Act is unconstitutional but it is severable and we sever it.
The necessary consequence is that section 34(1) will be read omitting the words 'and section 25 ' .
What follows then? Section 32 obligates the state to act under the Land Acquisition Act but we have struck down that part which excludes sec.
25 of the Land Acquisition Act 304 and so, the 'modification ' no longer covers section 25.
It continues to apply to the acquisition of property under the Town Planning Act.
Section 34(2) provides for compensation exactly like section 25(1) of the Land Acquisition Act and, in the light of what we have just decided, section 25(2) will also apply and "in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per cen tum on such market value in consideration of the compulsory nature of the acquisition.
" The upshot of this litigation thus is that the appeal must be allowed except to the extent that solatium shall be payable as under the Land Acquisition Act.
Since the State has always been willing to pay that component and has repeated that offer even before us right from the beginning, we direct the parties to bear their respective costs.
P.B.R. Appeal allowed.
[/INST]The Cochin Town Planning Act in particular contemplates the creation of a town planning trust, the preparation of town planning schemes (section 12) acquisition of lands in this behalf (section 32) compensation for such compulsory taking (section 34) and modifications in the manner of acquisition and the mode of compensation in the Kerala Land Acquisition Act.
The petitioners ' writ petitions challenging the validity of the Town Planning Act were allowed by the High Court on the ground that the provisions of Section 34(1) and 34(2A) were unconstitutional being violative of article 14 of the Constitution.
In appeal to this Court it was contended that by the use of the provisions for making schemes under section 8 or section 10, the authority may indefinitely immobilize the owner 's ability to deal with his land since section 15 clamps restrictions and this is unreasonable. ^ HELD: 1.
City improvement schemes have facets which mark them out from other land acquisition proposals.
To miss the massive import of the 15 specialised nature of important schemes is to expose one 's innocence of the dynamics of urban development.
The statute has left it to the government to deal expeditiously with the scheme and there are sufficient guidelines in the Act not to make the gap between the draft scheme and governmental sanction too procrastinatory to be arbitrary.
[294 G H] 2.
Section 12(6) imparts finality to The scheme and this corresponds to the declaration under section 6 of the Land Acquisition Act.
A conspectus of the relevant provisions of the Act makes it clear that improvement scheme cannot hang on indefinitely and an outside limit of two years is given for the preparation and publication of draft schemes from the time the initial resolution to make or adopt the scheme is passed by the Municipal Council.
Conceptwise and strategy wise development schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as based on rational differentia which has a reasonable relation to the end in view namely improvement of towns and disciplining their development.
[295 F G] 3.
There is no substance in the argument that if the land is acquired under the Town Planning Act no solatium is payable while if the land is acquired under the Land Acquisition Act it is a statutory obligation of the acquiring government to pay solatium.
The Town Planning Act is a special statute where lands have to be acquired on large scale and as early and as quickly as possible so that schemes may be implemented with promptitude.
There is in addition a specific and purposeful provision excluding some sections of the 291 Kerala Land Acquisition Act.
In such circumstances it is incredible that the authority acting under the Act will sabotage chapter VII, in particular section 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms.
[299C D] Maganlal vs Municipal Corporation, [1975] 1 S.C.R. p. 23, referred to.
The amount of compensation payable has no bearing on the distinction whether the lands are acquired for housing or hospital, irrigation schemes or town improvement, school building or police station.
5(a) The exclusion of section 25 of the Land Acquisition Act from section 34 of the Act is unconstitutional.
But it is severable.
[302G] (b) The only discriminatory factor as between section 34 of the Act and section 25 of the Land Acquisition Act vis a vis quantification of compensation is the non payment of solatium in the former case because of the provisions of section 34(1) and that section 25 of the Land Acquisition Act shall have no application.
To achieve the virtue of equality and eliminate the vice of inequality what is needed is the obliteration of section 25 of the Land Acquisition Act from section 34(1) of the Town Planning Act.
The whole of section 34(1) does not have to be struck down.
Once the discriminatory and void part in section 34(1) of the Act is excised equality is restored.
The owner will then be entitled to the same compensation including solatium that he may be eligible under the Land Acquisition Act.
[303E F]
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<s>[INST] Summarize the judgementCivil Appeal No.4094 of 1984.
From the Judgment and order dated 9.7.1984 of the Punjab & Haryana High Court in Civil Writ Petition No.5371 of 1981.
P.P. Rao, Sr.
and Janendra lal for the appellants.
S.C. Gupta, Rajinder Sachhar, Sudarshan Goyal, Vivek Bhandari, S.C.Patel, mahabir Singh and C.M. Nayar (NP) for the Respondents.
The Judgment of the Court was delivered by K.RAMASWAMY, J.
The appellants and the proforma respondents, thirty in number are employed in the Punjab Service of Engineers, Class II.
The Governor, in exercise of the power under proviso to article 309 of the Constitution of India framed the Punjab Service of Engineers, Class I, P.W.D. (Road and Buildings) Rules.
1960 for short the Rules constituting the Punjab Service of 204 Engineers, Class I, P.W.D. (Roads and Buildings Branch), After the formation of State of Haryana w.e.f.
November 1, 1966, the rules are called Haryana Service of Engineers, Class I, P.W.D. (Roads and Buildings Branch).
The services consist of Asstt.
Executive Engineers, Executive Engineers, Superintending Engineers, and Chief Engineers, as may be specified by the Government of Haryana from time to time (Rule 3(1).
The recruitment to the service is made by the government as per Rule 5(1); (a) by direct recruitment; (b) by transfer from any other services of the State Govt.
or of the Union of India; and (c) by promotion from Haryana Engineers, Class II Service.
The appellants for short 'the promotees" from Class II Service were promoted as Executive Engineers by relaxing five years length of service as Class II Engineers in officiating capacity on various dates between January 6, 1969 to May 29, 1971, There of them, namely, A.N. Sehgal, Raj Kumar and H.C. Sethi were confirmed as Executive Engineers w.e.f. July 11, 1973, December 11, 1974 and December 9, 1975 respectively.
The rest are yet to be confirmed.
Raje Ram Sheoran was recruited and appointed directly as Asstt.
Executive Engineer w.e.f October 25, 1971.
He too was given relaxation of the length of service of five years as Asstt.
Executive Engineer and was promoted as Executive Engineer on October 8, 1973.
He was confirmed w.e.f. December 22, 1976.
All the appellants except M.R. Gupta were further promoted as Superintending Engineers on different dates between 1980 to 1984 and Mr. Sheoran was promoted as Superintending Engineer on March 4, 1987 A.N. Sehgal was further promoted as Chief Engineer, Equally Mr. Sheoran was also promoted as Chief Engineer but the validity was challenged and it is not necessary to refer any further as it is subject matter of proceedings in the High Court.
R.R. Sheoran who was shown junior to the appellants, field Writ Petition No. 5371/81 and sought a writ of mandamus directing the second respondent, State Government to consider his case for promotion as Superintending Engineer from the date on which the respondents were promoted; to quash the gradation list; to assign the seniority over the appellants and the consequential reliefs.
On reference, a Division Bench of the High Court by its judgement dated July 9, 1984 agreed with the ratio laid down in M.S. Mighlani vs State of haryana & Anr., [1983] 1 S.L.R. 421 and held that R.R. Sheoran was a member of the service from the date of his initial appointment as Asstt.
Executive Engineer and the appellants and the proforma respondents are not members of the service and directed the learned Single Judge to dispose of th matter on merit.
This appeal on leave arises against the judgement of the Division Bench.
205 The controversy centres round the inter se seniority of the appellants and R.R. Sheoran.
For its determination the Rules need interpretation.
The counsel for parties agreed that we should decide the principles on consideration of the Rules and leave the matter for the State Govt.
to determine the inter se seniority by applying the law, so for as the controversy relating to relaxation of the length of service is concerned it is set at rest by this Court in J.C. Yadav vs State of Haryana, and K.K. Khosla V. State of Haryana, [1990] 2 SCC 199 by a bench of three Judges to which one of us (K.N. Singh, J.) was a member.
The only question which survives is as to when `the appellants ' and `R.R. sheoran ' become members of the respective services.
Shri P.P.Rao, learned Senior Counsel for the appellants contends that the appellants were promoted as Executive Engineers against regular vacancies, which were neither a stop gap arrangement nor fortuitous, and they continued in service without any break from the respective dates of their promotion, therefore, they are members of the service in a substantive capacity as Executive Engineers from the respective dates of promotion.
He further argued that since Raje Ram Sheoran was recruited as Asstt.
Executive Engineer w.e.f. August 30, 1971 along after the promotion of the appellants upto B.L. Goyal, the appellants are senior to R.R. Sheoran as Executive Engineers.
Proviso to Rule 5(2) entitles them to remain in a substantive capacity as Executive Engineers since requisite number of qualified Asstt.
Executive Engineers were not available for promotion.
In view of their continous officiation as Executive Engineers in terms of Rule 2(12)(a) of the rules, they must be deemed to be the members of the service from the dates of promotion and, therefore, they are seniors to R.R.Sheoran .
M/s. Sachhar, learned counsel for the State and Gupta for R.R. Sheoran on the other hand contended that unless the appellants were appointed substantively to the cadre posts they could not be members of the service.
R.R. Sheoran became member of the service from the date of his initial appointment as Asstt.
Executive Engineer, therefore, he is senior to the appellants and proforma respondents and the High Court rightly interpreted rule 5(2).
Since the High Court did not enter into the merits of the respective claims of the appellants and Sheoran, we express no opinion on merits except, as agreed by the parties, we declare the law on the interpretation of the rules and leave it to the State Govt.
to decide the inter se seniority on merits.
It is necessary to have a look into the Rules regulating the 206 service.
Rule 3(1) postulates that the service shall comprise of Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers.
Rule 3(2) read with appendix `A ' enjoins the State of Haryana to determine the cadre strength of service each year.
Appendix `A ' lays down procedure to determine the cadre strength of service.
The senior posts include Executive Engineers and above while junior scale posts include Asst.
Executive Engineers .
Ex cadre posts also are contemplated in the respective senior posts and junior scale posts.
Rule 5(1)(a) posits recruitment to the service: (a) by direct recruitment; (b) by transfer and (c) by promotion from Class II service.
Sub rule (4) of Rule 5 says that all direct appointments to the service shall be to the post of Asstt.
Executive Engineer.
Proviso therein gives power to the government to appoint by direct recruitment as Executive Engineers, in exceptional circumstances, for reasons to be recorded in writing.
Rules 6 and 7 prescribe qualifications and method of appointment by direct recruitment .
Subrule (3) of Rule 7 states that appointment to the service shall be made according to the number of vacancies to be filled by direct recruitment strictly in the order of merit as indicated by the Public Service Commission.
As per Rule 11(1) and direct recruit shall remain on probation for a period of two years or extended period upto maximum of three years.
On satisfactory completion of probation, the government may confirm under clause (a) of sub rule (3) of Rule 11 or to discharge him from service otherwise.
The post of Asstt.
Executive Engineer is a junior scale post.
Under rule 12(3), they year of allotment of an Asstt.
Executive Engineer shall be the calendar year in which the order of appointment is issued by the government.
Rule 2(1) defines appointment to the service which includes an appointment made according to the terms and provisions of the rules to an officiating vacancy or to an ex cadre post provided that an officer so appointed shall not be deemed to have become a member of the service as defined in Clause (12) of Rule 2.
The Asstt.
Executive Engineer means a member of the service in the junior scale of pay, (Rule 2(2)).
Cadre post means permanent post in the service as per Rule 2(3).
`Class II Service ' means the Punjab Service of Engineers, Class II, in the Buildings and Roads Branch and includes, for purposes of promotion to and fixation of seniority in the Class I Service, Temporary Asstt.
engineers when a suitable Class II Officer is not available vide Rule 2(5).
Direct appointment means an appointment by open competition but does not include (a) an appointment made by promotion; (b) an appointment by transfer of an officer from the service of the State Government or of the Union, (Rule 2(7).
Ex cadre 207 post means a temporary post of the same rank as a cadre post vide Rule 2(10).
A member of the service means an officer appointed sub stantively to a cadre post and includes (a) in the case of a direct appointment an officer on probation, or such an officer who, having successfully completed his probation, awaits appointment to a cadre post vide Rule 2(12)(a).
A reading of the rules clearly indicates that an Asstt.
Executive Engineer appointment by open competition to a substantive vacancy in a cadre post and put on probation is a member of the service.
Equally such Asstt.
Executive Engineer recruited by open competition and appointment to an ex cadre post and put on probation and who having successfully completed his probation and awaits appointment to a cadre post would also become a member of the service.
The contention of Shri P.P.Rao is that an officer appointed substantively to a cadre post is a direct recruit and the inclusive definition encompasses within its ambit the promotee and the phase ``such an officer who having successfully completed his probation and awaits appointment to the cadre post ' ' is only referable to a promotee.
So promotee is also a member of the service from the date of initial promotion.
We may make it clear at this juncture that in normal service jurisprudence a direct recruit would always be recruited and appointed to a substantive vacancy and from the date he starts discharging the duty attached to the post he is a member of the service subject to his successfully completing the probation and declaration thereof at a later date and his appointment relates back to the date of initial appointment, subject to his being discharge from service on failure to complete the probation within or extended period or termination of the service according to rules.
Equally it is settle law that a promotee would have initial officiating promotion to a temporary vacancy or substantive vacancy and on successful completion and declaration of the probation, unless reverted to lower posts, he awaits appointment to a substantive vacancy.
Only on appointment to a substantive vacancy he become a member of the service.
But confirmation and appointment to a substantive vacancy always an inglorious uncertainty and would take unduly long time.
Therefore, the confirmation or appointment to a substantive capacity would not normally be a condition precedent to reckon the continuous length of service for the purpose of seniority.
On the facts of the case and the settled legal position, at first blush the argument of Shri P.P.Rao carried weight that the appellants would get their seniority from the respective dates of the initial promotion as Executive Engineers.
But we find that in the instant case the rules have made departure from the normal service jurisprudence as would 208 appear from the scheme under the rules.
Para 11(b) of appendix `A ' read with Rule 3(2), while determining the cadre strength of the service, adumbrates creation and appointment of Asstt.
Executive Engineers (direct recruit) to an ex cadre junior scale post in each year.
Therefore in a given situation, a direct recruit appointed to an ex cadre post, cannot be kept in lurch until he is appointed to a cadre post so as to become a member of the service.
Obviously to avoid such a hiatus, Rule 2(12)(a) was introduced.
The main part o Rule 2(12)(a) declares that an appointee substantively to a cadre post i.e., permanent post is a member of the service.
The inclusive definition brings an officer `by direct appointment on probation ' who having successfully completed probation and awaits appointment to a cadre post is also a member of the service.
Take for instance if direct recruitment is made to fill in five posts of Asstt.
Executive Engineers of which four are cadre posts and one ex cadre post and four persons are appointed to cadre posts in the order of merit and the last one to the ex cadre post.
The first four officers appointed on probation to the substantive vacancies and they are covered by the main part of Rule 2(12)(a).
The fifth one intended to cover the field of operation of the inclusive definition which says that `and also includes an officer directly appointed on probation ' `and such an officer who having successfully completed his probation, awaits appointment to a cadre post '.
The words `and such an officer ' `directly appointed ' would obviously referable to an Asstt.
Executive Engineer directly appointed to an ex cadre post; who may be placed on probation and awaits appointment to a cadre post.
By operation of the definition clause he also becomes the member of the service from the date of initial appointment.
This view is further fortified by the definition the `appointment to the service ' in Rule 2(1) which says that appointment to the service includes an appointment made according to the terms and provisions of these rules to an officiating vacancy or to an ex cadre post.
Rule 2(7) says that direct appointment means appointment by open competition but excludes `promotee ' or `transferee '.
So a promotee promoted to an officiating vacancy or on ex cadre post does not become member of the service unless he is appointed substantively to a cadre post.
We, therefore, hold that a direct recruit appointed to an ex cadre post alone is a member of the service even while on probation and Rule 2(12)(a) applies to them and it does not apply to promotee from Class II service.
An Asstt.
Executive Engineer, on putting five years of service under rule 9(3)(a) and passing the department examination as 209 required under rule (15), (unless the qualifications are relaxed in exercise of the power under rule (22) of the rules) becomes eligible for promotion as Executive Engineer.
The State Govt.
had relaxed the required length of five years service of the promotees as well as direct recruits.
R.R.Sheoran therefor became eligible to be considered for promotion.
As per the procedure prescribed in this regard under rule 9(2), he was found fit and suitable and was promoted as an Executive Engineer w.e.f. October 8, 1973.
Though M/s. Sachhar and Gupta contended that the direct recruit need not undergo the required probation ad Executive Engineer, we find no force in the contention.
The normal channel of appointment to the post of Executive Engineer, a senior post, is by way of promotion to which a direct recruit Asstt.
Executive Engineer is entitled to be considered.
On promotion he shall be on probation for a period of one year as per Rule 11(1)(a), but the period spent on officiation as Executive Engineer shall be taken into account for purposes of completing the period of probation and on its successful completion, he shall remain in service As Executive Engineer.
On a conjoint reading of Rule 12(3) and 12(5) it is clear that the year of allotment of the Asstt.
Executive engineer in the post of Executive Engineer, shall be the calendar year in which th order of appointment as Asstt.
Executive Engineer had been made.
Thus his seniority as Executive engineer, by fiction of law, would relate back to his date of initial appointment as Asstt.
Executive Engineer and in Juxta position to Class II officers ' seniority as Executive Engineer is unalterable.
The date of the seniority of Mr. R.R.Sheoran 1971.
The question then is what is the date from which the seniority of a promotee as Executive Engineer shall be reckoned? The contention of Shri P.P. Rao is that Rule 5(2) reserve 50% of the posts to the direct recruits but the proviso thereto makes a built in relaxation, namely, so long as the required number of direct recruits are not available to occupy those posts, the promotees are entitled to hold those posts also.
Admittedly except R.R. Sheoran no other direct recruit was available.
The promotees are eligible to occupy all the cadre posts even in excess of their quota.
The seniority has to be determined from the respective dates of initial officiating promotion.
Shri Rao ' further contention that the phrase `such an officer appointed to an officiating post ' has reference only to promotees cannot be accepted for the reasons given earlier.
The officer appointed directly is referable only to Asstt.
Executive Engineer and a promotee by operation of Rules 2(7) stands excluded until he is appointed substantively to a cadre post.
210 When an officer is appointed substantively to a cadre post, is the next question.
It is settled law that all the rules should be harmoniously construed giving life, force and effect to every part of the rule of clause or word so that no part would be rendered redundant, ineffectual, nugatory or otiose.
Rule 5(1) regulates recruitment to the service from three sources, namely, direct recruitment; by transfer and by promotion from Class II service.
Sub rule (2) thereof prescribes the ratio between the promotees and others.
It says that, "recruitment to the service shall be so regulated that the number of posts so filled by promotion from Class II service shall not exceed 50%" of the number of posts in the service excluding the posts of Asstt.
Executive Engineers; provided that till such time the adequate number of Asstt.
Executive Engineers who ar eligible and considered fit for promotion are available, the actual percentage of officers promoted from Class II service `may be larger than 50%.
A reading thereof clearly manifests the legislative animation, namely, that the promotees from Class II service shall not exceed 50% of the posts in the service.
The word `shall ' indicates that it is mandatory that the remaining 50% shall be kept open only to the Asstt.
Executive Engineers who were directly recruited but later were found eligible and fit for promotion as Executive Engineers.
Therefore, unless the government resorts exceptionally with prior permission of Public Service Commission, vide Rule 10 to recruitment by transfer of an officer from other service of the State Govt.
or of the Union, the remaining 50% of the posts as Executive Engineers, Superintending Engineers and Chief Engineers shall be occupied only by the direct recruit Asstt.
Executive Engineers.
It is settled law that prescription of quota for recruitment from different sources is constitutionally a valid rule.
Rule 5(2) limits 50% posts to the promotees from Class II Service and no further, but the proviso to the Rule lays down that till adequate number of Asstt.
Executive Engineers are available, the rigour of 50% quota may be relaxed and Class II officers may be promoted in excess of their quota.
What is the intendment of the class `the actual percentage of officers promoted from Class II service may be larger than 50% is the question.
The mandate of Rule 5(2) is that the officers promoted from Class II service shall in no case exceed 50% of the number of posts in the service.
Unless it is relaxed, the appointment and occupation of the posts by promotee in excess thereof is irregular or illegal and the government have no power to promote persons from Class II service to fill in such posts of Executive Engineers Superintending Engineers and Chief Engineers.
It is common knowledge that direct recruitment as Asstt.
Executive Engineers 211 or Executive Engineer; in exceptional circumstances is a tardy process and even after appointment they have to put in five years service.
The balance 50% of the posts cannot be kept vacant.
With a view to allow the wheels of the administration moving, the proviso carves out an exception and allows the promotees to occupy temporarily the posts in excess of their quota.
In this view the contention of Shri Rao that the seniority as Executive Engineer is to be counted from the date of initial temporary promotion cannot be accepted as it would allow the promotees to occupy 100% posts of Executive Engineers, Superintending Engineers and Chief Engineers leaving little room for Rule 5(2) (a) to operate in full force.
The exception would eat away the flesh and blood of Rule 5(2)(a) freezing the channel of promotion to the direct recruits to senior posts for a very long time to come.
In the absence of rule of rotation there may be no chance to a direct recruits to occupy the senior posts.
That does not appear to be the intendment, scope and operation of the proviso.
The intendment appears to be that so long as the direct recruit Asstt.
Executive Engineer, eligible and considered fit for promotion is not available, the promotee from Class II service in excess of the quota is eligible to occupy on officiating capacity the senior posts, i.e., Executive Engineers and above.
The moment direct recruits are available, they alone are entitled to occupy 50% of their quota and the promotees shall give place to the direct recruits.
It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision.
It carves out an exception to the main provision to which it has been enacted by the proviso and to no other.
The proper function of a proviso is to except and deal with a cause which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case.
Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.
The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule.
It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it he used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such 212 that it is its necessary effect.
In V.B. Badami, etc.
vs State of Mysore, [1976] 1SCR 815 dealing with the problem arising out of quota rule between promotees, this Court observed that: "In working out the quota rule, these principles are generally followed.
First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre.
Second, confirmed persons are senior to those who are officiating.
Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service.
Fourth, direct recruitment is possible only by competitive examination which is prescribed procedure under the rules.
In promotional vacancies, the promotion is either by selection or on the principle of seniority cum merit, a promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed.
Fifth, if promotions ar made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular.
The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota.
If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place the direct recruits will occupy vacancies within their quota.
Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case".
With a view to have efficient and dedicated services accountable to proper implementation of Govt.
policies, it is open, and is constitutionally permissible for the State, to infuse into the services, both talented fresh blood imbued with constitutional commitments, enthusiasm, drive and initiative by direct recruitment, blended with matured wealth of experience from the subordinate services.
It is permissible to constitute an integrated service of persons recruited from two or more sources, namely, direct recruitment, promotion from subordinate 213 service or transfer from other services, Promotee from subordinate generally would get few chances of promotion to higher echolans of services.
Avenues and facilities for promotion to the higher services to the less privileged members of the subordinate service would inculcate in them dedication to excel their latent capabilities to man the cadre posts.
Talent is not the privilege of few but equal avenues made available would explore common man 's capabilities overcoming environmental adversity and open up full opportunities to develop one 's capabilities to shoulder higher responsibilities without succumbing to despondence.
Equally talented young men/women of great promise would enter into service by direct recruitment when chances of promotions are attractive.
The aspiration to reach higher echolans of service would thus enthuse a member to dedicate honestly and diligently to exhibit competence, straightforwardness with missionary zeal exercising effective control and supervision in the implementation of the programmes.
The chances of promotion would also enable a promotee to imbue involvement in the performance of the duties; obviate frustration and eliminate proclivity to corrupt practices, lest one would tend to become corrupt, sloven and mediocre and a dead wood.
In other words, equal opportunity would harness the human resources to augment the efficiency of the service and under emphasis on either would upset the scales of equality germinating the seeds of degeneration.
With a view to achieve this objective, the rule making authority envisaged to appoint direct recruits as well as by promotion from Class II Service, otherwise by transfer from other services.
In interpreting the rules, effect must be given to allow everyone drawn from these sources to have their due share in the service and chances of involvement of effectively discharge the duties of the posts honestly and efficiently with dedication.
Any wanton or deliberate deviation in the implementation of the rules should be curbed and snubbed and the rules must be strictly implemented to achieve the above purpose.
If wanton deviations are allowed to be repeated, it would breed indiscipline among the service and amounts to undue favour to some and denial of equality for many for reasons known or unknown subverting the purpose of the rules.
It is settled law that appointment to a post in accordance with the rules is condition precedent and no one can claim appointment to a post or promotion, as of right, but has a right to be considered in accordance with the rules.
Appointment by promotion or direct recruitment, therefore, must be in accordance with the rules so as to 214 become a member of the service in a substantive capacity.
Seniority is to be fixed in accordance with the principles laid down in the rules.
Rule 8 prescribes procedure for appointment by promotion from Class II services.
Rule 9(2) states that promotion would be made by selection on the basis of merit and suitability in all respect and no member of the service shall have any claim, to such promotion as a matter of right by mere seniority.
The committee as constituted under Rule 8 shall prepare the list of officers considered fit for promotion in the order of merit and on approval by the public Service Commission, the State Govt.
shall appoint the persons from the list in the order in which the names have been placed by the Commission, Appointment by promotion may be made under Rule 8(12) to an excadre post or to any post in the cadre in an officiating capacity from the list prepared as aforesaid.
On promotion, as per Rule 11(1), officer shall be on probation for a period of one year, but if the officer had been officiating as an Executive Engineer the period of officiation would be counted towards probation.
Rule 11(4) provides the on satisfactory completion of the probationary period, the Govt.
confirms the officiating promotee and "appoint him in a substantive capacity on a cadre post provided the post is available to him".
If no cadre post is available, the officer has to wait for an appointment to the cadre post.
A promotee within quota under rule 5(2) gets his seniority from the initial date of his promotion and the year of allotment, as contemplated in Rule 12(6) shall be the next below "the junior most officer in the service whether officiating or confirmed as Executive Engineer before the former 's appointment ' counting the entire officiating period towards seniority, unless there is break in the service or from the date of later promotion.
Such promotee, by necessary implication, would normally become senior to the direct recruit promoted later.
Combined operation of sub rules (3) to (5) of Rule 12 makes the direct recruit a member of the service of Executive Engineer from the date of year of allotment as an Asstt.
Executive Engineer.
The result is that the promotee occupying the posts within 50% quota of the direct recruits, acquired no right to the post and should yield to direct recruit though promoted later to him, to the senior scale posts i.e., Executive Engineer, Superintending Engineer and Chief Engineer.
The promotee has right to confirmation in the cadre post as per Rule 11(4) if a post is available to him within his quota or at a later date under rule 5(2) read with 11(4) and gets appointment under section 8(11).
His seniority would be reckoned only from the date of the date of the availability of the post and the year of allotment, he shall be next below to his immediate 215 senior promotee of that year or the junior most of the previous year of allotment whether officiating or permanent occupying the post within 50% quota.
The officiating period of the promotee between the dates of initial promotion and the date of the availability of the cadre post would thus be rendered fortuitous and stands excluded.
A direct recruit on promotion within his quota, though later to the promotee is interposed in between the periods and interjects the promotee 's seniority; shaps the links in the chain of continuity and steals a march over the approved promotee probationer.
Harmonious construction of rule 2(1), 2(3), 2(7), 2(10), 2(12),(a) 5(2)(a), 8,9(2), 11, 12(3), 12(5) to 12(7) would yield to the above result, lest the legislative animation would be defeated and the rules would be rendered otiose and surpluses.
It would also adversely effect the morale and efficiency of the service.
Mere officiating appointment by promotion to a cadre post outside the quota; continuous officiation therein and declaration of probation would not clothe the promotee with any right to claim seniority over the direct recruits.
The necessary conclusion would, therefore, be that the direct recruit shall get his seniority with effect from the date of the year of the allotment as Asstt.
Executive Engineer which is not alterable.
Whereas the promotee would get his seniority w.e.f.
the date of the availability of the posts within 50% quota of the promotees.
The year of allotment is variable and the seniority shall be reckoned accordingly.
Appointment to the cadre post substantively and confirmation thereof shall be made under rule 8(11) read with Rule 11(4) of the rules.
A promotee Executive Engineer would only then become member of the service, `Appointed substantively ' within the meaning of Rule 2(12) (a) shall be construed accordingly.
We, further hold that the seniority of the promotee from Class II service as Executive Engineer shall be determined with effect from the date of which the cadre post was available to him and the seniority shall be determined accordingly.
In K.C.Joshi & Ors. etc.
vs Union of India & Ors., [1990]2 Scale 951 a Bench of three Judges to which one of us (K. Ramaswamy, J.) was a member, considered similar question.
In that case U.P. Forest Service Rules, 1952 provides, two sources of recruitment to the post of Asstt.
Conservators of Forest.
The petitioners therein were Forest Range Officers in U.P. Forest Subordinate Service.
The respondents were direct recruits as Asstt.
Conservators of Forest.
The rules prescribed ratio between direct recruits and promotees.
Due to delay in recruitment as Asstt.
Conservators of Forest, the Forest Rangers were promoted in excess of their quota as Asstt.
Conservators of Forest temporarily and continued in service without any break for 5 to 12 216 years.
The promotees claimed seniority from the date of their initial promotion.
Considering the scope of the rules and rights acquired by the petitioners therein and the direct recruits, the Court held that: "When promotion was outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the pervious service fortuitous.
The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation.
In order to do justice to the promotees it would not be proper to do injustice to the direct recruits.
The rule of quota being a statutory one must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies of expediency.
The result of punishing down the promotees appointed in excess of the quota may work hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend articles 14 & 16(1).
Therefore, the rules must be carefully applied in such a manner as not to violate the rules or equality assured under article 14 of the Constitution.
This Court interpreted that equity is an integral part of article 14.
So every attempt would be made to minimise, as far as possible inequity.
Disparity is inherent in the system of working out integration of the employees drawn from different sources, who have legitimate aspiration to reach higher echolans of service.
A feeling of hardship to one, or heart burning to either would be avoided.
At the same time equality is accorded to all the employees".
Shri P.P. Rao urged that the cadre posts in Rule 2(12) must include not only the permanent posts but also temporary posts continued for more than three years and notional posts which may have existed for short spells during preceding three years taking into account the number of months and days for which each post had existed as per the formula prescribed in appendix `A ' read with Rule 3 of the rules.
He further urged that the promotees appointed to such posts should be treated to be `members of the service ' interms of Rule 2(12)(a) and that their promotion should be retrospectively declared to have been promoted w.e.f.
the dates on which the posts were created.
We are unable to accept this contention.
Rule 3 read with 217 appendix `A ' confers power and also imposes duty on the State Govt.
to determine the cadre posts from time to time and in the first five years on the first day of each year.
This exercise should be done in the light of the criteria prescribed in appendix `A '.
The present controversy does not concern itself with the method and manner of determination of th cadre posts, though determination of seniority hinge upon it.
Therefore, for determining seniority, the State Govt.
should undertake the exercise interms of Rule 3 read with appendix `A '.
The rules postulate that substantive appointment to a cadre post is a condition precedent to become a member of the service.
A class II officer shall be promoted to a temporary post or in an officiating capacity to a cadre post if vacancy exist ' when he occupies a vacancy in a substantive post and continued uninterruptedly it would be open to the appointing authority to put the promotee Executive Engineer on probation.
Though confirmation is an inglorious uncertainty depending neither on the efficiency of the officer nor generally on the availability of the post, the mandate of Quota of 50% in Rule 5(2) should be adhered to.
Declaration of probation and confirmation to a cadre post, if available, under Rule 11(4) shall be made.
Seniority of such approved or confirmed promotee should be counted from the date of either initial officiating promotion of continous later officiation from the date of availability of the cadre post, however, should be next below his senior promotee or the junior most of the preceding year of allotment within the quota.
If no post is available till such date of the availability, the entire period of continuous officiation would be rendered fortuitous.
The contention, therefore, that the promotion would relate back retrospectively to the date of creation of the post and the appointment to the vacancy shall be with reference to the date of the creation of the post, would result anomalies and render Rule 5(2) to the direct recruits surplusage.
Shri P.P. Rao 's further contention that the de facto promotion and the retrospective declaration of cadre post would make the Class II officers as de jure members of the service from the very date of temporary appointment w.e.f.
the date of initial appointment also lacks force for the same reasons.
The principles laid down in R.P. Khanna vs S.A.F. Abbas & Ors., [1973]3 SCR. 548 at 557 C J .
is not applicable to the facts of this case.
In that case the certain posts in State services were required to be declared as senior cadre posts in the All India Service, but before such declaration could be made some of the promotee officers officiated in the senior cadre post.
In that context the Court observed that 1the promotee could not get the benefit of officiation unless the post was declared a equivalent to a senior cadre 218 post before the promotee was appointed; to officiate him would defeat the policy of the government ' and held that they are entitled to the benefit of the retrospective declaration `in the absence of things practical as well as reasonable.
The scheme of the rules made a definite departure to the normal service jurisprudence and the operation of the scheme in the rules must be given full effect.
In the instant case under the Rules `determination of seniority would be ' made only after the promotee becomes a member of the service.
Therefore, the year of allotment must be determined having regard to (i) availability of the cadre post within quota; (ii) satisfactory completion of the probation; and (iii) appointment to the post in the substantive capacity in term of Rules 12(6) and (7) read with 11(4) and Rule 8(12).
Any other construction would be contrary to the avowed object of the rules as a whole.
The inclusive definition of Rule 2(12) (a) must be interpreted liberally and not restrictively.
Undoubtedly the inclusive definition always receives liberal interpretation to bring within its ambit cognate but unforeseen similes.
But the rules envisage only three sources of recruitment, namely, direct recruitment, appointment by promotion and in exceptional cases with prior approval of the Public Service Commission as per Rule 10, the appointment by transfer from other services of the State or Central Govt.
Until the ex cadre posts are declared to be cadre posts they remain ex cadre posts.
The promotion to the ex cadre post is temporary or to a cadre post could be only on officiating basis.
It may be open to the government to abolish at any time the ex cadre posts.
Determination of cadre strength is a condition precedent for Rule 5(2)(a) to operate.
Till a promotee is confirmed in a substantive capacity as Executive Engineer, he continues to retain line in Class II service.
The interpretation that the promotion to the temporary post or ex cadre post within the meaning of Rule 2(10) should also be deemed to be an appointment to a substantive post would do violence to the language of the relevant rules and the scheme.
It is true that this Court in Baleshwar Dass & Ors.
vs State of U.P. & Ors.
, [1981] 1 SCR 449 at 463 held that there cannot be probation for a government servant who is not to be absorbed substantively in the service on completion.
The ratio therein does not apply to the facts of this case for the reason that the Govt.
itself did not understand the scope and operation of the rules properly as is amply demonstrated from their mutually irreconcilable inconsistent stand taken in the counter affidavits filed by the State Govt.
in the High Court and in this Court.
That apart, it would appear that in the instant case after the formation of the State of Haryana, adequate number of officers were 219 not available to hold the posts.
The length of service and passing of prescribed tests were relaxed enmass.
In view of the above peculiar and special facts merely because the promotee Class II Officers were put on probation and the same was declared it does not clothe them with any right to deemed appointment to substantive vacancies in excess of their quota with retrospective effect from the date of initial promotion to the cadre posts.
The year of allotment of a direct recruit is always the year in which he is appointed to the junior scale post of Asstt.
Executive Engineer but the year of allotment to the promotee is variable depending on the availability of the cadre post within quota of 50% and subject to taking the seniority next below the junior most promotee of the preceding year of allotment or immediate senior of the same year.
If the contention of Shri P.P. Rao is accepted is accepted it would render Rule 8(11) mutually inconsistent with Rule 5(2w) read with Rules 2(7) and 2(12) and Rule 2(1).
No countenance could be given to the contention that the officers put on probation in terms of Rule 11(1) irrespective whether they occupied declared posts, but also posts which ought to have been declared as such from time to time and have continuously remained in service entitle them to become member of service and that, as and when the posts occupied by them are declared as cadre posts with retrospective effect, they are entitled to be treated as members of the service w.e.f.
the due dates.
In other words it amounts to put a premium on the inaction on the part of the State Govt.
to declare the cadre posts in terms of Rule 3(2) read with appendix `A ' defeating the scheme of the Rules.
The contention that our interpretation renders Rule 2(12) arbitrary and discriminatory violating articles 14 and 16 is also not tenable.
A direct recruit, by operation of Rule 2(12) (a) read with Rules 2(1) and 2(10), though appointed to an ex cadre post, by fiction of law, becomes a member of the service from the date of his initial appointment since being a fresh recruit.
On his satisfactory completion of the prohibition and on availability of the cadre post as Asstt.
Executive Engineer, he becomes a confirmed Asstt.
Executive Engineer.
While a promotee Executive Engineer continues to retain his line on the posts as Class II officers still he is appointed substantively to Class I service.
There is reasonable classification and discernable distinction drawn between the direct recruit and the promotee.
The nexus is to treat direct recruit Asstt.
Executive Engineer appointed to the cadre posts as well as ex cadre post at par as members of the service and the deeming clause is to serve this purpose.
Thus, there is nether invidious discrimination nor arbitrariness in Rule 2(12)(a) offending articles 12 & 16.
The differentiation drawn between direct recruit and the 220 promotee bears rational relation to the object of Rule 2(12), the ratio of the Constitution Bench in B.S. Yadav vs State of Haryana, and The Direct Recruit, Class II Engineering Officers ' Association vs State of Maharashtra & Ors., ; at 745 cannot be imported bodily and applies to the ficts of the case in the light of the operation of the rules in question.
The further contention that Rule 12 adumbrates that not only a member of the service, but even an officer officiating as an Executive Engineer before becoming a member of the service is entitled to an year of allotment because the rules nowhere say that only members of service are entitled to year of allotment is devoid of substance.
As already discussed a promotee cannot be given year of allotment, before he becomes a member of the service and his seniority cannot be fixed arbitrarily with reference to the date of his initial promotion to an ex cadre post or continuous officiating in a cadre post without break, as the case may be.
We accordingly, direct the Government of Haryana to determine the cadre posts, if not already done, regularly from time to time including the post created due to exigencies of service in terms of Rule 3(2) read with appendix `A ' and allot the posts ineach year of allotment as contemplated under rule 12 read with Rule 5(2)(a) and issue orders appointing substantively to the respective posts within the quota and determine the inter se seniority between the appellants promotees and R.R. Sheoran, direct recruits in the respective quota cadre posts of Executive Engineers etc.
within four months from the date of receipt of this judgment.
The inter se seniority of promotees and direct recruits shall be determined accordingly.
All the inpugned promotions or those pending proceedings in the High Court or in this Court shall be subject to the above determination and the status quo would continue till the appointments according to the rules are made and seniority is determined in the light of the law declared inthis judgment.
The appeals is disposed of accordingly.
In the circumstances parties are directed to bear their respective costs.
[/INST]For the academic year 1983 84, there was a vacancy for the post of Lecturer in Sanskrit, in the College managed by the appellant Trust.
The said post was reserved for candidate from backward classes.
The first Respondent, not belonging to any backward class, applied for the post, even before the appellant Trust issued an advertisement.
An advertisement was issued later without mentioning the academic year for which the appointment was to be made, though admittedly it was for the academic year 1983 84.
The advertisement specifically stated that the post was reserved for a backward class candidate and if no such candidate was available, a candidate from the non backward classes may be appointed for one year.
Within a month, the advertisement was repeated and yet no application was received from any candidate from backward classes.
Hence the appellant trust appointed the First Respondent, who had earlier applied, from 19.3.84 till 30.4.1984.
Again, an advertisement was issued in 1984 for the academic year 1984 85.
And there was no response from any candidate belonging to backward classes.
The First Respondent was interviewed and appointed for one year, till 19.4.1985.
For the academic year 1985 86, no advertisement was issued.
The First Respondent was again appointment to the said post from July 10, 1985 to April 30, 1986.
Thereafter her services were terminated after issue of notice.
No appointment was made to the said post for the academic year 1986 87.
However, on 1.5.1987, an advertisement was issued inviting applications for the said post from candidates belonging to all classes, 283 dereserving the post.
Respondents 1 and 5 and another candidate, all belonging to non backward classes applied.
The 5th Respondent was selected and appointed to the said post.
Thereafter, in respect of non payment of salary for certain period and for setting aside her termination order, the First Respondent approached the College Tribunal.
The Tribunal allowed her claim for salary for the relevant periods, but dismissed her claim for reinstatement, holding that her appointment was purely temporary and her claim that she should be deemed to have been confirmed because she had served for two academic years was not established in the circumstances of the case.
Against the Tribunal 's decision, the First Respondent approached the High Court by way of a Writ Petition.
The High Court allowed the Writ Petition holding that notwithstanding the break in her actual appointment, she was continuously in employment from March 19, 1984 to April 30, 1986, and hence entitled to the benefit of the resolutions of the State Government and the University directions which, according to the High Court, laid down that an employee who was appointed for two consecutive academic years must be deemed to have been on probation right from the time of the first appointment and, therefore, she should be confirmed in the post.
The benefit of full back wages, seniority etc.
was also ordered.
Aggrieved by the Judgment of the High Court, the appellants preferred the present appeal, by special leave.
Allowing the appeal, this Court, HELD: 1.
The appellant Trust had violated the directions of the Government as well as of the University in the appointments in question as a result of which neither the appointment of the 1st respondent nor that of the 5th respondent can be said to have been validly made.
Both the appointments were made without following the Government Resolutions and the University directions in the matter of reservation of seats for backward classes which are binding on the college.
Unfortunately, these aspects of the matter which are evident from the record were lost sight of both by the Tribunal and the High Court.
[287G H;288A] 2.1.
Admittedly, the selection of the 5th respondent was made by a committee where neither the nominee of the Vice Chancellor nor the expert nominated by the University nor the nominee of the Director of 284 Education (Higher Education), i.e., the Director of Ayurveda, was present.
The selection so made was, therefore, not valid.
[289F] 2.2 There is nothing on record to show that when the appellant Trust forwarded its report on appointment of the 5th respondent, it apprised the University of the absence of the expert at the time of his selection.
The University has not reserved the power to relax the rule and permit selection without the presence of the expert.
There is nothing in the University 's letter to show why the University had condoned the absence of the expert.
The approval given by the University being in ignorance of the true state of affairs and in breach of the rule, is legally ineffective and cannot validate the appointment.
[289H,290A B] 3.
Admittedly, the post was reserved for the academic year 1983 84.
The Trust had not given three advertisements within six months for any of the academic years 1983 84, 1984 85 and 1985 86.
On the other hand, for the academic year 1983 84, it issued only two advertisements.
It is not known as to why even these two advertisements were not issued at the beginning of the said academic year.
As regards the second academic year 1984 85, it issued only one advertisement, and no advertisement was issued for the academic year 1985 86.
The initial appointment of the Ist respondent for the academic year 1983 84 and her continuation for the subsequent academic years, viz., 1984 85 and 1985 86 was thus in breach of the Government resolutions and the University direction and, therefore, illegal.
Similarly, since the appointment of the 5th respondent was made without following the procedure prior to dereservation, viz., three advertisements repeated every year for all the three academic years for which the post was to be reserved, his appointment to the post, as if the post stood legally dereserved, was also illegal since the post could not have been dereserved to make it available for a non backward class candidate.[294B E] 4.
Even assuming that her initial appointment and subsequent continuation of service was valid, the First Respondent would not be entitled to the benefit of the University direction of March 11, 1987 because her entitlement to the vacation salary does not extend her period of employment up to the end of the vacation.
That is a perquisite which is conferred on every teacher who has served during the academic year.
It has no connection with the continuation of the employment since even those teachers whose services are validly terminated before the beginning of the vacation period are given the benefit of the salary of the vacation period.
[295E F] 285 5.
The appellant Trust shall advertise the post three times sufficiently in advance and in any case within six months from the close of the present academic year, viz., 1990 1991 as a post reserved for the backward class candidate, and if no application is received from a suitable backward class candidate, the post will be deemed to have been dereserved.
The Trust will then proceed to fill in the same by a candidate belonging to non backward classes.
This fact may be made clear in all the three advertisements.
The 5th respondent will be entitled to apply for the post notwithstanding the fact that he has become overaged.
If he is selected on the basis of his other qualifications, the Selection Committee shall relax in his favour the condition with regard to the maximum age.
If he is appointed to the post, his appointment will be a fresh one and his past service will not count for the probation period.
The Trust shall constitute a proper Selection Committee according to the rules.
[296D F] 6.
To overcome the hardship to the students, the 5th respondent may be permitted to teach as a purely temporary teacher till the process is completed for the academic year 1991 92.
[297C]
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<s>[INST] Summarize the judgementAppeal No. 2854 of 1993.
From the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No. 534 of 1990.
S.D. Bajaj, and P. Mahale for the Appellants.
Ms. Kiran Suri for the Respondent.
The Judgment of the Court was delivered by VENKATACHALA, J.
We grant Special Leave.
Since we heard learned counsel for parties on the merits of the appeal.
we are finally deciding it.
An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands comprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol Taluk of Dharwad District.
They are the disputed lands in this appeal.
The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act.
Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant 1 and father of appellant 2, for their personal cultivation.
With the coming into force on 25th January, 1951 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, known s the Watan (Abolition) Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans.
But, there was a right conferred under the Watan Act on every Watandar the holder of the 782 Watan land, to obtain its regrant subject to payment of occupancy price.
After the resumption of the disputed lands by the State of Bombay under the Watan (Abolition) Act, Basappa Bheemappa, claiming to be their former holder applied for the irregrant before the Assistant Commissioner.
Savannah, as by then, Dharwad District where the disputed lands were located, had come to Karnataka State from Bombay State by reason of the reorganisation of States under the .
Thereafter, by his Order dated 30th November, 1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands (resumed Watan lands) in favour of their former Watandar, Basappa Bheemappa.
The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 (the BT & Al, Act) from the time Bassppa Bheemappa as their Watandar, had leased them in favour of appellant 1 and father of appellant 2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan (Abolition) Act, did not entitle him to obtain possession of them except under the BT & AL, Act.
Although, the Karnataka Land Reforms Act, 1961 (the KLR Act) which came into force in Karnataka on 2.10.1965, repealed by its section 141 the Watan (Abolition) Act and by its section 143 the BT & A L Act, 1948, nothing thereunder adversely affected the rights of the appellants ' tenancy in the disputed lands.
However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants (the appellant 1 and father of appellant 2 on 3 1st March, 1969 under a registered sale deed.
The land Tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord regrade, Basappa Bheemappa.
But, on 8th December, 1976, the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa (the seller of the disputed lands) and two other brothers arraying them as defendants 1 to 3.
That was a suit for partition of 1/4th share in the disputed lands and putting him ink separate possession of that share.
His claim for partition and separate possession of `his share in the disputed lands was based on the plea that the sale deed dated 31st March, 1969 by which defendant 1, his eldest brother, had sold the disputed lands (joint family lands) in favour of the tenants, without the prior consent of his brothers and for no legal necessity of the family, was void ab initio.
The impleaded in that suit appellants 1 and 2 as defendants 4 and 5, since they were in possession of the disputed lands.
Defendants 1, 4 and 5, resisted the plaintiff 's claim for 783 partition and separate possession of his 1/4th share in the disputed lands urging, inter alia, that he had no right to get any share in them.
After trial of the suit, the Munsiff Court ranted a decree in favour of the respondent.
That decree of the Munsiff Court was based on its findings (i) that the disputed lands were Hindu joint family properties of the plaintiff and defendants 1 to 3; (ii) that the sale of the disputed lands in favour of defendant 4 and father of defendant 5 had since been made by defendant 1 without the consent of his brothers, the plaintiff and defendants 2 and 3 and without legal necessity of the family, the same was void ab initio; (iii) that the plea of defendants 1, 4 and 5 that the tenancy revived, if the sale by defendant 1 in favour of defendant 4 and father of defendant 5 was found to be vs ' d, was unacceptable ', and (iv) that the sale by defendant ] in favour of defendant 4 and father of defendant 5 of the disputed lands was also void since sale of them (Fragments) was prohibited under the provision.
1 of the Karnataka (Prevention of Fragmentation and Consolidation of Holdings) Act, 1966 the Karnataka Prevention of Fragmentation Act.
However, defendants 4 and 5 challenged the correctness of the decree of the Munsiff Court, by filing an appeal before the Court of the Civil Judge at Hubli.
In that appeal, the Court of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which defendants had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant 1 and claim his share in the disputed lands.
Accordingly, it dismissed the appeal.
A Regular Second Appeal filed by defendants 4and 5 before the High Court of Karnataka against the decree of the Civil Judge 's Court affirming the decree of the Munsiff 's Court, was dismissed in limine.
It is those decrees which are impugnned by defendants 4 and 5 in the present appeal by Special Leave.
Shri Padmanabha Mahale, the learned counsel for the appellants, contended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when, according to them, sale of the disputed lands by defendant 1 in favour of defendants 4 and 5 (appellants 1 and 2) was ab initio void either (i) because the sale was of the joint family lands effected by the eldest brother in the family without the consent of the other brothers and for no legal necessity, or (ii) because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act.
Had it been so held, it was argued, there would not have been scope for the 784 Munsiff Court to have made a decree in favour of the respondent for partition of his 1/4th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits, and that decree to have been affirmed by the Appellate Court.
On the other hand, Mrs, Kiran Surj, the learned counsel for the respondent, submitted that the tenancy or lease hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant 1 on 31st March, 1969.
That sale, when was found to be void by the Courts below, such finding did not have the effect of reviving the marked tenancy of the appellants, as would restore their tenancy rights in the disputed lands.
This appeal was, therefore, liable to be dismissed.
The Court of Munsiff the Trial Court and the Court of Civil Judge the First Appellant Court, have recorded a concurrent finding that the sale by defendant 1 in favour of defendant 4 and father of defendant 5 of the disputed lands by registered sale deed dated 3 1 st March, 1969, was void ab initio that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act.
Besides, the Trial Court has recorded a finding that the said sale deed was void, on its view that the 3/4th share of the plaintiff and defendants 2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant 1 without their consent and when there was no legal necessity of the family for such sale.
The Trial Court has accordingly, made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court, because of the said findings recorded by them.
The Second Appeal filed before the High Court by defendants 4 and 5, has been dismissed in limine.
That the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act, as is held by the Court of Munsiff and also the Court of Civil Judge, the consequence contained in sub section (3) of section 39 of that Act should have followed, that is "Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to 785 be in the possession of the person lawfully entitled to such possession".
In the instant case, the tenants on the lands (defendants 4 and 5) being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof, the Court below ought to have seen that the partition decree sought for by the plaintiff (respondent here) could have been ranted in respect of such tenanted lands, only if the same was permissible in law, and not otherwise.
The other finding of the Courts below is, that the sale deed dated 31st March, 1969 was void because defendant 1 could not have sold the undivided interest of his brothers the plaintiff (respondent here) and defendants 2 and 3 in the disputed lands, being their joint family properties, without their consent and without the legal necessity of the family.
If that be so, defendant 1 had to be regarded as having sold in favour of defendant 4 and father of defendant 5 under sale deed dated 31st March, 1969 only his 1/4th undivided interest in the disputed lands and not.
3/4th of the undivided interest of the plaintiff and defendants 2 and 3.
That means that the lessors ' entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969.
From this, it following that the lease hold interests of defendant 4 and father of defendant 5 in the disputed lands and lessors ' entire reversion could not have merged in one and some person.
so as to constitute merger envisaged under section 111 (d) of the , in that, for constituting merger under that provision, the interests of the lessee and the interests of the lessor in the whole of the property.
had to vest at the same time in one person in the same right.
Thus, on the basis of the finding of the Courts below, if it has to be held that defendant 1 had not sold the undivided interest of the plaintiff and defendants 2 and 3 in the disputed lands to the extent of their 3/4th share there could not have been any merger of tenancy rights of defendant 4 and father of defendant 5 in the disputed lands with that of lessors (landlords) whole rights.
If so, tenancy rights of the appellants in the disputed lands ought to be regarded as not affected or disturbed by the sale deed of 31st March, 1969.
Hence, consideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands, is unnecessary In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol, Dharwad 786 District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing, the question whether the plaintiff would be entitled to the decree sought for in the suit, if the disputed lands had continued as tenanted lands, as found by us.
No costs.
U.R. Appeal allowed.
[/INST]There were two parallel Services of Engineers in the Indian Railways.
One was the Indian Railways Service of Engineers (Class (I) who were subjected to competitive written and personality tests and appointed by the President of India.
The other Service was the temporary Assistant Engineers (later known as Temporary Assistant Officers) appointed by the Railway Board, on selection based (on interview alone.
In addition to the minimum educational qualifications which was the same for both the services three years experience as Civil Engineer was required for the Railway Service of Engineers.
The temporary Assistant Officers were gradually absorbed into the Indian Railway Service of Engineers and the Railway Board took a decision that they would be given weightage in seniority on the basis of half the total length of continuous service in working posts in Railways prior to their permanent absorption into Class I subject to a maximum weightage of five years.
Writ Petitions were filed in this Court by the Federation of Temporary Officers Association in a representative capacity seeking relief in their seniority status.
This Court dismissed the Writ Petitions holding that the classification of temporary, Assistant Officers separate from the Indian Railway Service 1019 Engineers Class I, was neither discriminatory nor violative of Articles 14 and 16 of the Constitution; and that the object of recruitment, methods of recruitment, appointing authority and training imparted being different, no question of their entitlement to equal rights arose fill they were absorbed into the Indian Railway Service of Engineers Class 1.
This Court also approved ,the measures of the Railway Board in regard to giving weightage of half the length of service as temporary Assistant Officers subject to a maximum of five years.
Their claim for equal status for equal pay and equal work was also rejected.
(Katyani Dayal & Ors.
vs U.0.1.
; In the present Writ Petitions and Civil Appeals filed in a representative capacity, the relief claimed were on the same lines as in Katyani Dayal,s case.
As directed by this Court the affected parties were impleaded in their representative capacity, so that the decision of this.
Court would he binding on every member of both the classes of employees.
On behalf of the Petitioners/Appellants, it was contended that equal pay for equal work with equality in all other conditions of service including avenues of confirmation, absorption, promotion, pension and security have become inflexible postulates of service jurisprudence.
The respondents contended that what was being asked was a virtual review of Katyani Dayal 's case which could not be permitted.
It was also contended that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal 's case if not the strict principles of res judicata ; and that when the matter has been settled in this particular service, its unsettling by means of a petition under Article 32 of the Constitution was impermissible.
Dismissing the matters, this Court HELD: 1.
The distinction between the two services was well marked in Katyani Dayal 's case and the important question of equality was once for all settled.
To find fault with it, at this juncture again on the touch stone of equality dimension would be to unsettle a settled position.
That venture is neither in the interest of justice nor in the interest of service.
When there has been complete absorption of the personnel of one service into the other, and the seniority of the absorbers is to he reckoned from their date of absorption as stipulated in their appointment letters with weightage of half the length of 1020 service subject to a maximum (of give years, it would otherwise be imprudent now.
at this point of time to dig up old issues, The rule or weightage also appears to be reasonable and this is a pattern which has been noticed and approved In many a Service.
Similarly when the dispute raised between the Officers in a representative capacity and Engineers riot so represented, still it was a dispute raised before this Court which has been decided finally.
(1026 B D) Katyani Dayal Ors.
vs Union of India & Ors,[1980] 3 SCR 139 referred to.
The dispute now sought to he raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineer.% across also in a representative capacity is barred by principles of res judicata as also by the rule of Constructive res judicata.
(1026 D E) 3.
It cannot he said that the State is prohibited from creating separate channels of service.
Equally when absorption had been made possible and its pace quickened with weight age, it is difficult to find fault with the scheme at this point of time to look for a substitution, as that would unsettle a settled position, established more than a decade ago.
(1026 E F) Direct Recruit Class II Engineering Officers Association vs State of Maharashtra & Others ; , followed.
Raghunandan Prasad Singh vs Secretary, Home (Police) Department Government of Bihar and Ors. & Dr. O.Z Hussain vs Union of India,[1990] Supp.
SCC 688, referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 3031 of 1987.
From the Judgment and order dated 9.7.1985 of the Karnataka High Court in Writ Petition No. 31533 of 1982 12 S.S. Javali, Ravi P. Wadhwani, M.Rangaswamy, N.D.B. Raju, C. K .
Sucharita and Mrs. C.K. Sucharita for the Appellant K.L. Sharma and M. Veerappa for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
Aggrieved by the levy of additional tax under section 8 of the Karnataka Motor Vehicles Taxation Act, 1957 (hereinafter referred to as 'the Act ') in respect of his motor vehicle, which he has been running as a stage carriage under a permit issued under the provisions of the , the appellant herein questioned the levy of the said additional tax before the High Court of Karnataka in Writ Petition No. 31533 of 1982.
That writ petition was dismissed by the High Court following an earlier decision of a Division Bench of that Court in Noorullha Khan vs State of Karnataka (Writ Petition No. 8302 of 1980 and connected cases decided on 26.6.1985).
The appellant has filed this appeal by special leave against the decision of the High Court dismissing his writ petition The facts of the case are briefly these.
The appellant is the registered owner of the motor vehicle which he has been running as a stage carriage under a permit issued by the Regional Transport Authority under the provisions of the .
He is liable to pay tax in respect of the said motor vehicle under section 3 of the Act which provides that a tax at the rates specified in Part A of the Schedule to the Act shall be levied on all motor vehicles suitable for use or roads.
Item 4 in Part A of the Schedule to the Act, as it stood in the year 1985, which related to the levy of tax on motor vehicles which were used as stage carriages reads thus: Class of vehicles Quarterly tax for vehicle fitted with pneumatic tyres ____________________________________________________________ (1) (2) ____________________________________________________________ "4.
Motor Vehicles other than those mentioned in items 5, 6 and 7 plying for hire and used for transport of passengers and in respect of which permits have been issued under the . 13 (i) Vehicles permitted to carry in all: Rs. p. (a) not more than three persons 40.00 (other than the driver) (b) Four persons (other than 75.00 the driver) (c) Five persons (other than 90.00 the driver) (d) Six persons (other than the driver) 200.00 (ii)(1) Vehicles permitted to carry more than six persons and plying exclusively on routes within the limits of cities and towns notified by the Government and other vehicles not falling under (2) below: (a) For every seated passenger 130.00 (other than the driver and the conductor) which the vehicle is permitted to carry.
(b) For every passenger (other than 45.00 the seated passenger, the driver and the conductor) which the vehicle is permitted to carry.
(2) Vehicles permitted to carry more than six persons and the total mileage of which exceeds 100 kilometers per day: (a) For every seated passenger 160.00 (other than the driver and the conductor) which the vehicle is permitted to carry.
(b) For every passenger (other than 45.00 the seated passenger, the driver and the conductor) which the vehicle is permitted to carry.
" 14 Item 5 of part A of the Schedule to the Act, as it stood during the relevant time.
referred to the tax payable by motor vehicles which were used as contract carriages under permits issued under the .
Item 6 of part A of the Schedule to the Act has been repealed.
Item 7 of Part A of the Schedule to the Act, as it stood during the relevant period, dealt with the tax payable in respect of omnibuses It read thus: ____________________________________________________________ Class of Vehicles Quarterly tax for vehicles fitted with pneumatic tyres ____________________________________________________________ (1) (2) ____________________________________________________________ "7.
Omnibuses, Rs. p. (a) permitted to carry not more than 10 50.00 persons (excluding the driver), for every person which the vehicle is permitted to carry: (b) permitted to carry 11 persons or 100.00 more (excluding the driver), for every person which the vehicle is permitted to carry.
The appellant was liable to pay at the time when he filed the writ petition Rs.160.00 per quarter for every seated passenger (other than the driver and the conductor) which the vehicle was permitted to carry and Rs.45 per quarter for every passengers (other than the seated passengers, the driver and the conductor) which the vehicle WAS permitted to carry.
Section 8 of the Act which provides for payment of additional tax in respect of motor vehicles reads thus: "8.
Payment of additional tax When any motor vehicle in respect of which a tax has been paid is altered or proposed to be used in a such a manner as to cause vehicle to become a vehicle in respect of which a higher rate of tax is payable, the registered owner or person who is in possession or control of such vehicle shall pay an additional tax or a sum which is equal to the difference between the tax already paid and the tax which is payable in respect of 15 such vehicle for the period for which the higher rate of tax is payable in consequence of its being altered or so proposed to be used and taxation authority shall not grant a fresh taxation card in respect of such vehicle so altered or proposed to be so used until such amount of tax has been paid.
It appears that on some stray occasions prior to the institution of the writ petition it had been found that in the motor vehicle which the appellant was operating as a stage carriage there were few passengers in excess of the number of passengers which he was allowed to carry under the permit issued to him under the in respect of the said motor vehicle.
The taxation authority under the Act, therefore, issued a demand for payment of additional tax under the provisions of section 8 of the Act on the ground that the appellant had proposed to use the motor vehicle in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax was payable following the decision of the High Court in Noorullha Khan 's case (supra).
Aggrieved by the said demand he filed the writ petition.
As mentioned above, that petition having been dismissed, this appeal by special leave has been filed.
Since the judgment of the High Court under appeal is based on the decision in Noorullha Khan 's case (supra) it is necessary to set out briefly the facts in that case.
Noorullha Khan who was the petitioner in that case was the registered owner of a motor vehicle classified as an 'omnibus ' with a seating capacity of 15+ 1 under the provisions of the and was subjected to tax on that basis under item 7(b) of Part A of the Schedule to the Act.
He was liable to pay at the rate of Rs. 100 per seat per quarter under the said provision.
He was, however, called upon by the taxation authority to pay an additional sum by way of tax on two different occasions calculating the tax on the basis of the number of passengers carried in the vehicle on those two occasions.
He challenged the said demands before the Deputy Commissioner for Transport in appeal.
That appeal having been dismissed he filed Writ Petition No. 8302 of 1980, referred to above, on the file of the High Court.
The High Court took the view that the petition in that writ petition having used the vehicle on two occasions for carrying passengers in excess of the number of passengers which he was allowed to carry under the permit he had become liable to pay additional tax for the 'proposed user ' of the motor vehicle in a manner different from the manner in which he was permitted to run it.
In support of its decision the High Court 16 relied strongly on the decision in Payne vs Allcock, 119321 2 K B. 413 in which the conviction of the owner of a motor vehicle in respect of which he had obtained a licence to use it as a private motor car for having used it for the conveyance of goods had been upheld.
The is a central act, which was enacted pursuant to Entry 20 of List III of the Seventh Schedule to the Government of India Act, 1935 corresponding to Entry 35 of List III of the Seventh Schedule to the Constitution of India.
The Act under which a tax is leviable on motor vehicles has been enacted by the Karnataka State Legislature in exercise of its powers under Entry 57 of List II of the Seventh Schedule to the Constitution of India.
Thus the scope of the Act and the scope of the are entirely different Section 42 of the provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorities the use of the vehicle in that place in the manner in which the vehicle is being used.
The expression 'permit ' is defined under section 2(20) of the as a document issued by the Commission or a State or Regional Transport Authority authorizing the use of a transport vehicle as a contract carriage, or stage carriage, or authorizing the owner as a private carrier or public carrier to use such vehicle.
Section 2(29) of the defines the expression 'stage carriage ' as a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.
Section 2(j) of the Act provides that the words and expressions used but not defined in the Act, shall have the meanings assigned to them in the .
Section 48(3)(vi) of the provides that the Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit specifying the maximum number of passengers that may be carried in the motor vehicle in respect of which the stage carriage permit is issued.
Section 60 of the empowers the Regional Transport Authority to cancel or suspend a permit for such period as it thinks fit on the breach of any of the conditions attached to the permit.
Thus a person who has obtained a stage carriage permit exposes himself to the cancellation of the permit itself under section 60 of the Act if he carries passengers in excess of the 17 maximum number of passengers that he is permitted to carry under the permit.
Under clause (2) of item 4 of Part A of the Schedule to the Act the owner of a vehicle used as a stage carriage the total mileage of which exceeded 100 kilometers per day had to pay for every quarter during the relevant time Rs.160 for every seated passenger (other than the driver and the conductor) and Rs.45 for every passenger (other than the seated passenger, the driver and the conductor) which the vehicle was permitted to carry.
According to the above provision if the owner of a motor vehicle, which is used as a stage carriage, who is permitted to carry, say, 45 person including the driver and the conductor of whom 40 are seated passengers and 3 are standing passengers, he has to pay Rs.6,535 for every quarter.
The question is whether he is liable to pay and additional tax under section 8 of the Act if he carries on any occasion any passengers in excess of the number of passengers he is permitted to carry Let us assume that the registered owner of the motor vehicle in the above case has carried on one occasion in a given quarter 47 passengers (inclusive of the driver and the conductor) and on another occasion in the same quarter 50 passengers (inclusive of the driver and the conductor).
In this illustration the question which arises for consideration is whether the registered owner is liable to pay Rs.6,535 for that quarter or Rs.6,535 plus the additional tax in respect of two more passengers or Rs.6,535 plus the additional tax for five more passengers during that quarter.
Section 8 of the Act PROVIDES that when any motor vehicle in respect of which a tax has been paid is altered or proposed to be used in such a manner as to cause vehicle to become a vehicle in respect of which a higher rate of tax is payable, the registered owner or person who is in possession or control of such vehicle shall pay an additional tax of a sum which is equal to the difference between the tax already paid and the tax which is payable in respect of such vehicle for the period for which the higher rate of tax is payable in consequence of its being altered or so proposed to be used and the taxation authority shall not grant a fresh taxation card in respect of such vehicle so altered or proposed to be used until such amount of tax has been paid.
The crucial words in section 8 of the Act are 'when any motor vehicle . . is altered or proposed to be used in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable '.
The payment of additional tax arises, therefore, only on two occasions; (i) when the motor vehicle is altered in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable; or (2) when any motor vehi 18 cle is proposed to be used in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable.
Admittedly, the vehicle in question has not been altered The question which remains to be considered is whether in the given case the vehicle is proposed to be used in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable.
The vehicle in question has been used only as a stage carriage even when two or five extra passengers have been carried.
There is no other provision in Part A of the Schedule to the Act which requires a higher rate of tax to be paid in respect of a vehicle which is being used as a stage carriage on the basis of a larger number of passengers that are carried in it.
In order to bring the case within the scope of section 8 of the Act it must be first shown that there is a provision in the Act which makes a stage carriage vehicle which carries a larger number of passengers than what is permitted under the permit issued in respect of it is subject to a higher rate of tax.
The highest rate of tax in respect of a stage carriage that can be levied under the Act is incorporated in clause (2) of item 4.
Sub clause (a) of clause (2) of item 4 of the Schedule to the Act provides that for every seated passengers (other than the driver and the conductor) which the vehicle is permitted to carry the registered owner is liable to pay Rs.160 and for every passenger (other than the seated passenger, the driver and the conductor) which the vehicle is permitted to carry has to pay Rs.45 per passenger per quarter.
In both the sub clauses the liability of the registered owner is governed by the number of passengers that he is permitted to carry under the permit issued in his favour under the and thus his liability is limited by the condition incorporated in the permit.
It would have been possible to levy higher tax on the appellant p only if the words 'which the vehicle is permitted to carry ' in item 4(2) of Part A to the Schedule to the Act had been omitted The Court cannot ignore those words while construing the said item since it relates to the levy of a tax.
Moreover the provision in section 8 is specific.
It says that the additional tax shall be equal to the difference between the tax already paid and the tax which is payable in respect of such vehicle for the period for which the higher rate of tax is payable is consequence of its being altered or so proposed to be used in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable.
There is another difficulty in applying section 8 to stray cases of overloading.
Additional tax is payable for the period during which the 19 vehicle is proposed to be used for a purpose which will attract a higher rate of tax.
The rate of tax is fixed taking one quarter i.e. 3 months as a unit of time for taxation.
Is it reasonably possible to determine the higher rate of tax payable, if say, on two days in a quarter there has been overloading of the vehicle for a few hours or minutes? The problem of computation of additional tax becomes difficult in such cases There is another important circumstance which persuades us to disagree with the construction placed by the High Court on the relevant provision of taxation in the Act.
The rate of taxation in this case is not based on the number of passengers actually carried during any period in a motor vehicle used as a stage carriage but it is related to the number of passengers which the motor vehicle is permitted to carry under the permit.
If the number of the passengers carried during any period is less than what is permitted, the registered owner of the motor vehicle does not get any rebate He has to pay the tax at the rate determined by the number of maximum passengers mentioned in the permit even when the stage carriage is run without any passengers.
When that is the position there appears to be no justification to hold that the registered owner or whoever is liable to pay the tax should be made to pay the additional tax merely because on some stray occasions the motor vehicle is found to have carried a few more passengers than the number permitted under the permit since the tax is not levied on the basis of the number of passengers actually carried.
The decision in Payne vs Allock, (supra) is clearly distinguishable from the present case.
In that case the appellant had paid the duty under para 6 of the Schedule II to the Finance Act, 1922 which was a residuary clause under which he had to pay 16 for taking out the licence for using his motor vehicle as a private motor car.
But he was found to be using the vehicle for the purpose of carrying goods for a fairly long period which brought the vehicle under the 5th para of that schedule which levied a higher rate of tax.
In the case before us, as we have already pointed out the vehicle could not be subjected to a higher rate of tax under any other item in Part A to the Schedule to the Act The argument urged on behalf of the State Government that the liability of the registered owner to pay tax in respect of a stage carriage depends upon the number of passengers carried in a vehicle on a given date does not appeal to us because in that event the words 20 which the vehicle is permitted to carry in item 4(2) become meaningless and ineffective.
The High Court in Noorullha Khan 's case (supra) overlooked the presence of the words 'which the vehicle is permitted to carry ' which are found in clause (b) of item 7 of the Act also.
It is no doubt true that it is not in the public interest that a registered owner of a motor vehicle should be allowed to carry more passengers than the maximum number of passengers that he is allowed to carry under his permit and such a tendency on the part of any registered owner should be checked That fact, however, cannot be relied upon for the purpose of construing the items in Part A of the Schedule to the Act liberally and in favour of the State Government.
It is needless to say that a law which imposes a tax should be construed strictly.
If the action on the part of the registered owner is contrary to the provisions of the there is sufficient provision in that Act to take appropriate action against him and either to cancel the permit or to suspend it.
In the instant case we feel that when a registered owner of a motor vehicle which is permitted to be used as a stage carriage cannot be asked to pay additional tax under section 8 of the Act merely because he has carried on some occasions more passengers than the maximum number of passengers that he is permitted to carry under the permit.
The tax which he is liable to pay is limited by the maximum number of passengers he is entitled to carry under the permit.
We, therefore, do not agree with the decision of the High Court in Noorullha Khan 's case (supra).
We overrule it The judgment of the High Court against which this appeal is filed is liable to be set aside.
It is accordingly set aside.
The respondents are directed not to levy additional tax on the appellant under section 8 of the Act for carrying more passengers than what he was permitted to carry on some occasions during the period in question.
But we however impress upon the authorities the need to enforce the provision in section 60 of the strictly.
The appeal is accordingly allowed.
No costs S.L. Appeal allowed.
[/INST]% The appellant was a registered owner of a motor vehicle run by him as a stage carriage under a permit issued under the .
He was liable to pay tax in respect of the vehicle under section 3 of the Karnataka Motor Vehicles Taxation Act, 1957, which provides that a tax at the rates specified in Part A of the Schedule to the Act shall be levied on all motor vehicles suitable for use on roads, and item 4 in Part A of the Schedule to the Act, as it stood in 1985, relates to the levy of tax on the motor vehicles used as stage carriages.
On some occasions, it was found that the appellants stage carriage was carrying passengers in excess of the number of passengers allowed to be carried under the permit issued to him under the .
The taxation authority under the Karnataka Act above said issued to him a demand for the payment of additional tax under section 8 of the said Act.
The appellant filed a writ petition, challenging the demand for the additional tax.
The High Court dismissed the petition, following its earlier decision in Noorullha Khan vs State of Karnataka (Writ Petition No. 8302 of 1980, etc.
decided on 26.6.85.) The appellant appealed to this Court by special leave against the order of the High Court.
Allowing the appeal, the Court, ^ HELD: The taxation authority levied the additional tax under section 8 of the Karnataka Motor Vehicles Taxation Act, 1957, on the ground that the appellant had proposed to use the vehicle in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax was payable, in accordance with the decision of the High Court in the Noorullha Khan 's case.
The payment of the additional tax arises as per section 8 on two occasions (i) when the Motor 11 Vehicle is altered in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable, or (ii) when any motor vehicle is proposed to be used in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable.
The vehicle in question has not been altered, and it has been used only as a stage carriage, even when two or five extra persons have been carried.
There is no other provision in Part A of the Schedule to the Act which requires a higher rate of tax to be paid in respect of a vehicle which is being used as a stage carriage on the basis of a larger number of passengers that are carried in it.
It would have been possible to levy a higher tax on the appellant only if the words 'which the vehicle is permitted to carry ' in item 4(2) of Part A to the Schedule to the Act had been omitted.
These words cannot be ignored in the construction of the said item since it relates to the levy of tax.
Also, the provision in section 8 is specific.
[17G H; 18A C, F G] The High Court in Noorullha Khan 's case overlooked the presence of the words 'which the vehicle is permitted to carry ', found also in clause (b) of item 7 of the Karnataka Act.
A law which imposes a tax should be construed strictly.
A registered owner of a motor vehicle, which is permitted to be used as a stage carriage cannot be asked to pay additional tax under section 8 of the Act merely because he has carried on some occasions more passengers than the maximum number of passengers that he is permitted to carry under the permit.
The tax which he is liable to pay is limited by the maximum number of passengers he is entitled to carry under the permit.
The Court does not agree with the decisions of the High Court in the Noorullha Khan 's case, which is overruled.
The judgment of the High Court impugned set aside and the respondents directed not to levy the additional tax on the appellant under section 8 of the Karnataka Taxation Act for carrying more passengers than what he was permitted to carry on some occassions during the period in question.
Need impressed upon the authorities to enforce the provision in section 60 of the , strictly.[20A, D F] Payne vs Allock, , referred to.
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<s>[INST] Summarize the judgementivil Appeal No. 2311 of 1978.
From the Judgment and Order dated 27.3.1978 of the Allahabad High Court in Second Appeal No. 130 of 1975.
Awadh Behari and N.N. Sharma for the Appellants.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the judgment and order dated 27.3.1978 of the High Court of judicature at Allahabad (Lucknow Bench), in second appeal No. 130 of 1975, dismissing the appeal and upholding the decree of the plaintiff respondent 's suit.
The plaintiff respondent Prem Behari Khare instituted suit No. 42 of 197 1 in the court of Civil Judge, Mohanlal Gun j, Lucknow praying for the reliefs, inter alia, that he be declared to be the sole and real owner of the suit house, and that the defendant appellant be permanently restrained from transferring the suit house.
The learned Civil Judge, Lucknow, by his judgment dated 133.1974 decreed the suit declaring the plaintiff to be the sole and real owner of the suit house and permanently restraining the defendant from transferring the suit house to any other person.
On first appeal by the defendant appellant the learned Additional District Judge; Lucknow by his judg 627 ment dated 23.12.1974 dismissed the appeal agreeing with the findings of the trial court that it was the plaintiff re spondent who paid the consideration and purchased the suit house benami in the name of tile defendant appellant who, therefore, had no right to create any equitable mortgage or to transfer the suit house.
The defendant appellant 's second appeal thereafter was also dismissed by the High Court of Judicature at Allahabad by the impugned judgment dated 27.3.1978.
Hence this appeal by special leave.
Mr. A.B. Rohtagi learned counsel for the appellant submitS, inter alia, that the learned courts below erred in holding that the suit house was not gifted by the plaintiff to the defendant but was held benami in her name; and that even if it was so held benami, the subsequent legislation, namely, the Benami Transactions (Prohibition) Act 1988, has put a complete bar to the plaintiff 's suit against the defendant in respect of the suit house.
Mr. Yogeshwar Prasad learned counsel for the respondent refutes submitting that the issues on gift and benami have been concluded by concurrent findings of fact of the learned courts below; and that the plaintiff 's right to the benami suit house having already become final, it will not be affected by the subsequent Act.
The first question, therefore, is whether or not to interfere with the concurrent findings of fact of the learned courts below.
It has been said in a series of deci sions that ordinarily this court in an appeal will not interfere with a finding of fact which is not shown to be perverse or based on no evidence, (Babu vs Dy.
Director, A.I.R. 1982 S.C. 756), but will interfere if material cir cumstances are ignored by the High Court.
Prasad vs Govin daswaray; , In Dhanjibhai vs State of Gujarat, ; it was observed that where a finding of fact has been rendered by a learned Single Judge of the High Court as a court of first instance and thereaf ter affirmed in appeal by an Appellate Bench of that High Court, this Court should be reluctant to interfere with the finding unless there is very strong reason to do so.
There is no reason why this should not apply to cases where the first appellate court was the district court.
It was noted in Ganga Bishan vs Jay Narayan, A.I.R. 1986 S.C. 441 that ordinarily this Court, under Article 136 of the Constitu tion, would be averse to interfere with concurrent findings of fact recorded by the High Court and the Trial Court.
But where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship this court could not 628 decline to interfere merely on the ground that findings in question are findings on fact.
So also in Uday Chand Dutt vs Saibal Sen, A.I.R. 1988 S.C. 367 it was said that in an appeal by special leave under Article 136 of the Constitu tion of India where there are concurrent findings of the courts below this court is not called upon to reconsider the entire evidence in detail to ascertain whether the findings are justified.
In Ram Singh vs Ajay Chawla, A.I.R. 1988 S.C. 514 where the concurrent finding was that the appellants were in unauthorised occupation of premises of which the respondents were the owners this court did not interfere with the concurrent findings of fact.
Mr. Rohtagi lays emphasis on the facts, namely, that the plaintiff Prem Behari Khare 's wife having died in 1955 leaving behind two sons aged about 2 and 3 years respective ly, he faced great difficulties in managing the household, looking after his sons and carrying on his duties as employ ee of the Allahabad Bank; that under these circumstances he agreed to take in the defendant Mithilesh Kumari whose relation with her husband Ram Swarup was then estranged; that the relation between the plaintiff and the defendant come to be such that she bore two children to him; that there were efforts to legalise their de facto living as man and wife by obtaining defendant 's divorce from her husband, and in fact there was a decree for judicial separation in 1958; that the plaintiff had full confidence in, and affec tion towards the defendant; and that in the court he could give no reason why he purchased the house in the name of the defendant.
Under those circumstances, counsel submits, the purchase of the suit house in the name of the defendant was made for Rs.8,000 out of which Rs.2,000 contributed by the defendant, and the learned courts below ought, therefore, to have held the transaction of purchase in the name of defend ant to have been a genuine gift out of love and affection and not a benami purchase in her name.
Perusing the judgment of the Trial Court we find that whether the transaction was a benami or it was a genuine gift by the plaintiff to the defendant were main issues on which parties led evidence.
The averment that the defendant contributed Rs.2,000 towards purchase price was disbelieved by both the courts below.
The plaintiff respondent proved from the statement of his Savings Bank account of Allahabad Bank, Exts.
6, 7 and 8, that he withdrew Rs.8,250 on 8.11.1962 and stated in witness box that he purchased the suit house in the name of the defendant by sale deed execut ed on 8.11.1962 which was registered on 9.11.1962.
The plaintiff respondent has since been staying in the suit house.
As the two were living as man and wife the 629 custody of the sale deed was not very material.
We thus find that the concurrent findings are based on reasonable appre ciation of evidence on record and, therefore, can in no way be said to be perverse or unreasonable.
Counsel criticises the observation of the High Court that the relation between the two was of a rather objectionable nature.
We do not think that this observation was unwarranted or it had in any way prejudiced the defendant 's case.
The High Court has analysed the facts and correctly applied the tests to deter mine whether the transaction was benami or not discussing the case law.
We do not find any justification in the appeal under Article 136 of the Constitution of India to interfere with the concurrent findings of fact.
The next question is whether despite the decree in favour of the plaintiff respondent his suit or action will be affected by the subsequent legislation, namely, the Benami Transactions (Prohibition) Act, 1988 and its prede cessor Ordinance.
In other words, whether the effectuation of the decree has been barred.
For this it is relevant to note that the impugned High Court judgment was dated 27.3.1978.
The first appellate court 's judgment was dated 23.12.1974, the trial court judgment dated 13.3.1974 and the suit was filed in 1971.
The special leave to appeal was granted by this Court on 15.11.1978.
The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, hereinafter referred to as 'the Ordinance ', was pro mulgated on May 19, 1988 to come into force at once.
The Benami Transactions (Prohibition) Act, 1988 (Act No. 45 of 1988), hereinafter referred to as 'the Act ', received the asset of the President of India on September 5, 1988.
The provisions of Sections 3, 5 and 8 of the Act came into force at once on that date and the remaining provisions were to be deemed to have come into force on 19th day of May 1988.
It is an Act to prohibit benami transactions and the right to recover property held benami and matters connected therewith or incidental thereto.
Mr. Rohtagi submits that provisions of the Act cover past benami transactions also and that to hold so it would be permissible for this Court to refer to the 57th Report of the Law Commission of India wherein it was suggested that the legislation should not be applied to past transactions but the Parliament did not accept that suggestion, and made the law applicable to past transactions also.
Learned counsel for the respondent Submits that the provisions of the Act are prospective and not retrospective, and as such would not affect the respondent 's established right to the benami property.
He has not controverted that this Court can refer to Law Commission 's Report.
630 To decide the controversy the relevant provisions of the Act may be referred to.
As defined in section 2(a) of the Act "Benami Transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person.
As defined in section 2(c) of the Act "property" means property of any kind, whether movable or immovable, tangible or intangible and includes any right or interest in such property.
There can, therefore, be no doubt that the transaction by which the suit house was transferred to the defendant appellant for Rs.8,000 paid or provided by the plaintiff respondent would be a benami transaction if this law is applicable to it.
There is also no doubt that the suit house being a tangible immovable would be included within this definition of 'property '.
Section 3 of the Act prohibits benami transactions by pro viding: "(1) No person shall enter into any benami transaction.
(2) Nothing in sub section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) Whoever enters into any benami transaction shall be punishable with imprison ment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non cognisable and bailable.
" The appellant having not been wife or unmarried daughter of the respondent the exception in (2) will not be applica ble.
Section 4 prohibits the right to recover property held benami by providing: "(1) No suit, claim or action to enforce any right in resspect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
631 (2) No defence based on any right in respect of any property held benami, whether against the person m whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
" Having upheld the finding that the suit house has been held benami by the respondent in the name of the appellant, the question is whether to this transaction the Act shall be applicable.
The Act has not been made retrospective by any specific provision.
Is it permissible to refer to the Law Commission 's Report to ascertain the legislative intent behind the provision? We are of the view that where a par ticular enactment or amendment is the result of recommenda tion of the Law Commission of India, it may be permissible to refer to the relevant report as in this case.
What impor tance can be given to it will depend on the facts and cir cumstances of each case.
In Santa Singh vs State of Punjab, [1977] 1 S.C.R. 229 Fazal Ali, J. in order to answer the question whether the non compliance with the provisions of section 235(2) of the Criminal Procedure Code, 1973 vitiated the sentence passed by the court considered it necessary to trace the historical background and social setting under which section 235(2) was inserted for the first time in the 1973 Code and referred to the research done by the Law Commission which made several recommendations in its 48th Report for revolutionary changes in the provision.
The Statement of Objects and Reasons were also referred to in that context.
In the instance case we find that way back in 1972 the Government of India consid ered it necessary to request the Law Commission of India to examine the problem of benami held property with a view to determining whether benami transactions should be prohibit ed.
The Law Commission accordingly submitted its 57th Report on benami transactions on 7.8.1973 after studying benami system as operating in India and in England.
It also exam ined implications of the provisions of the Indian Trust Act, 1882 and other statutory modifications of the Benami Law as contained in the Code of Civil Procedure, the Transfer of Property Act, the Indian Penal Code and the Income tax Act.
It also suggested in its Report the following draft of proposed legislation: 6.33 Recommendation: In the light of the above discussion, we recommend the enactment of a separate law containing the following legislative provisions: 632 "(1) No suit to enforce any right in respect of any property held benami against the person in whose name the, property is held or against any other person shall be institut ed in any court by or on behalf of a person claiming to be the real owner of such proper ty.
(2) In any suit, no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any court by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply: (a) whether the person in whose name the property is held is a manager of, or a co parcener in, a Hindu undivided family, and the property is held for)he benefit of the co parceners in the family, or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." On 19th May 1988, the President of India promulgated the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 (No. 2 of 1988) "to prohibit the right to recover property held benami and for matters con nected therewith and incidental thereto" based on the sug gestion of the Law Commission of India made as far back as in 1973.
With this Ordinance the judicial acceptance of benami transactions was being removed with a view to help people to keep property they were holding for others.
It remedied the age old doctrine of benami and made a benamidar the real owner in law, of course with few exceptions.
The Ordinance was referred by the Government on July 22, 1988 to the Law Commission of India requesting the latter to take up the question of benami transactions for detail examination and to give its considered views as early as possible so that a Bill to replace the Ordinance could be drafted on the basis of its recommendations and got passed before the close of the Monsoon Session of the Parliament.
633 The 130th Report of the Law Commission was submitted to the Government on August 14, 1988.
The Benami Transactions (Prohibition) Bill, 1988, drafted after getting the report, was introduced in the Rajya Sabha on 31st August, 1988 and the Bill was passed.
The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retroactive in operation and that no locus penitentia need be given to the person who had entered in the benami trans actions in the past.
It reported at para 3.18 as follows: "3.18.
Therefore, viewed from either angle, the Law Commission is of the firm opinion that the legislation replacing the ordinance should be retroactive in operation and that no locus penitentia need be given to the persons who had entered into benami transactions in the past.
They had notice of one and a half dec ades to set their house in order.
No more indulgence is called for.
" However, the court has to interpret the language used in the Act, and when the language is clear and unambiguous it must.
be given effect to.
Law Commission 's Reports may be referred to as external aid to construction of the provi sions.
It may be noted that the Act is a piece of prohibito ry legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in section 2(a) of the Act.
The Parliament has jurisdiction to pass a declaratory legis lation.
As a result of the provisions of the Act all proper ties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin.
This will be so even if the legislation is not retrospective but only retroactive.
The learned counsel for the respondent rightly submits that the Act contains no specific provision making its operation retrospective.
The Law Commission itself observed that democratic culture abhors ex post facto legislation and that it was necessary .to curb unlawful nefarious uses of property.
We read in Maxwell that it is a fundamental rule of English Law that no statute shall be construed to have retrOspective operation Unless such a construction appears very clearly at the time of the Act, or arises by necessary and distinct implication.
A retrospective operation is, therefore, not to be given to a statute so as to impair existing right 634 or obligation, otherwise than as regards matter of procedure .unless that effect cannot be avoided without doing violence to the language of the enactment.
Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective.
The presumption against retrospective operation is strong in .cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transac tions or consideration already passed.
However, a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time an tecedent to its passing.
We must look at the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former State of Law and what the legislation contemplated.
Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppres sive But laws made justly and for the benefit of individu als and the community as a whole, as in this case, may relate to a time antecedent to their commencement.
The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language em ployed in the statute.
It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed.
The question is whether on a proper construction the legislature may be said to have so expressed its inten tion.
Craise on Statute Law, 7th Ed. writes that the general rule of law that statutes are not operated retrospectively may be departed from (a) by express enactment and (b) by necessary implication from the language employed, and the author goes on to say: "If it is a necessary implication from the language employed that the legislature intend ed a particular section to have a retrospec tive operation, the courts will give it such an operation.
"Baron Parke," said Lord Hather ley in Pardo vs Bingham, did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be con strued, and said that the question in each case was whether the legislature had suffi ciently expressed that intention.
In fact, we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, what it was that the legis lature contemplated.
" But a statute is not to be read retrospectively except of necessity .
In Main vs 635 Stark, Lord Selborne said: "Their lordships, of course do not say that there might not be something in the context of an Act of Parlia ment, or to be collected from its language, which might give towards prima facie prospec tive a larger operation, but they ought not to receive a larger operation unless you find some reason for giving it .
In all cases it is desirable to ascertain the intention of the legislature." He went on: "Words not requiring a retrospec tive operation, so as to affect an existing statute preudicially, ought not to be so construed", but in Renold vs Att.
for Novo Scotia it was held that this rule did not extend to protect from the effect of a repeal a privilege which did not amount to an accrued right.
" (pp. 392 393) As defined in Section 2(a) of the Act "benami transac tion" means any transaction in which property is transferred to one person for a consideration paid or provided by any other person.
" A transaction must, therefore, be benami irrespective of its date or duration.
Section 3, subject to the exceptions, states that no person shall enter into any benami transaction.
This section obviously cannot have retrospective operation.
However, section 4 clearly provides that no suit, claim or action to enforce any right in re spect of any property held benami against the person in whose name the property is held or against any other person shall lie, by or on behalf of a person claiming to be real owner of such property.
This naturally relates to past transactions as well.
The expression "any property held benami" is not limited to any particular time, date or duration.
Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof Shall lie.
Similarly, sub section (2) of section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
It means that once a property is found to have been held bena mi, the real owner is bereft of any defence against the person in whose name the property is held or any other person.
In other words in its sweep section 4 envisages past benami transactions also within its retroactivity.
In this sense the Act is both a penal and a disqualifying statute.
In case of a qualifying or disqualifying statute it may be necessarily retroactive.
For example when a Law of Represen tation declares that all who have attained 18 years shall be eligible to vote, those who attained 18 yearS in the past would be as much eligible as those who 636 attained that age at the moment of the law coming into force.
When an Act is declaratory in nature .the presumption against retrospectivity is not applicable.
Acts of this kind only declare.
A statute in effect declaring the benami transactions to be unenforceable belongs to this type.
The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act.
In one sense there was a right to recover or resist in the real owner against the benami dar.
Ubi jus ibi remedium.
Where there is a right, there is a remedy.
Where the remedy is barred, the right is rendered unenforceable.
In this sense it is a disabling statute.
All the real owners are equally affected by the disability provision irrespective of the time of creation of the fight.
A right is a legally protected interest.
The real owner 's fight was hitherto protected and the Act has resulted in removal of that protection.
When the law nullifies the defences available to the real owner in recovering the benami property from the benam idar the law must apply irrespective of the time of the benami transactions.
The expression "shall lie" in section 4(1) and "shall be allowed" in section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or actions only.
This leads us to the question wheth er there was a present suit between the plaintiff respondent and the defendant appellant on the date of the law coming into force.
We have noted the dates of filing the suit and judgments of the courts below.
On the date of the section 4 of the Act coming into force, that is, 19th May 1988 this appeal was pending and, of course, is still pending.
Can the suit itself be said to be pending? Lachmeshwar vs Keshwar Lal, A.I.R. 1941 F.C. 5 is an authority for holding that the hearing of appeal under the procedural law of India is.in the nature of re hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against.
Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower court 's decision was correct according to the law as it stood at the time when its decision was given.
Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this court had seisin of the whole case, though for certain purposes e.g., execution, the decree was regarded as final and the courts below retained jurisdiction in that regard.
This was followed 637 in Shyabuddinsab vs The Gadag Betgeri Municipal Borough, ; where after the judgment of the High Court and after grant of special leave by this court the legislation was passed, and it was applied by this Court.
Their lordships, referring to The King vs The General Com missioner of Income Tax, and Mukharjee Official Receiver vs Ramratan Kaur, [1935] L.R. 63 I.A. 47 rejected the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings, it cannot affect the proceedings.
In Dayawati vs Inderjit, ; it has been held that the word 'suit ' includes an appeal from the judgment in the suit.
The only difference between a suit and an appeal is that an appeal only reviews and corrects and proceedings in a cause already constituted but does not create the cause.
1n Mohanlal Jain vs His Highness Maharaja Shri Man Singh, [1962] 1 S.C.R. 702 it was observed that "A person is "sued" not only when the plaint is filed against him, but is "sued" also when the suit remained pending against him.
The word "sued" covers the entire proceeding, in an action." In Amerjit Kaur vs Pritam Singh, it has been held that an appeal is a reheating and in moulding relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against.
For the respondent it is submitted that right of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit.
Reli ance is placed on Nand Kishore Marwah vs Samundri Devi, ; That however was a case of eviction where the rights of the parties on the date of suit were material unlike in this case where subsequent legislation has nullified the defences of benami holders.
That case is, therefore, distinguishable.
Counsel for the respondent lastly submits that nobody should be allowed to suffer for fault of the court.
As the maxim goes, actus curiae neminem gravabit.
Nobody should suffer for an act of the court.
However, the delay in dis posal of an appeal cannot be termed an action of the court.
The consequence is that the plaintiff respondent 's suit or action cannot be decreed under the law; and hence the decree passed by the lower courts is annihiliated and the suit dismissed.
In .the result, this appeal is allowed in the manner indicated above.
Under the peculiar facts and circumstances of the case, we make no order as to costs.
N.P.V. Appeal allowed.
[/INST]Under an import licence dated 3rd March, 1971 issued by the Chief Controller of Imports and Exports the respondent imported two fishing trawlers with the financial assistance of the second respondent Canara Bank.
The respondent con ducted negotiations with the appellant for a charter party agreement in respect of the said trawlers.
On 21st March, 1977, an agreement between the parties was executed 470 under which the appellant agreed to take on charter hire the said two trawlers for the purpose of deep sea fishing for a period of two years with an option to continue the hire for a further period of three years.
Under the terms of the agreement the respondent was to deliver the said trawlers to the appellant at Vishakhapatnam within seven days of the receipt of approval from the Chief Controller of Imports and Exports or no objection certificate from the Canara Bank, for making the said trawlers fully operational and to ascer tain the cost of such repairs.
The appellant charterer was then to conduct fishing trials to ascertain actual condi tions and thereafter the charter hiring was to commence from the date the fishing trials were ended.
On 18th August, 1977, the Chief Controller of Imports and Exports granted permission to the respondent to charter the said trawlers to the appellant on the conditions that the charter rent would be Rs.50,000 per month per trawler and that the charter would be for a period of three years.
On 30th September, 1977, the respondent delivered the said two trawlers for repairs to the appellant.
On 2nd February, 1978, the parties modified the agree ment revising the rate of charter hire and the date of commencement of hire, to the extent that the charter hire would commence from 15th January, 1978 and the revised rate of hire would be Rs.6,25,000 per trawler per year.
The appellant charterer raised objections alleging that the trawlers suffered from inherent and latent defects in the refrigeration system which was an essential part of such trawlers and as such the trawlers were not fully operational because even after carrying out extensive repairs the re frigeration system could not be brought to the required standard of minus 20 degree F but attained only minus 10 degree F.
On 29.9.1978, the appellant instituted a suit in the original side of the Calcutta High Court claiming (i) a decree for a sum of Rs.39,64,341 towards cost, charges, damages and compensation incurred on the said trawlers and, (ii) a declaration that the agreement was contrary to the terms of the permission granted by the Chief Controller of Imports and Exports and consequently illegal and against public policy and void; (iii) that the Parties had entered into the agreement on the basic fundamental assumption that by effecting necessary repairs the trawlers would be made fully operational but the assumption was subsequently dis covered to be mistaken because of the deficiency in the refrigeration system and it rendered the agreement void.
471 The respondent filed an application under Section 34 of the praying that the suit instituted by the appellant, and all proceedings therein be stayed because the disputes were wholly covered by the arbitration clause as contained in the modified agreement dated 2nd February, 1978 which was binding between the parties.
The Single Judge held that there was no invalidity for non compliance of the conditions of the licence granted because necessary permission was obtained in respect of the agreement from the Chief Controller of Imports and Exports and the modifications of the agreement did not impair its validity; though in a particular case if there was any doubt about facts, the matter had to be decided by trial on evi dence but in the instant case, having regard to the admitted facts and conduct of the parties it was not necessary to set down the matter for trial on evidence; there was no illegal ity or mutual mistake; that the alleged fundamental breach was wholly covered by the arbitration clause; that the arbitration clause was valid and binding between the par ties; and that all the conditions of Section 34 were satis fied.
Accordingly, the Single Judge granted stay of the suit and directed the parties to take immediate steps for initia tion of reference under the arbitration agreement.
The judgment and order of the Single Judge was confirmed by the Division Bench by dismissing the appeal.
In this appeal by special leave it was contended on behalf of the appellants that (i) the subject matter of the suit, namely, the question whether the agreement was void ab initio for mutual mistake was not arbitrable; and the courts below erred in holding so; (ii) assuming that the subject matter was arbitrable, the court should not have exercised its jurisdiction on the application under Section 34 because it involved complicated questions of fact and in exercising such jurisdiction the courts acted without jurisdiction; (iii) the court should have decided only after taking oral and documentary evidence and not merely on affidavits; (iv) the agreement was void being violative of the conditions of the permission granted by the Chief Controller of Imports and Exports; (v) the agreement itself having been void ab initio due to mutual mistake, the arbitration clause per ished with it and the courts below erred in holding that the disputes were arbitrable.
Dismissing the appeal, the Court, HELD: 1.
Section 34 deals with the staying of a suit where there 472 is an arbitration agreement concerning the subject matter of the suit and between the same parties.
For the Court to have power to exercise the discretion conferred upon it by this section, there must have been a valid agreement to submit to arbitration.
Where the objection is that the arbitration is a nullity, it amounts to an objection of want of jurisdic tion.
The term "arbitration agreement" includes "agreement to refer", and "submission" to Arbitrator.
A submission forming part of a void contract is itself void and cannot be enforced.
[484B C] 1.1 Whether a particular dispute arising out of a par ticular contract is referable to arbitration or not, must necessarily depend on the intention of the parties as em bodied in the arbitration clause.
If the dispute is squarely covered by the arbitration clause, the relevant provisions of the Act will be attracted.
The question whether the dispute in the suit fails within the arbitration clause really pre supposes that there is such agreement and in volves consideration of two matters, that is (i) what is the dispute in the suit, and (ii) what dispute the arbitration clause covers.
It is incumbent upon the court to decide whether there is a binding contract for arbitration between the parties.
If it is found that the dispute in the suit is not covered by the arbitration clause the application for stay may be dismissed.
[488H; 489A] 2.
Where in an application under Section 34 of the Act an issue is raised as to the validity or existence of the contract containing the arbitration clause, the court has to decide first of all whether there is a binding arbitration agreement, even though it may involve incidentally a deci sion as to the validity or existence of the parent contract.
If the arbitration clause is so wide as to have included the very validity or otherwise of the contract on the grounds of fraud, mis representations, mutual mistake or any valid reason the arbitrator will surely have jurisdiction to decide even that dispute.
The proper approach would be to examine the issue raised in the suit and to ascertain wheth er it squarely falls within the compass of the arbitration clause and take a decision before granting the stay of the suit.
If an issue is raised as to the formation, existence or validity of the contract containing the arbitration clause, the court has to exercise discretion to decide or not to decide the issue of validity or otherwise of the arbitration agreement even though it may involve incidental ly a decision as to validity or existence of the challenged contract.
Should the Court find the parent contract to be void ab initio or illegal or non existent, it will be with out jurisdiction to grant stay.
If the challenged contract is found to be valid and binding and the dispute raised in the suit covered by the arbitration clause, stay of the suit may be justified.
[491F G; 492A B, D F] 473 2.1 In the instant case, considering the issues raised, the arbitration clause and the surrounding circumstances and the part played by the parties pursuant to the charter party since execution to the modification and thereafter till objection raised by the appellant plaintiff.
it must be held that the trial court did not err in proceeding to decide the issue of validity or legality of the parent contract.
[492F G] 3.
Where the validity, existence or legality of the contract is challenged in suit on grounds de hors, independ ent of, or external to the terms or stipulations of the contract, the court in an application under Section 34 of the Act shall have no jurisdiction to go into the question, and that in a large majority of cases it would be applica ble, in appropriate cases, having regard to the nature of the dispute raised in the pleadings of the suit, the compass and scope of the arbitration clause in the contract, the surrounding facts and circumstances of the case having a bearing on the question of genuine grievance failing outside or inside the arbitration agreement and the objects and spirit of the , the Court may be justified in deciding the validity, existence or legality of the chal lenged contract containing the arbitration agreement.
[488A C] 3.1 In the instant case, the arbitration clause formed part of the agreement.
The arbitration agreement is not the same as the contract in the charter party.
It cannot, there fore, be said that the validity or otherwise of the charter party was covered by the arbitration clause.
[489D E] Jee Lae vs Lord Dalmeny, ; Heyman vs Darwins, ; Monro vs Bognor Urban District Council, ; Jawaharlal Burman vs Union of India, ; Waverly Jute Mills Co. Ltd. vs Raymon & Co. (India) Pvt. Ltd.; ,3 S.C.R. 209; ; Khardah Co. Ltd. vs Raymon & Co. India Ltd., ; ; Renusagar Co. vs General Electric Co., ; ; Anderson Wright Ltd. vs Moran and Company, [1955] 1 S.C.R. 862; Damodar Valley Corporation vs
K.K. Kar; , ; Hirji Mulji vs Cheong Yue Steamship Co., ; applied.
Banwari Lal vs Hindu College, A.I.R. 1949 East Punjab 165; Johurmull Parasram vs Louis Dreyfus Co. Ltd. 52 C.W.N. (1947 48) 137 A.I.R. 1949 Cal 179; Pramada Prasad vs Sagar Mal Aggarwal, A.I.R. 1952 Patna 352; Narsingh Prasad vs Dhanraj Mills.
I.L.R. 21 Patna 544; A.I.R. 1943 Patna 53; Birla Jute Manufacturing Co. Ltd. vs Dulichand.
A.I.R. 1953 Calcutta 450; W.F. Ducat & Co. Pvt. Ltd. vs 474 Hiralal Pannalal, A.I.R. 1976 Calcutta 126; General Enter prises vs Jardine Handerson Ltd., A.I.R. 1978 Calcutta 407; Khusiram vs Hanutmal, , approved.
In the instant case, facts were admitted.
[493B C] All the relevant documents and affidavits were before the Court and were considered by it.
Therefore no illegality was committed by the trial court in not setting down the matter for trial on evidence and deciding the validity and legality of the matter without taking oral evidence.
[49211; 493B] 4.1 Even if it appears that the discretion could have also been exercised to decide the issue of invalidity in a trial on evidence adduced, this court would not substitute its view for that of the trial court, unless the ends of justice required it to be done.
This Court would not lightly interfere under Article 136 of the Constitution with the concurrent exercise of discretion of the courts below under Section 34 of the .
Before it can justly do so, the appellant must satisfy the Court, on the relevant facts referred to by the Courts below, that they exercised their discretion in a manifestly unreasonable or perverse way which was likely to defeat the ends of justice.
The appellant has failed to do so in the instant case.
[493C, E F] Ormarod vs Todmordon, ; Charles Osenton and Co. vs Johnston, ; Gardner vs Jay, ; Printers (Mysore) Pvt. Ltd. vs Pothan Joseph; , , applied.
Where the parties make mutual mistake misunderstand ing each other and are at cross purposes, there is no real correspondence of offer and acceptance and the parties are not really consensus ad idem.
There is thus no agreement at all; and the contract is void.
Section 20 is concerned with common mistake of fact and not mutual mistake.
A common mistake is there where both parties are mistaken about the same vital fact although both parties are ad idem, e.g., the subject matter of the contract has already perished.
A con tract in such a case is void.
Where each party is mistaken as to the other 's intention, though neither realises that the respective promises have been misunderstood, there is mutual mistake.
1493H; 494A B] 6.
A mistake will not affect assent unless it is the mistake of both parties, and is as to the existence of some quality which makes the thing 475 without the quality essentially different from the thing as it was believed to be.
Neither party can rely upon his own mistake to say that it was a nullity from the beginning, no matter that it was a mistake which to his mind was fundamen tal, and no matter that the other party knew that he was under a mistake.
A fortiori, if the other party did not know of the mistake but shared it.
The question is not what the parties had in their minds, but what reasonable third par ties would infer from their words or conduct.
The court has to ascertain the "sense of the promises".
[496E; 495G H] 7.
The application of the doctrine of mutual mistake depends upon the true construction of the contract made between the parties.
A mutual misunderstanding will not nullify a contract but only if the terms of contract con strued in the light of the nature of the contract and of the circumstances believed to exist at the time it was done show that it was never intended to apply to the situation which in reality existed at that time, will the contract be held void.
Thus a mistake as to an essential and integral element in the subject matter of the contract will avoid the con tract.
A mistake as to the quality of the article contracted for may not always avoid the contract.
A distinction, there fore, should be drawn between a mistake as to the substance of the thing contracted for, which will avoid the contract and mistake as to its quality which will be without effect.
According to circumstances even a mistake as to the sub stance of the thing contracted for may not necessarily render a contract void.
Thus there must be a difference so complete that, if the contract were enforced in the actual circumstances which have unexpectedly emerged, this would involve an obligation fundamentally different from that which the parties believed they were undertaking.
[496A H] 8.
From the series of steps taken for repairs and the stipulations in the charter party including the modifica tions thereof, it is not possible to hold that it was a case of mutual mistake as to a quality which made the trawlers transferred essentially different from the trawlers that the parties in their minds agreed to transfer.
Therefore, there was no mutual mistake and the contract would not be avoided on this ground.
[498C D] Cooper vs Phibbs, ; ; Ear/Beauchamp vs Winn., ; Hudders field Banking Co. vs Henry Lister & Sons, [1895] 2 Ch. 273; Bell vs Laver Brs.
Ltd.; , ; Kannedy vs Panama Royal Mail Co., ; Smith vs Hughes, [1871] L.R. 6 Q.B. 597; Solle vs Butcher, 476 Fraderick E. Rose (London) Ltd. vs William H. Pim Junior & Co. Ltd. ; Sheikh Brothers LId.
vs Arnold, ; referred to.
U.P. Government vs Nanhoo Mal, A.I.R. 1960 All. 420, approved.
It is settled law that where the subject matter of a reference is illegal, no award can be of any binding effect.
If the contract itself was illegal, the controversy as to whether it was illegal or not would not be a dispute arising out of the contract as also would be the question whether the contract was void ab initio.
When, however, it is found that a binding contract was made which was not illegal what follows from such a contract would be covered by the expres sion "dispute arising out of contract".
To stay a suit under Section 34 the Court has to see whether there was a valid agreement to have the dispute settled by arbitration and that the proceedings are in respect of a dispute so agreed to be referred.
[498E, (; H; 499A] 10.
Public policy imposes certain limitations on the freedom of contract by forbidding the making of certain contracts.
In such cases though all other requisites for formation of the contract are complied with, parties to such forbidden contracts are not allowed to enforce any rights under them.
In clear cases the law strikes at the agreement itself by making the contract illegal.
However, the effect and nature of illegality are by no means uniform and will depend upon the facts and circumstances of each case.
Where a statute makes a contract illegal or where a certain type of contract is expressly prohibited there can be no doubt that such a contract will not be enforcible.
[499B D] 11.
A contract which was not illegal from the beginning may be rendered illegal later by the method of performance which did not comply with the statutory requirements.
The appellant 's burden was to show that the charter party was illegal to take it out of the arbitration clause for if the contract is illegal and not binding on the parties the arbitration clause would also be not binding.
Once it is shown to have been illegal it would be unenforcible as ex turpi causa non oritur actio.
[499G H] 12.
One who knowingly enters into a contract with im proper object cannot enforce his rights thereunder.
The appellant in the instant case was also a party to the agree ment of charter party in respect of the two imported trawl ers.
Though it purported to be actual user 's licence 477 there was no violation of this condition in view of the express permission granted by the Controller of Imports and Exports allowing the chartering of the two imported trawl ers.
The modifications to the contract did not make any alteration so as to make the agreement contrary to the terms and conditions of the permission inasmuch as the permission was for a period of three years.
The option to continue hire of the trawlers for a further period of three years did not ipso facto violate the permission.
There was also no viola tion as to the duration of the charter party.
[499H; 500C E] Taylor vs Barnett, ; Anderson Wright Ltd. vs Moran and Company, [1955] 1 S.C.R. 862; In Re arbi tration between Mahmoud and Isphani, ; applied. 13.
The Courts below were right in holding that the matters were arbitrable apart from the question of illegali ty, invalidity of the contract.
The question of invalidity of the contract due to the alleged mutual mistake would be de hors and independent of the contract and as such would not be referable under the arbitration clause.
In so far as the question of illegality of the charter party is concerned as the appellant has not established that the charter party was illegal or void as initio, the question whether the modification as alleged had rendered the contract illegal would be covered by the arbitration clause.
[500F G] 14.
In the instant case, the reliefs claimed in the suit other than the question of ab initio invalidity or illegali ty of the contract would be referable.
However, it will be within the jurisdiction of the arbitrator to decide the scope of his jurisdiction.
The Court cannot make a contract between the parties and its power ends with the interpreta tion of the contract between them.
The same principle also applies to the arbitration agreement unless the parties to the arbitration agreement authorises the court to make and modify the agreement.
The arbitrator shall proceed in ac cordance with law to decide the questions including that of jurisdiction, if raised.
[501C 1).
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<s>[INST] Summarize the judgementCivil Appeals Nos.
493 495 of 1 974 Appeals by special leave from the judgment and order dated the 9th August, 1973 of the Madras High Court in Civil Revision Petition Nos.
1470 to 1472 of 1973.
K. section Ramamurthi, T. N. Vallinayagam, R. N. Nath and V. Maya Krishnan, for the appellant.
M. Natesan, K. Jayaram and R. Chandrasekhar, for the respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
These appeals by special leave are directed against the order of the High Court of Madras in three Civil Revision Petitions under section 25 of the Madras Buildings (Lease and Rent Control) briefly the (Act) whereby the High Court refused to interfere A with the orders of the appellate authority under the Act holding that the appellant (hereinafter to be described as the landlord) has no right to evict the respondents (hereinafter to be described as the tenants) from the premises in question on the ground of demolition and reconstruction.
The tenancy under the landlord is admitted by the tenants there is also no question with regard to validity of the notice of eviction.
The only questions in controversy in these appeals are whether the landlord in this case, who is the holder of life interest in the property, is entitled to evict the tenants under section 14(1) (b) of the Act on the ground that the building is bona fide required by the landlord for demolition and for reconstruction.
The second question raised` in one of the appeals is whether a single petition is maintainable to evict the tenants from two different tenancies one for residential purpose and the other for non residential purpose.
The latter point has been held by the High Court in favour of the landlord but the tenants are raising it in seeking to support the earlier order of the appellate authority.
The premises are situated at Anna Pinai Street, Madras.
Originally the premises belonged to late section Manicka Chettyar, father of section M. Gopalakrislina, the present landlord.
By virtue of a Deed of Settlement executed by section Manicka Chettyar on May 9, 1934, possession of the premises was delivered to his wife, Manoranjithammal, as trustee and guardian an of his three minor children, section M. Gopalakrishna then aged 13` years, and his two minor daughters, Indrani Ammal and Palani Ammal.
We are not concerned with the various directions in the Deed of Settlement except to note the admitted position that Manoranjithammal was allowed to enjoy the rents and profits of the property for her life time subject to certain charges mentioned in the Deed.
After the life time of the settlor 's wife, his son, section M. Gopalakrishna (appellant) shall enjoy the rents and profits of the said property. for his life time" subject lo certain charges on account of his two sisters.
It is further mentioned in the Deed that after the life time of Gopalakrishna, his son and son 's heir of any predeceased son living at that time shall enjoy the property subject to identical charges as absolute owners, with right of sale, gift, etc.
There are further directions in case of other contingencies with which we are not concerned.
We may, however, note that section M. Gopalakrishna is issueless.
From the above terms of the Settlement it is contended by the tenants that the landlord has only a life interest in the premises in question and that it is inherent in such a life interest that it is not permissible for the landlord to invoke section 14(1) (b) as grounds for eviction of the: tenants by demolition of the property for the purpose of reconstruction.
It is emphasised that since the interest of the remainder man may be prejudiced? the landlord with a life interest in the premises cannot evict the tenants on these grounds.
The Rent, Controller held that the requirement of the landlords bona fide and ordered for eviction of the tenants.
The Court of Small Causes, 275 which is the appellate authority, allowed the appeals lodged by the tenants against the orders of eviction and set aside the orders of eviction.
As noticed earlier the High Court refused to interfere in revision.
The High Court agreed with the! view of the appellate authority that the landlord had no right to ask for eviction of the respondents on the ground of demolition and reconstruction, he admittedly having only a life interest or right to enjoy the property for his life.
The appellant sub mits that this view is not legally tenable.
Before we proceed to consider the point in controversy, we may read section 14(1)(b): 14.
"Recovery of possession by landlord for repairs or for reconstruction. (1) Notwithstandig anything contained in this Act, but subject to the provisions of section 12 and 13, on an application made by a landlord the Controller shall, if he is satisfied (b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date".
The expression landlord is defined under section 2(6) as follows: " 'Landlord ' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own ac count or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant".
x x x x This inclusive definition o landlord would clearly take in its sweep the present landlord who holds a life interest in the premises and who admittedly has been on his own right under the Deed of Settlement as a trustee receiving rents of the premises from the tenants.
We are not even concerned with the question as has been sought to be established in the case by proving that there is no possibility or any objection from the daughters of the settlor or from any other remainder man.
It is sufficient to observe that the rights between section M. Gopalakrishna and the remainder man with regard to the terms of the Deed of Settlement win have to be worked out in appropriate proceedings, if necessary and the general law win govern the matter if any occasion arises.
On the other hand, the Act with which we are concerned is a self contained and complete code for regulation of the rights between landlord and tenants as defined in the Act (See M/s Raval and Co. vs K. G. 276 Ramachandra and others (1).
Thus a controversy that may arise between a landlord and others, who are not his tenants under the Act, is outside the ken of this Act.
Even a possible dispute, imaginary or real, between the landlord and the remainder man cannot affect adjudication of the claim of the landlord against his tenants under the provisions of the Act.
It win also not affect the efficacy of the nature of the plea of bona fide on the part of the landlord, if otherwise so.
Such questions as are raised in this appeal by the tenants are, therefore, irrelevant in a litigation between the landlord and tenants when a suit for eviction is instituted by the former on any of the grounds available to him under the Act.
It is clear that when the objection on the score of the landlord being a holder of life interest and hence incapable of invoking section 14 (1) (b) fails the suit must be decreed.
lt was strenuously submitted by Mr. Natesan that a tenant with a life interest cannot be allowed to demolish the property in order to reconstruct it as that action would, per se be not bona fide.
We are unable to accede to this submission.
A landlord has every right to demolish his property in order to build a new structure on the site with view to improve his business or to get better returns on his investment.
Such a step per se, cannot be characterised as mala fide on the part of the landlord.
There is therefore.
no merit in this contention.
Mr. Natesan faintly submitted that a single petition with regard to two different tenancies, although in the same premises, one for residential purpose and the other for non residential purpose, is not maintainable.
We do not find any substance in such a contention when the tenancy is one.
In the result the appeals are allowed and the order of the High Court as well as that of the appellate authority are set aside.
The order of the Controller allowing eviction of the tenants stands restored.
We win, however, allow time to the tenants upto 31st January, 1976, to vacate the premises on the distinct condition that they shall submit affidavits in this Court undertaking to vacate the premises by the aforesaid date within two weeks from to day.
The appellant win be entitled to his costs in these appeals.
One set of costs P.H.P. Appeal allowed.
[/INST]In 1950, the respondent had executed three trust deeds for the benefit of three ladies who were described as his wives, and himself, as the father of their minor children.
After the returns in respect of the assessment year 1955 56, 1956 57, 1957 58 and 1958 59 were filed by the respondent, the Income tax Officer, who had the three trust deeds before him called upon the respondent for information regarding his relationship to those three ladies as well as his relationship to a fourth lady.
A statement was filed, on behalf of the respondent, before the Income tax Officer, wherein it was stated that only the fourth lady was his legally wedded wife, that the other three were merely referred to as the wives, and that their children were not the legitimate children of the respondent.
The Income tax Officer, in assessing the total income of the respondent did not include, under section 16(3) of the 1922 Act, the income of those three ladies and their minor children arising out of the trust properties.
In fact, he assessed them separately with respect to their income from the trust properties.
In 1964 the Income tax Officer issued notices under section 148 of the 1961 Act seeking to reopen the assessments under section 147 on the ground that there were two other trust deeds of 1957, which were not produced before the I. T. 0.
in which also two of the ladies were acknowledged as the wives of the respondent and their children as his children and that their marriage should be presumed because of the acknowledgement.
The respondent there upon challenged the validity of the proceedings and the High Court allowed his petition.
Dismissing the appeal to this Court, HELD : (1) Section 147(a) provides that if the Income tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for any year, income chargeable to tax has escaped assessment for that year, he may assess or reassess such income for the assessment year concerned.
The fact that the ladies and their children had been described in the 1957 documents as wives and children of the respondent would have been material if the description were any thing new that the Income tax Officer happened to discover for the first time.
But the 1950,deeds also contained the same description.
The non production of the 1957 documents at the time of the original assessment cannot therefore be regarded as non disclosure of any material fact necessary for the assessment of the respondent for the relevant assessment years.
Having second thoughts on the same material does not warrant the initiation of a proceeding under section 147.
[467G H; 468B; D E] (2) The law has not changed or since the original assessments were made and it was open to the Income tax Officer to have made the presumption that the ladies were the wives at the time when he made the assessment.
He cannot avail of section 147 to correct his mistake.
[468F G] (3) The expression 'reason to believe ' occurring in section 147 of the 1961 Act or the corresponding section 34 of the 1922 Act, does not mean a purely subjective satisfaction on the part of the Income tax Officer.
The reasons for the belief must have a rational connection or relevant bearing to the formation of the belief.
Therefore, the High Court, under article 226, has power to set aside a notice under section 147 of the 1961 Act or section 34 of the 1922 Act, if the condition precedent to the exercise of the .jurisdiction under those sections did not exist.
[469C D]
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<s>[INST] Summarize the judgementminal Appeal No. 119 of 1966.
Appeal by special leave from the judgment and order dated ' March 15, 1966 of the Calcutta High Court in Matter No. 375 of 1965.
B. Sen, P.K. Chatterjee and P.K. Chakravarti, for the appellant.
section V. Gupte and G.S. Chatterjee, for the Calcutta High Court.
The Judgment of the Court was delivered by Shah, J.
This appeal is filed with special leave against the order of the High Court of Calcutta declaring that a speech broadcast on the night of November 25, 1965, on the Calcutta Station of the All India Radio by Mr. P.C. Sen, then Chief Minister of West Bengal, was calculated to obstruct the course of justice and 651 on that account amounted to contempt of court and the conduct of Mr. Sen merited disapproval.
On August 23, 1965, the State of West Bengal issued, in exercise of power under sub rr.
(2) and (3) of r. 125 of the: Defence of india Rules, the West Bengal Channa Sweets Control Order, 1965, placing restrictions upon the right of persons carrying on business in milk products and especially dealers in sweetmeat made out of Channa.
In a petition moved by Nani Gopal Paul the High Court of Calcutta declared by order dated Novera bet 16, 1965, that the West Bengal Channa Sweets Control Order, 1965, is an "unreasonable piece of delegated legislation made in arbitrary exercise of power under r. 125 without any justification in law and regardless of the purpose for which such order may be made", and issued an injunction against the State of West Bengal from enforcing that order.
The State of West Bengal thereafter issued another order with immediate effect on November 18, 1965, called the "West Bengal ' Milk Product Control Order, 1965".
On November 22, 1965, Messrs Ramlal Ghosh and Grandsons challenged by Petition No. 369 of 1965 the validity of the Order issued on November 18, 1965, and prayed for a writ declaring the Order "null and void" and for an injunction restraining the State of West Bengal and the Secretary, Department of Animal Husbandry and Veterinary Services from giving effect to the said Order.
Rule was issued on the Petition by Banerjee, J., and was duly served on the State of West Bengal, on November 23, 1965.
On the night of November 25, 1965, the Chief Minister of West Bengal broadcast a speech on the All India Radio, Calcutta Station, seeking to justify the propriety of the Control Order.
In the course of that broadcast speech the Chief Minister made several comments on controversial matters which were pending for adjudication before the court At the hearing of the rule on November 29, 1965, counsel 1or.
Ramlal Ghosh and Grandsons brought to the notice of the Court a newspaper report of the speech broadcast by the Chief Minister Rule was issued by Banerjee, J., requiring the Chief Minister to show cause why he should not be committed for contempt of court on the grounds ( 1 ) that the speech was likely to prejudice the Court and the public against the cause of the petitioners, and ' may compel or induce them to discontinue the action, (2) that it was likely to have "the pernicious con,sequence" of prejudicing the minds of the public against the petitioners, (3) and that it was likely to have the effect of misrepresenting a piece of illegal legislation before the Court had an opportunity to decide the matter, and was on that account calculated to deter other persons havingsimilar causes from approaching the Court for relief.
652 Instead of making a frank statement before the Court, the Chief Minister was apparently advised to adopt grossly technical pleas Counsel informed the Court that the Chief Minister did "not like to use any affidavit showing cause".
Evidence was then led before the Court to prove that the offending speech was in fact broadcast by the Chief Minister on the All India Radio, Calcutta Station.
After evidence was recorded in the Court about the speech broadcast by the Chief Minister he somewhat belatedly filed an affidavit on March 4, 1966, admitting that he had delivered the speech on the All India Radio on the night of November 25, 1965, the contents of which were proved by the evidence of the Programme Director.
It was also admitted that the Chief Minister had knowledge of the filing of the petition when he broadcast the speech and of the rule served upon the State Government.
By the affidavit it was attempted to justify the speech, on the plea that the Chief Minister came to learn that certain persons had started publicly propagating the view that far from achieving the objects, the Order will not only reduce the supply of fluid milk in the area, but also displace numerous persons from their normal avocation resulting in unemployment for many that the object of the propaganda was to criticise and ridicule the policy of the State Government in promulgating the Order, that the propaganda had misled certain sections of the people about the object, purpose and nature of the Order and the consequences thereof, particularly with regard to the position of supply of milk and the question of continued employment of the persons working in the sweetmeat shops in the area, that taking advantage of the situation, attempts were made to commence a political agitation against the State Government for having promulgated the Order, and in the circumstances and particularly with a view to preventing widespread agitation in connection with the Order, it was thought that it was the duty of the Chief Minister of the State to explain to the people the policy underlying and the reasons for promulgating the Order, that in making the speech his sole and only intention and purpose was to "remove the confusion and allay the fears, if any, from the minds of the people with regard to the purpose nature, object and effect of the promulgation of the Order", that he had no intention, whatsoever of either showing any disrespect to the Court or interfering in any manner with the due course of the administration of justice, nor did he anticipate that his speech could have any such effect, and that by broadcasting his speech he had committed no contempt of Court nor had he any intention of doing so.
Banerjee, J., after a detailed examination of the relevant law and the speech broadcast, held that the speech broadcast amounted to contempt of Court "in the sense that it was likely to have 653 several baneful effects upon the petitioners" in Petition No. 369 of 1965, "upon their cause and upon others having a cause similar to that of the petitioners".
The learned Judge accordingly recorded that "the Chief Minister cannot wholly escape the charge of having committed contempt of Court", since "the speech was contumacious in the sense that it was likely to have baneful effects upon the petitioners" in Petition No. 369 of 1965 "their cause, and upon persons having a similar cause and as such was likely to interfere with the administration of justice by the Court.
" The learned Judge, however, observed that "the condemner Mr. Sen should be let off with an expression of disapproval of his conduct and in the hope that the sort of indiscretion will not be repeated".
In This appeal counsel for the appellant has raised four contentions in support of his argument that the High Court erred in holding that the Chief Minister by broadcasting the speech did commit contempt of Court: (1) that there is no finding by the High Court that the contempt was intentionally committed by the Chief Minister; (2) that by broadcasting the speech no real prejudice was caused either in the mind of the Judge or to the cause of the petitioners in Petition No. 369 of 1965; (3) that the speech contained no direct reference to any pending proceeding; and (4) that the Chief Minister was under a duty to make the Speech to instruct the public about the true state of affairs and to remove the misgivings arising in the public mind from agitation carried on by political parties.
The law relating to contempt of Court is well settled.
Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court: R.v.
Gray(1).
Contempt by speech or writing may be by scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard.
It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences.
Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a pro (1)[1900] at p.40.
Sup CI/69 9 654 ceeding amount to contempt.
To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt.
Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources.
The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice.
The question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice.
As observed by the Judicial Committee in Debi Prasad Sharma and Ors.
vs The King Emperor (1): " . the test applied by the .
Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law.
" If, therefore, the speech which was broadcast by the Chief Minister was calculated to interfere with the course of justice, it was liable to be declared a contempt of the Court even asuming that he had not intended thereby to interfere with the due course of justice.
There is nothing in Saibal Kumar Gupta and Ors.
vs B.K. Sen and Ant.
(2), on which counsel for the appellant relied, which supports his contention that intention of the contemner is the decisive test.
The observations of Imam, J., speaking for the majority of the Court that the appellants should be acquitted, because they "had at no time intended to interfere with the course of justice and their conduct did not tend to interfere with the course of justice", does not imply that conduct which tends to or is calculated to interfere with the administration of justice is not liable to be punished as contempt because the contemner had no intention to interfere with the course of justice.
Nor does the judgment of the Judicial Committee in Arthur Reginald Perera vs The King(a) support the contention that in determining whether conduct which is otherwise calculated to interfere with the due administration of justice will not be contempt of Court because on the part of the contemner there was no intention to interfere with the administration of justice.
In that case, a member of the House of Representatives in Ceylon, on receiving a complaint from some of the prisoners about the practice of producing followed by the Jail Authorities in the Court when an appeal filed by the prisoners was being heard, made an entry in the prison visitors ' book that "The present practice of appeals of remand prisoners being heard in their absence is not healthy.
When (1) L.R. 70I. A. 216atp.
(2) [1961] 3S.C.R. 460.
(3) 655 represented by counsel or otherwise the prisoner should be present at proceedings".
Information conveyed to Perera was inaccurate It was held by the Judicial Committee that Perera acted in good faith and in discharge of what be believed to be his public duty as a member of the legislature, and that he had not committed any contempt of Court because the words made no direct reference to the Court or to any of its Judges, or to the course of justice or to the process of the Courts.
His criticism was honest criticism on a matter of public importance and there was nothing in his conduct which came within the definition of contempt of Court.
The Chief Minister in the speech broadcast 'by him in the first instance announced what in his view is the legal effect of the Order promulgated, and then proceeded to state the reasons which persuaded the Government of West Bengal to issue the Order banning the preparation of sweetmeats with milk products Channa and Khir and expressed the hope that the residents of Calcutta will be in a position to secure larger quantities of milk.
He stated that if producers of Milk cooperate with the Government, not only will they be benefited, but they will do real good to a large number of people of the State.
He estimated the number of establishments which were in his view likely to be affected, and stated that many of the employees in their establishments who it was expected were likely to be thrown out of employment, may be employed in depots for collection of milk.
He wound up by stating "This new Order will (not) only be beneficial to the buyers and sellers of milk alone it will (also) be of help in solving the milk problem in the whole of West Bengal in the near future".
In the course of his speech he stated after referring to the difficulties encountered in procuring milk and the acute scarcity of milk prevailing in West Bengal: "According to the science relating to nutrition a person requires at least 8 Ounces of milk per day Hence to prepare any food with Milk in our West Bengal is, indeed, tantamount almost to a crime.
" He also stated: "The quantity of the milk collected under the Greater Calcutta Milk Supply Scheme has increased to 65 thousand Litres from 23 thousand Litres per day on the average.
A large number of people were getting supply of milk according to their requirements from the local Milkman (Goalas).
The quantity of milk collected from different sources in Calcutta increased to 2 lakhs and 61 thousand Litres from 2 lakhs and 12 thousand Litres.
This volume of milk supply (however) consti 656 tutes 41% of the total demand.
This supply could have been augmented much more if powder milk could be obtained in sufficient quantity from foreign countries.
But in view of foreign exchange difficulties, the Government of India curtailed the import of powder milk and as a result thereof great inconvenience was felt.
In the Greater Calcutta areas, the total demand of Milk at present is at least 6 lakhs and 30 thousand Litres" and that "The Government have considered the question of few employees of sweetmeat establishments being thrown out of employment as a result of promulgation of this new Order.
There are about seven thousand sweetmeat shops in the City of Calcutta and the number of persons employed in them is nearly 3,500.
The number of sweetmeat shops in other towns is about 1,000 and the number of persons employed in them is approximately 4,000.
Hence the total number of employees in all these sweetmeat establishments comes to about 39,000.
We should bear in mind that almost all these sweetmeat shops prepare salted (nonta) variety of edibles, such as, nimki, singara, radhaballavi, luchi dalpuri, Kachuri, jhuribhaja, alurdom, curry, dal etc.
Besides, curd is also sold by those shops which also sell kinds of sweets that do not at all require Channa or Khir (for their preparation)," that "Those workers who had until recently been bringing milk and Channa to Calcutta will be able to supply from now on milk to the Milk Collection Centres of the Government", and that "The quantity of milk collected by the Government is indeed daily on the increase.
And yesterday nearly 92 thousand 800 (sic) litres of milk were collected.
New Milk Depots will have to be opened soon in Calcutta and outside.
25 depots will shortly be opened in Calcutta and its neighbouring areas.
If the quantity of milk collected increases according to expectations, at least 1,000 additional depots will have to be opened in different places.
If in spite of an increase in the demand for other sweets a number of workers become unemployed, the Government is prepared to employ them in those depots.
This new Order will only be beneficial to the buyers and sellers of milk alone.
it will (also) be of help in solving the milk problem of the whole of West Bengal in the near future".
In their Petition No. 369 of 1965 M/s. Ramlal Ghosh and Grandsons had pleaded that the State of West Bengal and the Secretary, Department of Animal Husbandry and Veterinary 657 Services had acted mala fide and "in complete and utter disregard of the judgment and order of the High Court of Calcutta and without reading or considering the same had vindictively published" the impugned order "in anger and hot haste being recklessly careless as to the consequences thereof and without giving their mind to the comprehension and their wills to the discharge their duty towards the public" (Para 18).
They also had averted that they and other traders who carried on business only in milk products like Channa, Kheer including Khoa Kheer were facing complete ruin by reason of the total prohibition of their trade, commerce and intercourse (Para 19); that the impugned Order had not only prohibited the trade, commerce and intercourse of the petitioners but also its movement, and by the impugned Order the petitioners were not only prohibited from manufacturing but were also ordered not to supply or to trains ' port the same and to deliver the same to various customers within and outside Calcutta (Para 20); that "there was not nor there was any material before the Governor of West Bengal to form the alleged opinion and/or that the purported opinion was not reasonably formed" (Para 24); and that according to newspaper reports there were about 8,000 shops in Calcutta and 4,000 more in the neighbouring areas and those employed about 50,000 men and presuming that each employee maintained a family of 4, at least 200,000 people would be affected by the impugned Order (Para. 32).
In his speech the Chief Minister characterised the preparation of any food with milk in West Bengal as tantamount to a crime.
He also announced his version about the validity of the Order, the reasons why it was promulgated, and asserted that it was an order made bona fide and in the interests of the public, and that those who resisted it were acting contrary to the public interest.
But these questions had to be determined by the Court.
Banerjee, 1, in the judgment under appeal was of the view that the speech was likely to influence public opinion against the petitioners since the Chief Minister occupies a highly responsible position of power and authority under the Constitution, and being a person most likely to know the needs of the State there would be many who may believe in factual statements made by him.
The learned Judge observed that he was not prejudiced by the speech against the petitioners before him, since he was only "concerned with the constitutional and legal validity of the Control Order, and incidentally only with its socio economic justification", but it could ' not be said that the speech did not or could not or was not likely to prejudice the public against the cause of the petitioners.
He also observed that for the Chief Minister to have made a public appeal in support of the Order, with the knowledge of the issue of 658 the Rule Nisi calling upon the State Government and the Secretary, Department of Animal Husbandry and Veterinary Services to show cause why the Control Order should not be declared void was "improper and ill timed" and also "contumacious", for the Chief Minister had published in advance the defence to be taken against the Rule.
The criticism made by the learned Judge is not unwarranted.
The statements in a broadcast speech by an important dignitary of the State that persons who prepare sweets out of milk in the course of their business are on the version set up by him criminals, and the suggestion that the Order was issued in the interests of the public, whereas it was the contention of the petitioners that it was done "recklessly, arbitrarily and vindictively and without caring for the consequences, and without considering their duty to the public", are prima facie calculated to obstruct the administration of justice, since they are likely to create an atmosphere of prejudice against the petitioners and also to deter other persons having similar claims from approaching the Court.
There is in the speech no direct reference to the proceedings pending before the Court, but it is now common ground that the Chief Minister was aware of the filing of the petition and the issue of the rule which was served upon the Government.
Whether he was aware of all the details of the allegations made in the petition is not relevant.
If he knew that a petition was filed and the rule was served upon the Government of which he was the Chief Minister, before making any statement on a matter which was controversial it was his duty to acquaint himself with the allegations made and also to ascertain what the points in dispute were before going to on to a public broadcasting system to announce the case of the Government.
Whatever may be the motive of the Chief Minister and whatever he may have thought as a Chief Minister to be necessary in order to acquaint the public, a speech which presented the case of the Government to the public, before it was tried by the Court, and suggested that those who prepare sweetmeats out of milk were criminals and were acting in a manner contrary to the interest of the general public, was calculated to interefere with the due administration of justice.
Council for the Chief Minister contended, relying upon certain judgments of the Courts in the United Kingdom that in cases where the trial of a case is held without the aid of a jury, comments on matters in dispute in a pending proceeding or criticism of the parties thereto, will not amount to interference with the administration of justice.
Courts seek to punish acts or conduct calculated to interfere with the administration of justice; and we are unable to hold that when the trial of a case is held by a Judge 659 without the aid of a jury no contempt by interfering with the administration of justice may be committed.
The foundation of the jurisdiction lies not merely in the effect which comments on a pending proceeding may have upon the minds of the jury, but the pernicious consequences which result from the conduct of the contemner, who by vilification, or abuse of a party seeks to hold up a party to public ridicule, obloquy, censure or contempt or by comment on his case seeks to prejudge the issue pending.
We are unable to agree that where a trial of a case is held in the Court of First Instance, without a jury, or before a Court of Appeal persons so inclined are free to make comments on pending proceedings or to abuse parties thereto without any protection from the Court.
It is difficult to accept the contention that comments which are likely to interfere with the due administration of justice by holding up a party to a proceeding to ridicule or to create an atmosphere against him in the public mind against his cause when the trial is held without the aid of a jury do not amount to contempt.
If a party to the proceeding is likely to be deterred from prosecuting ,his proceeding or people who have similar cause are likely to be dissuaded from initiating proceedings, contempt of court would be committed.
It matters little whether the trial is with the aid of the jury or without the aid of jury.
In The William Thomas Shipping Co., In re.
H.W. Dhillon & Sons Ltd. vs The Company, In re.
Sir Robert Thomas and others(1) it was observed that the publication of injurious misrepresentations concerning parties to proceedings in relation to those proceedings may amount to contempt of Court, because it may cause those parties to discontinue or to compromise, and because it may deter persons with goods causes of action from coming to the Court, and was thus likely to affect the course of Justice.
But Maugham, J. observed: "There is an atmosphere in which a common law judge approaches the question of contempt somewhat different from that in which a judge who sits in this (Chancery) Division has to approach it.
The common law judge is mainly thinking of the effect of the alleged contempt on the mind of the jury and also, I think, he has to consider the effect or the possible effect of the alleged contempt in preventing witnesses from coming forward to give evidence.
In these days, at any rate, a Judge who sits in this Division is not in least likely to be prejudiced by statements published in the press as to the result of cases which are coming before him.
He has to determine the case on the (1) 660 evidence, of course, and with regard to the principles of law as he understands them; and the view of a newspaper, however intelligible conducted it may be, cannot possibly affect his mind.
Accordingly, a Judge in the Chancery Division starts on the footing that only in the rarest possible case is it likely that the publication by a newspaper of such a statement as I have here to consider will affect the course of justice in the sense of influencing, altering or modifying the judgment or judgments which the Court will ultimately have to deliver;" But our Courts, are Courts, which administer both law and equity.
Assuming that a Judge holding a trial is not likely to, be influenced by comments in newspapers or by other media mass communication may be ruled out though it would difficult to be dogmatic on that matter also the Court is entitled ' and is indeed bound to consider, especially in our country where personal conduct is largely influenced by opinion of the members of the caste, community, occupation or profession to which he belongs, whether comments holding up a party to public ridicule, or which prejudices society against him may not dissuade him from prosecuting his proceeding or compel him to compromise it on terms unfavorable to himself.
That is a real danger which must be guarded against: the Court is not in initiating proceedings for contempt for abusing a party to a litigation merely concerned with the impression on the Judge 's mind even on the minds of witnesses for a litigant, it is also concerned with the probable effect on the conduct of the litigant and persons having similar claims.
In Regina vs Duffey and others Ex Parte Nash(1) the Court of Appeal in England had to consider the question whether comments made upon a person after his conviction and before appeal was heard may be regarded as contempt of Court.
Lord Parker, C.J., observed: "Even if a Judge who 'eventually sat on the appeal had seen the article in question and had remembered its contents, it is inconceivable that he would be influenced consciously or unconsciously by it.
A Judge is in a very different position to a juryman.
Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case.
This, indeed, happens daily to Judges on Assize.
This is all the more so in the case of a member of the Court of Criminal (1) 662 Appeal, who, in regard to an appeal against conviction is dealing almost entirely with points of law,.
and who, in the case of an appeal against sentence is considering whether or not the sentence is correct in principle.
" This may be true when a Court of Appeal determines questions of law only or the appeal is confined to questions of sentence, but where a proceeding which is tried on evidence in the Court ' of First Instance, or in the Court of Appeal on questions of fact as well as of law, it would be an over statement to assert that a Judge may not be influenced even "unconsciously" by what he has read in newspapers.
No distinction is, in our judgment, warranted that comment on a pending case or abuse of a party may amount to contempt when the case is triable with the aid of a jury, and not when it is triable by a Judge or Judges.
Ordinarily a Court will not initiate proceedings for commitment for contempt where there is a mere technical contempt.
In Legal Remembrancer vs Matilal Ghose and Others(1) it was observed by Jenkins, C.J., that proceedings for contempt shotfid be initiated with utmost reserve and no court in the due discharge of its duty can afford to disregard them.
It was also observed that jurisdiction to punish for contempt was arbitrary, unlimited and uncontrolled and should be exercised with the greatest caution: that this power merits this description will be realised when it is understood that there is no limit to the imprisonment that may be inflicted or the fine that may be imposed save the Court 's unfettered discretion, and that the subject is protected by no right of general appeal.
We may at once observe that since the enactment of the Contempt of Courts Act 12 of 1926 and Act 32 of 1952 the power of the Court in imposing punishment for contempt of court is not an uncontrolled or unlimited power.
That, however does not justify the court in commencing proceedings without due caution and reserve.
But Banerjee, 1., who must be conversant with local conditions was of the view that action of the Chief Minister was likely to interfere with the course of justice for it was likely to have "baneful effects" upon the petitioners their cause and upon persons having a similar cause, and sitting in appeal we do not think that we can hold that he took an erroneous view of his power or of the tendency of the speech, which he has characterised as having "baneful effects".
Banerjee, J, has ultimately treated the contempt as technical for he has not imposed any substantive sentence, not even a warning.
He has merely expressed his displeasure.
The speech was ex facie calculated (1) I.L.R. 662 to interfere with the administration of justice.
In the circumstances the order of Banerjee, J., observing that the Chief Minister had acted improperly and expressing disapproval of the action does not call for any interference by this Court.
The appeal is dismissed.
[/INST]The West Bengal Government issued an Order under Rule 125 of the Defence of India Rules, placing certain restrictions upon the right of persons carrying on business in milk products.
The validity of this Order was challenged by a writ petition.
After Rule had been issued on the petition and served on the State Government, the State Chief Minister broadcast a speech sreking to justify the propriety of the Order.
The High Court issued a Rule requiring the Chief Minister to show cause why he should not be committed for contempt of Court.
It was contended on behalf of the Chief Minister that he had come to learn of certain persons propagating the view that the Order would not only have the effect of reducing the supply of milk, but also of displacing numerous persons from work and causing unemployment; that attempts were made to commence a political agitation against the Order; and that with a view to agitation it was considered that the Chief Minister was under a duty to explain to the people the policy underlying, and the reasons for promulgating the Order.
The High Court held that the speech amounted to contempt of Court; that it was contumacious in that it was likely to have a baneful effect upon the petitioners who had challenged the validity of the Order, and their cause and upon other persons having a similar cause; and that it was likely to interfere with the administration of justice.
The High Court therefore expressed disapproval of the Chief Minister 's conduct.
In appeal to this Court it was contended, inter alia, on behalf of the Chief Minister that the High Court erred in holding that the Chic/ Minister committed contempt of court because there was no finding that the contempt was intentionally committed; no real prejudice was caused either in the mind of the Judge or to the cause of the petitioners; that the speech contained no direct reference to any pending proceedings and that the Chief Miraster was under a duty to make the speech to instruct the public about the true state of affairs.
HELD :The speech was ex facie calculated to interfere with the administration of justice.
The High Court 's orders observing that the Chief Minister had acted improperly and expressing disapproval of his action was correct and did not call for any interference, by this Court.
Gray, at p. 40 and Legal Remembrancer .v.
Matilal Ghose and Others, I.L.R. ; referred to.
The, question in all cases of comment on pending proceedings is not whether ' the publication does interfere, but whether it tends to interfere, with the due course of justice.
The question is not so much of the in tention.
of the contemner as whether it is calculated to interfere with the 650 administration of justice.
If, therefore, the speech broadcast by the Chief Minister was calculated to interfere with the course of justice, it was liable to be declared a contempt of the Court even assuming that he had not intended thereby to interfere with the due course of justice.
[654 B] Debi Prasad Sharma and Ors.
vs The King Emperor, L.R. 70 I.A. 216 at p. 224; Saibal Kumar Gupta and Ors.
B.K. Sen and Anr., ; ; and Arthur Reginald Perera vs The King, ; referred to.
The Chief Minister in his speech characterised the preparation of food with milk in West Bengal as tantamount to a crime.
He also announced his version about the validity of the order, the reasons why it was promulgated, and asserted that it was an order made bona fide and in the interest of the public so that those who resisted it were acting contrary to the public interest.
These were the very questions that had to be determined by the Court.
The statements in the Chief Minister 's broadcast were therefore prims facie calculated to obstruct the administration of justice, since they were likely to create an atmosphere of prejudice against the petitioners and also to deter other persons having similar claims from approaching the Court.
It could not be held that when the trial of a case is held by a Judge without the aid of a jury, no contempt by interfering with the administration of justice may be committed.
The foundation of the jurisdiction lies not merely in the effect which comments on a pending proceeding may have upon the mind of the jury, but the consequences which result from the conduct of the contemner, who by vilification or abuse of a party seeks to hold him up to public ridicule, obloquy, censure or contempt or by comment on his case seeks to prejudice the issue pending before the Court.
[658 H; 659 A, B] The William Thomas Shipping Co., In re.
H.W. Dhillan & Sons Ltd. vs The Company, In re, Sir Robert Thomas and Others, and Regina vs Duffey and others Ex Parte Nash, ; referred to.
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<s>[INST] Summarize the judgementminal Appeal No. 141 of 1958.
Appeal by special leave from the judgment and order dated November 28, 1957, of the Madhya Pradesh High Court in Criminal Revision No. 78 of 1957, arising out of the judgment and order dated August 21, 1957, of the Court of Special Judge at Gwalior in File No. 2/57 Special Case.
G. C. Mathur and R. H. Dhebar, for the appellant.
The respondent did not appear.
February 3.
The Judgment of the Court was delivered by SUBBA RAO, J.
This is an appeal by special leave against the, Judgment of the High Court of Madhya Pradesh at Jabalpur directing the Special Judge, Indore, to order the Deputy Superintendent of Police to carry on the investigation afresh.
The facts are simple.
One Shri Mohinder Nath Bhalla was the manager of Daisy Sewing Machine Co. Ltd., Bhopal.
On January 11, 1955, between 12 and 1 p. m., he contacted the Sub Inspector of Police, Special Police Establishment, Gwalior, and gave him the following information: The company had opened their stall in the Gwalior Mela and he (Shri Bhalla) had to book empty wooden cases of machine and machine parts from Gwalior Mela, to Now Delhi.
When lie went to the station to enquire for booking the said cases, the Station Master demanded annas ten for each case as illegal gratification, but he did not agree to it.
Subsequently, the Assistant Station Master agreed to accept annas eight for each case and asked him to bring the wooden cases between 2 and 4 p. m. on the same day, i.e., January 11, 1955.
On this allegation lie requested the police to take action " to stop the said sort of 204 corruption ".
The police officer went along with the informant to his stall at Gwalior Mela and saw the twenty wooden cases twelve big and eight small ready for booking.
The said Shri Bhalla gave the police officer a typed complaint signed by him and duly attested by two witnesses.
With the assistance of the police officer, a trap was laid.
The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses.
The said rupee notes were given to Shri Bhalla in the presence of the witnesses.
Shri Bhalla was instructed to pay the amount to the Assistant Station Master when demanded by him in such a manner that the witnesses could overhear the conversation and also see the Assistant Station Master taking the bribe.
He was also told that on his giving a signal, the police would come on the scene.
The plan was carried out in detail as agreed.
The Assistant Station Master, after some bargaining, took the bribe, and after the act of bribery was completed, Shri Bhalla gave the prearranged signal.
The Sub Inspector then went to the Station Office and disclosed his identity to the Assistant Station Master in the presence of witnesses and asked him to produce the money taken by him as bribe.
The Assistant Station Master, when questioned by the Sub Inspector, gave him his name and also produced the notes which he had kept in his pocket.
The police officer took those notes and counted them.
The numbers on those notes tallied with those noted in the memorandum.
He then searched the person of the Assistant Station Master and secured the articles found on him.
He also searched the person of Shri Bhalla and took from his shirt two currency notes, which he did not give to the Assistant Station Master, as the bargain was struck at a smaller amount, and secured the same.
The numbers of those notes also tallied with the corresponding numbers noted in the memorandum.
Thereafter, a memorandum of the articles recovered was prepared in the presence of the witnesses and was duly attested by them.
The forwarding note, together with the record copy of the 205 R/R prepared in respect of the booking of the twenty wooden cases to New Delhi, was taken possession of and another memorandum was prepared in regard to them.
An inventory of the twenty wooden cases lying on the platform near the weighing machine as booked by the Assistant Station Master was also prepared and the same was attested by the witnesses.
The Sub Inspector, having regard to the aforesaid facts, came to the conclusion that the facts disclosed offences punishable under sections 120 B and 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947), had been committed by the Assistant Station Master, Shri Mubarak Ali, and the pointsman, Shri Mool Chand, of Golakamandir railway station.
On the same day he sent a report of the aforesaid facts to the Special Police Establishment Office, Madhya Bharat.
The office registered it on January 14, 1955, in its register.
Seven days thereafter, on January 21, 1955, the Sub Inspector filed an application before the Additional District Magistrate (Judicial), Gwalior, asking for permission to investigate the offence under the aforesaid sections.
The record does not disclose what further steps were taken by the Sub Inspector after he obtained the said permission from the Additional District Magistrate.
On October 1, 1955, a charge sheet was filed before the Special Judge, Anti Corruption, Indore.
It appears from the record that soon after the case was taken up for trial, the respondent filed objections questioning, inter alia, the validity of the order of the Additional District Magistrate giving permission to the Sub Inspector to make the investigation.
But the scope of the objections is not clear as they have not been placed before us.
It appears that the Special Judge intended to take evidence on the question of delegation of power of investigation, but the prosecution applied for adjournment on the ground that an appeal had been filed in the High Court against a similar order directing the prosecution to give evidence on the said question and the same was pending there.
The learned Special Judge, though inclined not to give the adjournment, made an order giving an adjournment 206 of three weeks on December 3, 1955, on the ground that " the Special Police Establishment Office might not have any grievance on that account ".
We do not know what transpired between December 3, 1955, and the date of disposal of the objections by the Special Judge, i. e., August 21, 1957.
On August 21, 1957, the learned Special Judge made an order discharging Shri Mool Chand, the pointsman, and charging Shri Mubarak Ali, the Assistant Station Master, under section 161 of the Indian Penal Code.
By the said order the learned Judge, presumably an officer different from the one who gave the adjournment in 1955, disallowed the objection of the accused on the ground that on the date when the Magistrate gave the sanction, there were many papers in connection with a case against the accused, on observing which the Magi strate could have satisfied himself whether there was a prima facie case or not against the accused and that there was no reason to believe that at the time of giving the sanction, the Magistrate did not peruse the papers.
The accused preferred a Revision against the said order to the High Court of Madhya Pradesh.
The High Court came to the conclusion that the Sub Inspector applied for permission ten days after investigation had started and that the Magistrate did not satisfy himself that there were good and sufficient reasons for authorising the officer of a lower rank to conduct the investigation but had given the permission as a mere matter of routine.
In the result, the High Court set aside the order of the Special Judge with a direction that in order to rectify the defects and cure the illegality he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file ".
The State, preferred the present appeal against the said order of the High Court.
Learned Counsel, appearing for the State, raised before us two points: (i) the High Court was not justified in holding that the Magistrate gave the permission as a mere matter of routine without satisfying himself as to the advisability of giving such permission; (ii) the High Court was wrong in holding 207 that the investigation started ten days prior to the obtaining of permission of the Magistrate by the Sub Inspector.
To appreciate the first contention, it is necessary to set out some of the relevant provisions of The Prevention of Corruption Act, 1947 (2 of 1947), hereinafter referred to as the Act.
Section 3 (as it stood before the Prevention of Corruption (Amendment) Act, 1955 (50 of 1955): "An offence punishable under section 161 or section 165 or section 165A of the Indian Penal Code (Act 45 of 1860) shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898 (Act 5 of 1898), notwithstanding anything to the contrary contained therein ".
Section 4. " (1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code (Act 45 of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate ".
The Act was passed, as the preamble indicates, to make more effective provisions for the prevention of bribery and corruption among public servants.
It introduced a definition of the offence of criminal misconduct in discharging an official duty and new rules of presumption against accused in the case of the said offence.
But in the year 1952, by Act 59 of 1952, presumably on the basis of the experience gained, section 5A was inserted in the Act to protect the public servants against harassment and victimization.
If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to 208 discharge their duties free from false, frivolous and malicious accusations.
To achieve this object, sections 5A and 6 introduced the following two safeguards: (1) no police officer below the rank (a) in the presidency towns of Madras and Calcutta, of an assistant commissioner of police, (b) in the presidency town of Bombay, of a superintendent of police and (c) elsewhere, of a deputy superintendent of police, shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub section
(2) of section 5 of the Act, without the order of a presidency magistrate or a magistrate of the first class, as the case may be, or make any arrest therefor without a warrant see section 5A; (2) no court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under section 5(2) of the Act, alleged to have been committed by a public servant, except with the previous sanction, of the appropriate Government see section 6.
These statutory safeguards must be strictly complied with, for they were conceived in public interests and were provided as a against frivolous and vexatious prosecutions.
While in the case of an officer of assured status and rank, the legislature was prepared to believe them implicitly, it prescribed an additional guarantee in the case of police officers below that rank, namely, the previous order of a presidency magistrate or a magistrate of the first class, as the case may be.
The magistrate 's status gives assurance to the bonafide8 of the investigation.
In such circumstances, it is self evident that a magistrate cannot surrender his discretion to a police officer, but must exercise it having regard to the relevant material made available to him at that stage.
He must also be satisfied that there is sufficient reason, owing to the exigencies of administrative convenience, to entrust a subordinate officer with the investigation.
This Court in H. N. Rishbud and Inder Singh vs The State of Delhi (1) emphasised the necessity to adhere strictly to the provisions of section 5A of the Act.
Jagannadhadas, J., who delivered the judgment of the Court, observed at p. 1159: (1) ; 209 " When, therefore, the Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Act, by making them cognisable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank.
Having regard therefore to the peremptory language of subsection (4) of section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory ".
After adverting to the argument advanced on behalf of the State,learned Judge closed the discussion thus at p. 1162: "We are, therefore clear in our opinion that section 5(4) and provisoto section 3 of the Act and the corresponding section 5 A of Act LIX of 1952 are mandatory and not directory and that the investigation conducted inviolation thereof bears the stamp of illegality".
This Court again considered the scope of section 6 of the Act in Biswabhusan Naik vs The State of Orissa (1).
One of the questions raised there was that the sanction given by the Government was invalid.
In rejecting that contention Bose, J., observed at p. 95 : " The judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, but the principles apply here.
It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering.
The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an (1)[1955] 1 S.C.R. 92. 27 210 omission to do so is not fatal so long as the facts can be, and are provided in some other way ".
While the former decision emphasises the importance of the protection given by the Act to public servants against harassment, the latter decision points out the desirability of giving all the necessary facts in an order giving sanction the same applies to an order of a Magistrate and also the necessity of proof aliunde of the said facts in case the facts are not disclosed in the sanction.
Applying the said two principles, we must hold that in a case where an officer other than the designated officer, seeks to make an investigation, he should get, the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission.
For one reason or other, if the said salutary practice is not adopted in a particular case, it is the duty of the prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate police officer to investigate the case.
In the present case, though objection was taken by the accused at the earliest stage in 1955 on the ground that the order giving permission was invalid no attempt was made by the prosecution, though years have elapsed between the date of the petition and that of the order of the Sessions Judge, to adduce any evidence to support the contention that the Magistrate gave the permission to the Sub Inspector only after satisfying himself on the advisability of doing so on the material placed before him.
The only material that was placed before the Sessions Judge was the application filed by the Sub Inspector before the Magistrate seeking the said permission and the order made by him thereon.
In that application the Sub Inspector stated that he had been deputed to investigate the case and therefore permission might be given to him to do so under section 5 A of the Act.
On that application, the Magistrate passed the order " permission given ".
Neither the application 211 nor the order made thereon discloses that any material was placed before the Magistrate on the basis of which he gave the permission.
Ex facie, it appears to us, just like it appeared to the High Court, that the Magistrate did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section.
A request was made before the High Court that an opportunity should be given to the prosecution to enable them to produce the necessary evidence to support the order of the Magistrate.
But the learned Judge of the High Court rightly did not accede to that belated request.
We, therefore, without any hesitation, agree with the High Court that the provisions of section 5A of the Act have not been strictly complied with in this case.
In this view no other question arises for consideration.
But as the learned Counsel appearing for the State contended that the observations of the learned Judge of the High Court that permission of the Magistrate was obtained ten days after the investigation was started was wrong, it would be as well that we considered the argument briefly.
Section 4(1) of the Code of Criminal Procedure defines " investigation as to include all the proceedings under that Code for the collection of evidence conducted by the police officer or other persons other than a Magistrate who is authorised by the Magistrate in this behalf.
Chapter XIV of the Code prescribes the procedure for investigation.
Investigation starts after the police officer receives information in regard to an offence.
Under the Code " investigation consists generally of the following steps: (i) proceeding to the spot; (ii) ascertainment of the facts and circumstances of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if 212 the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under section 173."See H. N. Rishbud and Inder Singh vs The State of Delhi (1).
From the narration of facts given supra, it would be seen that in the present case Shri Bhalla gave information to the Sub Inspector on January 11, 1955, as regards the attempt by the Station Master as well as the Assistant Station Master to take bribe from him.
Under section 5 of the Act, attempt to obtain from any person for himself or for any other person any gratification is in itself an offence and therefore the information certainly related to an offence.
Thereafter, the Sub Inspector, after assisting Shri Bhalla to trap the accused, came on the scene, questioned the accused, searched his person and recovered the marked notes and other articles from him ; he searched the person of the informant and recovered the other notes marked but not given to the accused ; he took possession of the twenty wooden boxes intended to be booked and the forwarding note together with the record copy of the R/R; he got prepared relevant memoranda for the aforesaid recoveries and got them duly attested by witnesses; and thereafter on the basis of his investigation he sent a report to the Special Police Establishment Office, Indore.
We do not know on the material placed before us what further things he did in the matter of investigation between the 14th and 21st when be obtained the permission of the District Magistrate.
In the circumstances, we must hold, agreeing with the High Court that the investigation in this case was started by the Sub Inspector on the 11th, i.e., ten days prior to his obtaining permission of the Magistrate.
The appeal fails and is dismissed.
Appeal dismissed.
(1)[1955] 1 S.C.R. 1150.
[/INST]The appellant was initially appointed as Inspector of Motor Vehicles and was promoted as Assistant Regional Trans port Officer In 1976, when the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 were in force.
Karnataka Civil Services (General Recruitment) Rules, 1977 came into being thereafter.
The appellant was promoted as Regional Transport Officer in 1981.
The General Rules of 1977 were amended in 1982 and sub rule (2) of Rule 3 was inserted, and as per the new Rule 3(2) the second Respondent was promoted as Deputy Commissioner of Transport on seniority cum merit basis.
The appellant filed an Application before the State Administrative Tribunal questioning the promotion of the second Respondent on the ground that promotion to the post of Deputy Commissioner of Transport should have been made by selection and not on seniority cure merit basis.
He also sought a declaration that the promotion of Respondent No. 2 was illegal and Respondent No.1 be directed to consider the case of the appellant for promotion to the post of Deputy Transport Commissioner with all consequential benefits.
The Tribunal dismissed the application on 388 the ground that Rule 3(2) of the General Rules, which was introduced later, had the effect of overriding the earlier special Rules, and hence the promotion made as per Rule 3(2) of the General Rule was valid.
Aggrieved by the Tribunal 's order, the appellant pre ferred the present appeal, by special leave.
On behalf of the appellant it was contended that the Special Rules were exclusively meant to govern the recruit ment and promotion of officers of various cadres of the Motor Vehicles Department and the General Rules which gener ally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they were not meant to be so since the Special Rules were not superseded and were very much in force.
The Respondent State contended that the non obstante clause in Rule 3(2) of the General Rules which was intro duced later clearly indicate the intention of the Legisla ture to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Com missioner of Transport could only be on the basis of senior ity cum merit and not by selection.
Allowing the appeal, this Court, HELD: (By the Court) Sub rule (2) of Rule 3 of Karnataka Civil Services (General Recruitment) Rules, 1977 (General Rules) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (Special Rules).
[400 D,E] Per Majority (By Reddy, J. Kuldip Singh, .1.
concurring) 1.
Examining the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear.
It is not enacted to supersede the Special Rules.
[403 G] 2.1 The non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict.
But the non ob stante clause need not necessarily and always be co exten sive with the operative part so as to have the effect of cutting down 389 the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation.
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules.
Courts should examine every word of a statute in its context and use it in its widest sense.
[402 E G; 403 B] 2.2 There should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause.
[403 G H] 23 Even the General Rules of which Rule 3(2) forms a part provide for promotion by selection.
As a matter of fact Rules 1(3)(a), 3(1) and 4 also provide for the enforceabili ty of the Special Rules.
The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the meth ods of recruitment shall be as specified in the Special Rules, if any.
The object of these Rules is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular depart ment.
In such a situation both the Rules including Rules 1(3)(a), 3(1) and 4 of General Rules should be read togeth er.
If so read it becomes plain that there is no inconsist ency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules.
The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves.
The amendment cannot be read as abrogating all other Special Rules in respect of all departments.
[403 H; 404 A D] 2.4 Where there are no special rules to naturally the General Rules would be applicable.
Just because there is a non obstante clause in Rule 3(2) it cannot be interpreted that the said ammendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out.
[404 D E] 390 Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and Ors., AIR 1966 SC 1931; Justiniane Augusto De Piedade Barre to vs Antonic Vicente Da Fonseca and Others etc. ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Eileen Louise Nicolle vs John Winter Nicolle, (1922) I AC 284; In Re Chance, ; Kunter vs Phillips, , referred to.
There is no doubt that a later statute may repeal an earlier one either expressly or by implication.
In the instant case there is no express repeal of the Special Rule providing for promotion by selection.
There is no patent inconsistency between the General and Special Rules but on the other hand they co exist.
Therefore, there is no scope whatsoever to infer the repeal by implication.
[405 B,F] Aswini Kumar Ghosh and Ant.
vs Arabinda Bose and Ant, ; ; The Dominion of India (Now the Union of India) and Anr.
vs Shrinbai A. Irani and Anr, ; ; Union of India andAnother vs G.M. Kokil and Ors. ; Chandavarkar Site Ratna Rao vs
Ashalata section Guram; , ; State of West Bengal vs Union of India, [1964] 1 SCR 371; Reserve Bank of India etc.
vs Peerless General Finance and Investment Co. Ltd. & Ors, ; ; Municipal Council Palai vs T.J. Joseph, ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Maxwell on The Interpretation of Statutes, Eleventh Edition page 168, relied on.
The Government is directed to consider the case of the appellant for promotion to the post of Deputy Commis sioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976.
[405 F G] Per Yogeshwar Dayal, J. (dissenting): 1.
It is clear from Rule 1 (3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State.
A perusal of different rules in the General Rules makes it clear that the 391 general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruit ment relating to different departments.
It would be impossi ble to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made.
Thus Rule 1(3) of the General Rules which accepted the applicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself.
[410 B D; 411 G] 2.
By the wording of rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by adopting the criterion of "seniority cum merit".
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provision in the General Rules by incorporating a non obstante clause stat ing that it would apply to all services and posts not withstanding the provisions in the General Rules or in the Special Rules of the State.
[410 E G] 3.1 The selection of 'best ' very often has an element of chance which may not be very conducive to proper climate and harmony in service.
Probably because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cure merit.
There is a clear mandate of latest intention of the rule making author ity contained in Rule 3(2) of the General Rules and this must be respected by the Court.
Court is not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and imple mented even by violation of the Rule, will not be sound rule of construction of statute.
[412 D F] 3.2 It is not the function of the Court to examine the efficacy of one form of selection or the other.
It is for the recruiting authority, namely, the Government to examine it and enforce it in the way it Likes.
[413 C] 392 3.3 In the present case the respondent No. 2 was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cum merit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given by a positive mandate.
[411 G H] 3.4 As laid down by this Court in Ajay Kumar Baner jee 's case a prior special law would yield to a later gener al law if it satisfies either of the two conditions viz., that the two are inconsistent with each other;, that there is some express reference in the later to the earlier enact ment.
In the instant case, the special law contemplated promotion by 'selection ' whereas the later law, viz., Rule 3(2) of the general law contemplated promotion by seniority cum merit.
The two are inconsistent with each other and if fulfills the first condition.
Since the non obstante clause in the later general law specifically men tions its efficacy inspite of the Special Law, the second condition is also fulfilled.
Thus, in this case, the later general law prevails over the earlier Special Law, having fulfilled not one but both the conditions.
[413 F H; 414 A B] 3.5 It was for the legislature to choose the method to indicate its intention.
The Courts should not defeat their intention by over looking it.
Respondent No. 2 has been selected for promotion by following the General Rules amend ing the Special Rules and it was strictly in accordance with law.
[414 C D] Ajay Kumar Banerjee and Ors.
vs Union of India and Ors., , relied on.
Maharaja Pratap Singh Bahadur vs Man Mohan Dev, AIR 1966 SC 1931; Muniswamv vs Superintendent of Police, ILR 1986 Karnataka 344, referred to.
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<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) Nos.
5228 and 5286 of 1977.
From the Judgment and order dated 8 8 1977 of the Punjab and Haryana High Court in F.A.O. No. 81 and 82 of 1977.
P. P. Malhotra and R. N. Dikshit for the Petitioner.
section K. Gambhir for the Respondent.
The order of the Court was delivered by KRISHNA IYER, J. An explosive escalation of automobile accidents, accounting for more deaths than the most deadly diseases, has become a lethal phenomenon on Indian Roads everywhere.
The jural impact of this tragic development on our legislatures, courts and law enforcing agencies is insufficient, with the result that the poor, who are, by and large, the casualty in most of these cases, suffer losses of life or limb and are deprived of expeditious legal remedies in the shape of reasonably quantified compensation promptly paid and this, even after compulsory motor insurance and nationalisation of insurance business.
The facts of this special leave petitions, which we dismiss by this order, raise two serious issues which constrain us to make a speaking order.
The first deals with legal 696 rights, literacy in the case of automobile accidents and the processual modalities which secure redressal of grievances.
The second relates to the consequences of negligence of counsel which misleads a litigant into delayed pursuit of his remedy.
Medieval roads with treacherous dangers and total disrepair, explosive increase of heavy vehicles often terribly overloaded and without cautionary signals, reckless drivers crazy with speed and tipsy with spirituous potions, non enforcement of traffic regulations designed for safety but offering opportunities for systematised corruption and little else and, as a cumulative effect, mounting highway accidents demand a new dimension to the law of torts through no fault liability and processual celerity and simplicity in compensation claims cases.
Social justice, the command of the Constitution is being violated by the State itself by neglecting road repairs, ignoring deadly overloads and contesting liability after nationalising the bulk of bus transport and the whole of general insurance business.
The jurisprudence of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.
In the present case, a doctor and his brother riding a motor cycle were hit, by a jeep driver and both were killed.
The fatal event occurred in November 1971 but the Motor Accident Claims Tribunal delivered judgment five years later awarding sums of Rs. 80,000/ and Rs. 73,500/ to the two sets of claimants.
The delay of five years in such cases is a terrible commentary on the judicial process.
If only no fault liability, automatic reporting by the police who investigate the accident in a statutory proforma signed by the claimants and forward to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court fees and the sophisticated rules of evidence and burden of proof were introduced easy and inexpensive if the State has the will to help the poor who mostly die in such accidents law 's delays in this compassionate jurisdiction can be banished.
Social justice in action is the measure of the State 's constitutional sensitivity.
Anyway, we have made these observation hopefully to help focus the attention of the Union and the States.
The nationalised insurance company appealed to the High Court against the award.
We have no doubt that the finding on both the 697 culpability and the quantum as rendered by the trial court are correct.
But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under section 5 of the Limitation Act.
The Accident Claims Tribunal pronounced its award on September, 15, 1976, after making the necessary computations and deductions.
The appeal had to be filed on or before January 19, 1977 but was actually filed 30 days later.
Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation.
He had intimated the parties accordingly with the result that the petitioner was misled into instituting appeal late.
The High Court took the view that the lawyer 's ignorance about the law was no ground for condonation of delay.
Reliance was placed on some decisions of the Punjab High Court and there was reference also to a ruling of the Supreme Court in ; The conclusion was couched in these words: "The Assistant Divisional Manager of the Company appellant is not an illiterate or so ignorant person who could not calculate the period of limitation.
Such like appeals are filed by such companies daily.
The facts of this case clearly show, as observed earlier, that the mistake is not bonafide and the appellant has failed to show sufficient cause to condone the delay.
" We are not able to agree with this reasoning.
A company relies on its Legal Adviser and the Manager 's expertise is in company management and not in law.
There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel.
Of course, if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable.
The correct legal position has been explained with reference to the Supreme Court decision in a judgment of one of us in AIR 1971 Ker. 211: "The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground.
It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose such as laches 698 on the part of the litigant or an attempt to save limitation in an underhand way.
The High Court unfortunately never considered the matter from this angle.
If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation." "The High Court took the view that Mr. Raizada being an Advocate of 34 years ' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under Section 39(1) of the Punjab Courts Act and therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under Section 5 of the Limitation Act.
The Supreme Court upset this approach." "I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are some times wrong.
An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice.
The court must of course, see whether in such cases there is any taint of mala fides or element of recklessness or ruse.
If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered.
The State has not acted improperly in relying on its legal advisers.
" We have clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently.
If Legal Adviser 's opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise.
Indeed Government, a large litigant in this country, may find itself in difficulty.
That is the reason why we have chosen to explain at this length the application of section 5 vis a vis counsel 's mistake.
This does not automatically secure a visa for the petitioner into this Court under Article 136.
There must be manifest injustice or gross misappreciation or perversity in factual findings.
We have 699 examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner.
He has hardly convinced us that the merits of the case call for any intervention at all.
In this view we are constrained to dismiss the Special Leave Petitions now that we have expressed ourselves or both the points dealt with above.
S.R. Petitions dismissed.
[/INST]The respondent company who was a manufacturer of air compressors and garage equipment had its factory at Faridabad (in the State of Haryana) and its head office in Delhi (Union Territory of Delhi).
The head office drew the production programme and advised the factory to manufacture the goods in accordance therewith.
After the goods were so manufactured in the factory they were collected by the head office and brought to Delhi and despatched to various customers whether outside Delhi or in Delhi.
The price of goods was received at the head office.
In other words excepting the manufacture of goods at the factory all other activities, were carried out from the head office in Delhi.
In respect of sale of goods manufactured at Faridabad the respondent company filed sales tax returns with the sales tax authorities at Delhi on the ground that the sales were effected from Delhi by the head office and that they were intra state sales within the territory of Delhi and accordingly paid sales tax at Delhi.
In November, 1965, however, the sales tax authorities of Haryana demanded payment of sales tax under the East Punjab General Sales Tax, Act, 1948 for the period commencing from April 1, 1961 and ending with the year 1964 65 pointing out that the sales effected were inter state sales liable to be assessed by them under the .
In its writ petition the respondent company alleged that since all its activities were being carried on by or through the head office in Delhi and no sales were effected by or from the factory at Faridabad sales tax was paid by it in Delhi and since the sales tax authorities in Haryana were demanding payment of Central Sales Tax in respect of the same transaction the High Court might resolve the controversy.
The High Court held that the sales fell under section 3(a) of the and were liable to be assessed to inter state sales tax by the Sales Tax Authorities at Faridabad and accordingly ordered that the sales tax paid by the respondent in Delhi be transferred to the Sales Tax Authorities at Faridabad.
On appeal the Union of India contended that since the situs of sale was Delhi Sales Tax was payable in Delhi.
Dismissing the appeal, 454 ^ HELD: 1 (a) The High Court was right in holding that the sales were inter state sales and that the turnover on sales was assessable to sales tax under the and that the amounts of sales tax wrongly paid in Delhi be transferred to the Sales Tax Authorities at Faridabad.
[462 A B] (b) In order that a sale may be regarded as an inter state sale it is immaterial whether the property in the goods passes in one State or another.
The question as regards the nature of the sale, that is, whether it is an inter State sale or an intra State sale does not depend upon the circumstance as to in which State the property in the goods passes.
It may pass in either and yet the sale can be an inter State sale.
[461 G H, 462 A] In the instant case the contracts of sales were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts.
This, therefore, is not that type of case in which goods are manufactured in the general course of business for being sold as and when offers are received by the manufacturer for their purchase.
Contracts of sales were finalised in the instant case at Delhi and specific goods were manufactured at Faridabad in pursuance of those contracts.
These were "future goods" within the meaning of section 2(6) of the .
After the goods were manufactured to agreed specifications, they were despatched to the head office at Delhi for being forwarded to the respective customers at whose instance and pursuant to the contracts with whom the goods were manufactured.
The despatch of goods of Delhi was but a convenient made of securing the performance of contracts made at Delhi.
Thus the movement of goods was occasioned from Faridabad to Delhi as a result or incident of the contracts of sale made in Delhi.
[458 H, 459 A D (c) For the purpose of section 3(a) it is not necessary that the contract of sale must itself provide for and cause the movement of goods or that the movement of goods must be occasioned specifically in accordance with the terms of contract of sale.
[459 E] Tata Iron and Steel Co. Ltd., Bombay vs section section Sarkar & Ors., ; ; Central Marketing Co. of India vs State of Mysore, ; State Trading Corporation of India vs State of Mysore, ; Singareni Collieries Co. vs Commissioner of Commercial Taxes, Hyderabad, ; ; K. G. Khosla & Co. vs Dy.
Commr.
of Commercial Taxes; , ; Oil India Ltd. vs The Superintendent of Taxes & Ors., ; ; followed.
Tata Eng. & Locomotive Co. Ltd. vs The Asstt.
Commr.
of Commercial Taxes & Anr.
, ; ; distinguished.
State of Bihar & Anr.
vs Tata Eng. & Locomotive Co. Ltd.; , ; referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 755 of 1978.
Appeal by Special Leave from the Order dated 21 10 1976 of the Bombay High Court (Nagpur Bench) in S.C.A. No. 4260/76.
R.K. Garg, Edward Faleire, V.J. Francis and D.K. Garg for the Appellant.
R.P. Bhat and Girish Chandra for the Respondents.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
The appellant, Krishna Kumar, was appointed on May 30, 1966 as an Apprentice Mechanic (Electrical) after selection by the Railway Service Commission and on the completion of his training period, he was appointed as a Train Examiner (Electrical).
On July 11, 1974 he was appointed as a Train Lighting Inspector, Nagpur under an order passed by the Chief Electrical Engineer.
That the order of appointment was made by the C.E.E. is undisputed and indeed there can be no controversy over it.
The list of officer declared to be heads of departments shows that Chief Electrical Engineers are heads of their departments.
By an order dated August 31, 1976, the appellant was removed from service by respondent 1, the Divisional Assistant Engineer, Central Railway, Nagpur.
The appellant thereupon filed a Writ Petition (No. 4260 of 1976) in the Bombay High Court to challenge the order of removal.
A Division Bench of the Nagpur Bench of the High Court dismissed the Writ Petition summarily on October 21, 1976.
Being aggrieved by that order the appellant has filed this appeal by special leave.
The Special Leave Petition came up before this Court on February 22, 1978 when a Bench consisting of Justice V.R. Krishna Iyer and Justice Jaswant Singh adjourned the petition for four weeks in order to enable the respondents to file an affidavit stating as to (i) who appointed the petitioner, with special reference to the designation of the Officer who made the order of appointment and (ii) who removed the petitioner from service, with special reference to the designation of that Officer.
Pursuant to that direction, two affidavits were filed by Shri S.P. Sarathy, Divisional Assistant Electrical Engineer, Central Railway, Nagpur.
The petitioner filed his rejoinder affidavit on February 20, 1978.
On a consideration of these affidavits the Court on April 3, 1978 granted special leave to the appellant to file this appeal.
52 Article 311 (1) of the Constitution provides that no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
The simple question for determination is whether, as alleged by the appellant, he was removed from service by an authority subordinate to that which had appointed him.
The relevant facts are but these and these only: The appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer, Central Railway, Nagpur.
The narrow question, therefore, for consideration is whether the Divisional Assistant Electrical Engineer is subordinate in rank to the Chief Electrical Engineer.
None of the affidavits filed by Shri Sarathy, who passed the order of removal says that the post of Divisional Assistant Electrical Engineer is equivalent to that of the Chief Electrical Engineer in the official hierarchy.
That the former is not higher in rank than the latter is self evident.
In the circumstances, it seems clear that the appellant was removed from service by an authority which is subordinate in rank to that by which he was appointed.
In defence of the legality of the order of removal, counsel for the respondents relies on paragraph 2 of respondent 1 's affidavit, dated January 7, 1978, wherein he has stated that the power to make appointments to the post of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer.
It is urged that since the Div.
Asstt.
Elect.
Engineer has been given the power to make appointments to the post of the Train Lighting Inspector, he would have the power to remove any person from that post.
We cannot accept this contention.
Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment.
It is at that point of time that the constitutional guarantee under article 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him.
The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him.
On the date of the appellant 's appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment.
He cannot have, therefore, the power to remove him.
53 Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate.
An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another.
The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter 's power to make appointments to certain posts has been delegated to him.
Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellant 's appointment, it must be held the respondent 1 had no power to remove the appellant from service.
The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution.
For these reasons we allow the appeal, set aside the order passed by the High Court and hold that the order dated August 31, 1976 passed by respondent 1 removing the appellant from service is unconstitutional and, therefore, of no effect.
The appellant must accordingly be deemed to continue in service until, if so advised, the government takes appropriate steps to bring his service to an end.
Respondents will pay the costs of the appeal to the appellant.
V.D.K. Appeal allowed.
[/INST]The appellant filed a suit against his employer, the respondent, for a declaration that he had been removed from service illegally and without any reason and that he should be reinstated in his former job with due benefits and advantages.
He also claimed compensation.
The trial court held that the dispute raised by the appellant was in the nature of an industrial dispute and that the civil court had no jurisdiction to try the same.
The First Appellate Court allowed the appeal and held that the dispute raised was of a civil nature and the case was cognizable by a civil court.
In the respondent 's second appeal, the High Court agreed with the view of the trial court and held that the appellant had not claimed damages by pleading wrongful dismissal and breach of the contract of his service and that the facts pleaded in the plaint showed that the dispute was an industrial dispute cognizable only by an industrial court and not by a civil court.
In the further appeal to this Court the point for consideration was whether on the facts pleaded by the appellant the dispute was an industrial dispute cognizable only by an industrial court and not by a civil court.
Allowing the appeal, ^ HELD:(1) It is not quite correct to say that the suit as filed by the appellant is not maintainable at all in a civil court.
The main reliefs asked for by the appellant which when granted will amount to specific performance of the contract of service and, therefore, they cannot be granted.
But the appellant in the alternative has also claimed for awarding compensation to him.
[127A C] (2) Reading the plaint as a whole, it can legitimately be culled out that the appellant had made out a case that he was wrongfully dismissed from service.
This relief could be granted by the civil court if it found that the plaintiff 's case was true.
The High Court was not right in saying that no such case had at all been made in the plaint.
To this limited extent the matter could be examined by the civil court.
[127D E] Dr. section B. Dutt vs University of Delhi, ; ; section R. Tewari vs Distt.
Board Agra & Anr., ; ; Indian Airlines Corp. vs Sukhdeo Rai, , Premier Automobiles Ltd. vs Kamlekar Shantaram Wadke of Bombay & Ors., ; ; referred to.
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<s>[INST] Summarize the judgementCriminal Appeal No. 5 of 1951.
Appeal from the Judgment and Order dated 18th August, '1950, of the High Court of Judicature for Rajasthan at Jaipur (Nawal Kishore C.J. and Dave J.) in Criminal Reference No. 229 of Sambat 2005.
H. J. Umrigar for the appellant.
G. C. Mathur for the respondent.
111 1951.
September 24.
The Judgment of the Court was delivered by Bose J.
The appellant was convicted under section 7 of the Jaipur Opium Act and fined Rs. 50.
The case as such is trivial but the High Court of Rajasthan in Jaipur granted special leave to appeal as an important point touching the vires of the Act arises.
We will state the facts chronolog ically.
It is conceded that the Rulers of Jaipur had full powers of government including those of legislation.
On the 7th of September, 1922, the late Maharaja died and at the time of his death his successor, the present Maharaja, was a minor.
Accordingly, the Crown Representative appointed a Council of Ministers to look after the government and administration of the State during the Maharaja 's minority On the 11th of December, 1923, this Council passed a Resolution which purported to enact the Jaipur Opium Act, and the only question is whether the mere passing of the Resolution without promulgation or publication in the Ga zette, or other means to make the Act known to the public, was sufficient to make it law.
We are of opinion that it was not.
But before giving our reasons for so holding, we will refer to some further facts.
About the same time (that is to say, in the year 1923 we have not been given the exact date) the same Council enacted the Jaipur Laws Act, 1923.
Section 3(b) of this Act provided as follows : "3.
Subject to the prerogative of the Ruler the law to be administered by the Court of Jaipur State shall be as follows: (b) All the regulations now in force within the said territories, and the enactments and regulations that may hereafter be passed from time to time by the State and published in the Official Gazette.
" This law came into force on the 1st of November, 1924.
It is admitted that the Jaipur Opium Act was never published in the Gazette either before or after the 1st of November, 1924.
But it is contended that was 112 not necessary because it was a "regulation" already in force on that date.
The only other fact of consequence is that on the 19th of May, 1938, section 1 of the Jaipur Opium Act was amended by the addition of sub section (c) which ran as follows: "(c) It shall come into force from the 1st of September, 1924.
" The offence for which the appellant was convicted took place on the 8th of October, 1948.
Dealing first with the last of these Acts, namely the one of the 19th of May, 1938, we can put that on one side at once because, unless the Opium Act was valid when made, the mere addition of a clause fourteen years later stating that it shall come into force at a date fourteen years earlier would be useless.
In the year 1938 there was a law which required all enactments after the 1st of November, 1924, to be published in the Gazette.
Therefore, if the Opium Act was not a valid Act at that date, it could not be validated by the publication of only one section of it in the Gazette fourteen years later.
The Jaipur Laws Act of 1923 required the whole of the enactment to be published; therefore publi cation of only one section would not validate it if it was not already valid.
We need not consider whether a law could be made retroactive so as to take effect from 1924 by publi cation in 1938, though that point was argued.
That throws us back to the position in 1923 and raises the question whether a law could be brought into operation by a mere resolution of the Jaipur Council.
We do not know what laws were operative in Jaipur re garding the coming into force of an enactment in that State.
We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter.
In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge.
Natural justice requires that 113 before a law can become operative it must be promulgated or published.
It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.
It shocks his conscience.
In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way.
Promulgation or publica tion of some reasonable sort is essential.
In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette.
See footnote (a) to paragraph 776.
page 601, of Halsbury 's Laws of England (Hailsham edition), Volume VI and 32 Halsbury 's Laws of England (Hailsham edition), page 150 note (r).
But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England.
It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough.
There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.
The Act of Parliament regulating this matter is the Crown Office Act of 1877 ' (40 and 41 Victoria Ch. 41).
That Act, in addition to making provision for publication in certain official Gazettes, also provides for the 114 making of rules by Order in Council for the best means of making Proclamations known to the public.
The British Par liament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication,if an Order in Council so directs, so that the people at large may know what these special laws are.
The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council.
We take it that if these Proc lamations are not published strictly in accordance with the rules so drawn up, they will not be valid law.
The principle underlying this question has been judi cially considered in England.
For example, on a somewhat lower plane, it was held in Johnson vs Sargant (1) that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is Stressed.
The difference is obvious.
Acts of the British Parliament are publicly enacted.
The debates are open to the public and the Acts are passed by the accredited representa tives of the people who in theory can be trusted to see that their constituents know what has been done.
They also re ceive wide publicity in papers and, now, over the wireless.
Not so Royal Proclamations and Orders of a Food Controller and so forth.
There must therefore be promulgation and publication in their cases.
The mode of publication can vary; what is a good method in one country may not neces sarily be the best in another.
But reasonable publication of some sort there must be.
Nor is the principle peculiar to England.
It was ap plied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their (1) ; 115 promulgation can have been known." So also it has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules.
See, for example, Crown vs Manghumal Tekuml(1), Shakoor vs King Emperor (2) and Babulal vs King Emperor (3).
It is true none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is rounded on natural justice.
The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right.
It was brought into being by the Crown Representa tive, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers.
We are enti tled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share.
We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.
It is necessary to consider another point.
It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations then in force from the necessity of publication in the Gazette.
That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law.
The appeal succeeds.
The conviction and sentence are set aside.
The fine, if paid, will be refunded.
Appeal allowed.
Agent for the re spondent: P.A. Mehta.
(1) I.L.R. 1944 Karachi Nag. 762.
[/INST]The appellant as the proprietor of Nada un Jagir sued to establish his title to chil (pine) trees standing on lands within the Jagir but belonging to the respondents, on the ground that the trees belonged to him as ala malik (superior landlords and not to the respondents who were only adna maliks (inferior landlords).
The Jagir originally formed part of the territory belonging to the rulers of Kangra who were Sovereigns entitled to the chil trees.
In 1827.
28 Maharaja Ranjit Singh conquered the territory and granted Nadaun as Jagir to Raja Jodhbir Chand who was the illegitimate son of Raja Sansar Chand, the last independent ruler of Kangra.
In 1846 as a result of the first Sikh War the territory came under the dominion of the British,.
who granted a Sanad in favour of Raja Jodhbir Chand in recognition of his services.
After the second Sikh War, the British granted a fresh Sanad in respect of the Jagir of Nadaun in 1848.
Subsequent to the grant, there were settlements in 1892 93 (O 'Brien 's Settlement), 1899 1900 (Anderson 's Settlement) and 1910 1915 (Settlement of Messrs Middleton and Shuttleworth), and there were some entries in the Wajib ul arz supporting the title of the Raja to the chil trees.
The appellant who is a direct lineal descendant of Raja Jodhbir Chand claimed title to the trees, firstly, as the representative of the independent Kangra rulers, secondly, on the basis of the grant given by the British Government and, thirdly,on the strength of the entries in the Wajib ul arz.
Held:(1) The Sovereign right of the independent Kangra rulers Lo chil trees passed by conquest to the Sikh rulers and subsequently to the British; Raja Jodhbir Chand was only a Jagirdar under the Sikhs and the British, and the appellant could not therefore lay claim to the chil trees on the basis of the Sovereign right of the in.
dependent rulers.
(2)The grant of 1848 on its true construction was primarily an assignment of land revenue and whatever other rights might have been included, the right to all chil trees on the proprietary and cultivated lands of the respondents was not within the grant.
890 It is well settled that the general rule is that grants made by the Sovereign are to be construed most favourably for the Sovereign; but if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect, and the operative part, if plainly expressed, must take effect notwithstanding qualifications in the recitals.
In cases where the grant is for valuable consideration it is construed in favour of the grantee, for the honour of the Sovereign, and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for, the honour of the Sovereign ought to be more regarded than the Sovereign 's profit.
(3)Wajib ul arz or village administration paper is a record of existing rights not expressly provided for by law and of customs and usage regarding the rights and liabilities in the estate, and though under section 44 of the Punjab Land Revenue Act, 1887, it is presumed to be true, it is not to be used for the creation of new rights and liabilities.
Entries in the wajib ul arz with regard to the right of the Raja in respect of chil trees standing on the cultivated and proprietary lands of the adna maliks, did not show any existing custom or usage, of the village, the right being a Sovereign right, and the appellant could not rely on the said entries as evidence of a grant or surrender or relinquishment of a Sovereign right by Government in his favour.
The expressions "ala malik" and "adna malik" explained in the context of the Settlement reports relating to Nadaun Jagir.
Venkata Narasimha Appa Bow Bahadur vs Rajah Narayya Appa Bow Bahadur ([1879] L.R. 7 I.A. 38), Dakas Khan vs Ghulam Kasim Khan (A.I.R. and Gurbakhsh Singh vs Mst.
Partapo ([1921] I.L.R. , referred to.
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<s>[INST] Summarize the judgementminal Appeal No. 215 of 1963.
Appeal from the judgment and order dated April 30, 1963 of the Madhya Pradesh High Court in Criminal Revision No. 24 of 1963.
Ravinder Narain, O.C. Mathur and J. B. Dadachanji, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Station House Officer, Gharsiwa filed an informa tion in the Court of the Magistrate, First Class, Raipur against the two appellants complaining that they had on March 10, 1962 allowed three passengers to occupy the front seat in a public carrier and had loaded goods in excess of the sanctioned weight, and had, 854 thereby committed offences punishable under sections 124 and 112 of the 4 of 1939.
The Magistrate issued process against the appellants for their appearance in Court by pleader, but did not make any endorsement thereon in terms of section 130(1)(b) of the Act.
The appellants submitted that the summonses served upon them were not according to law and the Magistrate by failing to make an endorsement on the summonses as required by cl.
(b) of sub section
(1) of section 130 of the Act had deprived them of the right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25/ as may be specified.
The Magistrate rejected this plea and directed that the case against the appellants be "proceeded further according to law".
The Sessions Judge, Raipur in a petition moved by the appellants made a reference to the High Court of Madhya Pra desh recommending that the order passed by the Magistrate be set aside, for in his view the Trial Magistrate having failed to comply with the mandatory terms of section 130(1) (b) the proceeding against the appellants was unlawful.
The High Court of Madhya Pradesh declined to accept the reference.
Against that order, with certificate granted by the High Court, the appellants have preferred this appeal.
Section 130 of the which occurs in Ch.
IX which relates to "Offences, penalties and procedure" provides: " (1) A Court taking cognizance of an offence under this Act shall, unless the offence is an offence specified in Part A of the Fifth Schedule, state upon the summons to be served on the accused person that he (a) may appear by pleader and not in person, or (b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sum not exceeding twenty five rupees as the Court may specify.
(2) Where the offence dealt with in accordance with sub section (1) is an offence specified in Part B of the Fifth Schedule, the accused person shall, if he pleads guilty of the charge, forward his licence to the 855 Court with the letter containing his plea in order that the conviction may be endorsed on the licence.
(3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of sub section (2), no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.
" Offences under sections 112 & 124 of the Act with which the appellants were charged are not included in the first part of the Fifth Schedule to the Act, and the Magistrate was therefore bound to comply with the terms of section 130(1).
There can be no doubt on the plain terms of section 130(1) that the provision is mandatory.
But there was difference of opinion about the nature of the duty imposed by sub section
(1) upon the Court taking cognizance of the complaint.
The Sessions Judge held that a Magistrate taking cognizance of an offence of the nature specified had, by virtue of section 130(1), to make an endorsement on the summons in terms of cls.
(a) & (b) and thereby to give an option to the person charged either to appear by pleader or to plead guilty to the charge by registered letter and remitting therewith the sum specified in the summons, and if the Magistrate failed to give that option, the proceedings initiated would be liable to be set aside as infringing the mandatory provision of the Act.
The High Court was of the view that sub section
(1) of section 130 left an option to the Magistrate exercisable on a consideration of the materials placed before him when taking cognizance of an offence to issue a summons without requiring the accused to appear by pleader to call upon him to plead guilty to the charge by registered letter and to remit the fine specified in the summons.
According to the High Court therefore the Magistrate had the option to issue a summons with an endorsement in terms of sub section
( 1 ) (a) or of sub section
(1) (b) and only if a summons was issued with the endorsement specified by sub section
(1) (b) it was open to the accused to avail himself of the option to plead guilty and to claim the privilege mentioned in sub section
In our judgment the High Court was right in the view it has taken.
The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub section
(1) of section 130.
But there is nothing in that sub section which indicates that he must endorse the summons in terms of both the clauses (a) & (b): to hold that he is so commanded would be to convert the conjunc 4Sup./65 8 856 tion "or" into "and".
There is nothing in the words used by the Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act.
The procedure in sub section
(1) of section 130 applies to cases in which the offence charged is not one of the offences specified in Part A of the Fifth Schedule, but applies to the other offences under the Act.
The maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25/ or less.
It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permissible under the section to which the provision is applicable, to avoid imposition of a hi her penalty than Rs. 25/ by merely pleading guilty.
Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the or the Rules framed thereunder by dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25/ .
If the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under sub section
(1) (b) escape by paying an amount which cannot exceed Rs. 25/ .
Again the Magistrate is authorised under section 17 of the Act in convicting an offender of an offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any other punishment to pass an order declaring the offender unfit for holding a driving licence generally, or for holding a driving licence for a particular class or description of vehicle.
Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender or for other reasons, that he is unfit to obtain or hold a driving licence.
But if the offender avails himself of the option given to him by the Magistrate of pleading guilty, no further proceeding in respect of the offence can in view of sub section
(3) of section 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence.
It is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used section 130(1) 857 does not apply: see Sch.
Five Part A Item 9.
But there are offences under the which do not fall within that description and also do not fall under other items, which are punishable with imprisonment e.g. section 113(2).
There are also certain offences which, if repeated but not otherwise, are liable to be punished with imprisonment e.g. certain offences under sections 118A and under section 123 of the Act.
It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committeed, the offender would be entitled to compound the offence by paying the amount specified in the summons, which the Magistrate would be bound to accept, if the contention raised by the appellants is correct.
Having regard to the phraseology used by theLegislator which prima facie gives a discretion to the Magistrate exercisable at the time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the HighCourt was right in holding that the Magistrate is not obliged in offences not specified in Part A of the Fifth Schedule to make an endorsement in terms of cl.
(b) of sub section
(1) of section 130 of the Act.
We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. vs Mangal Singh(1) and the High Court of Assam in State of Assam vs Suleman Khan(2) on which the Sessions Judge relied is not correct.
The appeal therefore fails and is dismissed.
Appeal dismissed.
[/INST]For offences under sections 112 and 124 of the , the Magistrate issued process against the appellants for their appearance in court by pleader, but did not make any endorsement thereon in terms of section 130(1)(b) of the Act.
The appellants submitted that the summons served on them were not according to law and the failure to make this endorsement had deprived them of their right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25 as may be specified.
The trial Magistrate rejected this plea, but on being moved by the appellants, the Sessions Judge made a reference to the High Court recommending that the order passed by the Magistrate be set aside.
The High Court declined to accept the reference.
In appeal by certificate : HELD : The Magistrate was not obliged in offences not specified in Part A of the Fifth Schedule to make an endorsement in terms of section 130(1) (b) of the Act.
[857 D] The Magistrate taking cognizance of an offence was bound to issue summons of the nature prescribed by sub section
(1) of section 130.
But there is nothing in that subsection which indicates that he must endorse the summons in terms of both cls.
(a) & (b) : to hold that he was commanded would be to convert the conjunction "or" into "and".
[855 H 856 All]
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<s>[INST] Summarize the judgementIGINAL JURISDICTION: Criminal Appeal No. 319 of 1988 From the Judgment and Order dated 21.11.1987 of the Gujarat High Court in Special Criminal Application No. 732 of 1987.
AND Writ Petition (Criminal) No. 906 of 1987.
M.C. Kapadia, S.S. Khanduja and Y.P. Dhingra for the Appellant/Petitioner.
G.A. Shah and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave brought from the judgment and order of the Gujarat High Court dated 21st November, 1987 and the connected petition under article 32 of the Constitution are directed against an order passed by the District Magistrate, Panchmahals, Godhra dated 28th May, 1987 for the detention of the appellant under sub section
(2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 on being satisfied that it was necessary to do so, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
It is not an undisputed fact that the appellant is engaged as a commission agent or broker in the rather lucrative but illicit business of liquor traffic at Godhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, beer etc.
from wine merchants of Vanswada in the State of Rajasthan.
But then by engaging himself in such activities he falls within the description of a 'bootlegger ' as defined in section 2(b) and therefore comes within the ambit of sub section
(1) of section 3 of the Act by reason of the legal fiction contained in sub section
(4) thereof.
Put very briefly, the essential facts are these.
On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No. GRY 3832, on the night between 29/30th December, 1986, the Gujarat police put up a road block on the bridge near Machan River where on a sign given it failed to stop.
After a long chase, the police jeep was able to intercept the 292 truck at Limdi.
Both the driver Ahmed Saiyad Abdul Majid Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said that the truck was empty.
However, on a search it was found to be laden with 77 sealed cases containing 2040 bottles of different brands of scotch whisky, beer etc.
and it was evident from the statements of the driver and the cleaner who were arrested, that the appellant was the person who had purchased the liquor from wine merchants of Vanswada.
On 4th January, 1987 the statements of the witnesses were recorded.
Apparently, the appellant absconded and he could not be traced till 2nd February, 1987 when he was arrested but later released on bail.
In the meanwhile, he moved the Sessions Judge, Panchmahals for anticipatory bail on 21st January, 1987 but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest.
The appellant is being prosecuted for various offences under the Bombay Prohibition Act, 1949 as applicable to the State of Gujarat, in Criminal Case No. 154/86.
On 28th May, 1987 i.e. after a lapse of five months the District Magistrate, Panchmahals, Godhra passed the order of detention along with the grounds therefore which was served on the appellant on the 30th when he was taken into custody.
The immediate and proximate cause for the detention was that on 20/30th December, 1986 he transported in bulk foreign liquor from liquor merchants of Vanswada in the State of Rajasthan intended and meant for delivery to persons indulged in anti social activities by doing illict business of foreign liquor in the State of Gujarat.
Incidentally, the grounds furnish particulars of two other criminal cases, namely, (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor recovered and seized from his residential house on 21st July, 1982, but the case ended in an acquittal as the prosecution case witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house on 30th May, 1986 which case was still pending.
It was said that persons like the appellant bringing foreign liquor from other States illegally without a permit on a brokerage and storing the same in their permises are not easily detected and there was no other method of preventing such persons from engaging in such anti social activities except by detention under section 3(2) of the Act.
In the writ petition before the High Court the appellant assailed the impugned order of detention mainly on two grounds, namely: (i) The failure of the detaining authority to record his subjective satisfaction as required under sub section
(2) of section 3 that the importation of foreign liquor by the appellant from Vansawada across the border was likely to affect public health of the citizens of Gujarat and therefore it was 293 necessary to detain him with a view to preventing him from acting in any manner prejudicial to public order, renders the order of detention bad and invalid.
(ii) There was no sufficient material on record on which such subjective satisfaction of the detaining authority could be reached.
Neither of the two contentions prevailed with the High Court and it accordingly declined to interfere.
At the time when the judgment was to be delivered by the High Court, learned counsel appearing for the appellant sought permission to raise an additional point and he was permitted to do so.
It was as to whether the detention of the detenu at Sabarmati Central Prison, which was a place other than Godhra where he ordinarily resides, was tantamount to a breach of the mandate of article 21 of the Constitution as his detention at a far off place was not consistent with human dignity and civilized normes of behaviour.
The additional point so raised also did not find favour with the High Court.
The appeal by special leave is directed against this judgment.
Learned counsel for the appellant has however not preferred to rais these questions over again.
In the connected petition under article 32 learned counsel for the appellant has, in substance, put forth the following contentions, namely: (1) There is no explanation forthcoming for the admitted delay of five months in making the impugned order of detention and such inordinate unexplained delay by itself was sufficient to vitiate the order.
(2) The impugned order of detention was bad in law inasmuch as there was non application of mind on the part of the detaining authority.
There was nothing to show that there was awareness of the fact that the appellant had applied for grant of anticipatory bail nor was there anything to show that the detaining authority was satisfied about the compelling necessity to make an order for detention which, it is said, was punitive in character.
It is said that there was no occasion to commit the appellant to prison while he was on bail in a criminal case facing charges under the Bombay Prohibition Act, 1949 merely on the suspicion of being a bootlegger.
(3) The impugned order of detention was ultra vires the District Magistrate and void ab initio as it displayed lack of certainty and precision on the part of the detaining authority as to the purpose of detention.
There was clubbing of purposes as it mentioned that such detention was necessary (i) in the interests of the nation with a view to stop the anti national activities, (ii) for ensuring of public peace, (iii) for maintenance of public health, and (iv) in the interest of the State, all rolled up into one.
(4) There was delay in the disposal of the representation made by the appellant 294 to the State Government which renders his continued detention invalid and constitutionally impermissible.
We shall deal with the contentions in seriatim.
Point No. (1): It has always been the view of this Court that detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law.
The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens.
When the life and liberty of citizen was involved, it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed.
When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
These procedural safeguards are ingrained in our system of judicial interpretation.
The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court.
Thus, this Court in Khudiram Das vs State of West Bengal, ; speaking through Bhagwati, J. observed: "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security." As observed by this Court in Narendra Purshotam Umrao vs B.B. Gujral; , when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance 295 of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention. ". it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
" Nevertheless, the community has a vital interest in the proper enforcement of its laws particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering or with persons engaged in anti national activities which threaten the very existence of the unity and integrity of the Union or with persons engaged in anti social activities seeking to create public disorder in the worsening law and order situation, as unfortunately is the case in some of the States today, by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty.
The Court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of article 22(5) of the Constitution.
There is an inexorable connection between the obligation on the part of the detaining authority to furnish the 'grounds ' and the right given to the detenu to have an 'earliest opportunity ' to make the representation.
Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention.
The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu.
The test to be applied in respect of the contents of the grounds for the two purposes are quite different.
For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earlier opportunity which must, of course, be a real and effective opportunity.
The Court may examine the 'grounds ' specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation 296 and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc.
and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order.
In the enforcement of a law relating to preventive detention like the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activity complained of under section 3(1) of the Act and the making of an order of detention.
When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy.
Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents.
Effective administration and realisation of the purpose of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts.
Sometimes such investigation has to be carried on for months together due to the magnitude of the operations.
Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under section 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc.
The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee.
For ought we know, the Screening Committee may meet once or twice a month.
If the Screening Committee approves of the proposal, it would place the same before the detaining authority.
Being conscious that the requirements of article 22(5) would not be satisfied unless the 'basic facts and materials ' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would neces 297 sarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.
Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of article 22(5) of the Constitution.
It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible.
Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached.
Taking of such a view would not be warrented unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the impugned order of detention.
The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl.
W. No. 410/86 dated 2.2.1987, Bhupinder Singh vs Union of India & Ors., , Anwar Esmail Aibani vs Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986, Surinder pal Singh vs M.L. Wadhawan & Ors., Crl.
W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl.
W. No. 43/84 dated 16.4.1984 and other cases taking the same view do not lay down good law and are accordingly overruled.
In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 29/30th December, 1986.
The District Magistrate in the counter affidavit has averred that it was revealed from the statements of the witnesses recorded on 4th January, 1987 that the appellant was the person actually involved.
Apprehending his arrest the appellant applied for anticipatory bail on 21st January, 1987.
298 It appears that on the same day the appellant apears to have made a statement that there was no proposal at that stage to arrest the appellant.
However, later it was discovered that there was no trace of the appellant.
He was arrested on 2nd February, 1987 and on the same day he made a statement admitting these facts.
Meanwhile, the proposal to detain the appellant was placed before the District magistrate.
It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under section 3(2) of the Act and that accordingly on 28th May, 1987 he passed the order of detention.
The appellant was taken into custody on 30th May, 1987.
He had forwarded the report to the State Government on the 28th and the Government accorded its approval on the 31st.
Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention.
There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action.
These are admirably dealt with in Durga Das Basu 's Shorter Constitution of India, 8th edn.
at p. 154.
We will only notice to a few salient decisions.
In Olia Mallick vs State of West Bengal, it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order.
Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity.
In Golam Hussain @ Gama vs The Commissioner of Police, Calcutta & Ors., ; , it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention.
But no 'mechanical test by counting the months of the interval ' was sound.
It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation.
The Court has to investigate whether the casual connection has 299 been broken in the circumstances of each case.
In Odut Ali Miah vs State of West Bengal, where the decision of the detaining authority was reached after about five months, Krishna Iyer, J. repelled the contention based on the ground of delay as a mere 'weed of straw ' and it was held that the 'time lag ' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonable person could possibly have arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents.
It follows that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.
In Vijay Narain Singh vs State of Bihar, [1964] 3 SCC 14, one of us, Sen, J. observed: "On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority.
It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order.
" See also: Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; and Hemlata kantilal Shah vs State of Maharashtra, ; Point No. (2): Quite recently, we had occasion to deal with this aspect in Bal Chand Bansal vs Union of India & Ors., JT In repelling a contention raised on the dictum in Ramesh Yadav vs District Magistrate, Etah, , one of us (Sharma, J.) drew attention to the observations of Mukharji, J. in Suraj Pal Sahu vs State of Maharashtra, ; that the prejudicial activities of the person detained were 'so interlinked and continuous in character and are of such nature ' that they fully justified the detention order.
Here the grounds of detention clearly advert to two earlier incidents, one of 21st July, 1982 for which the detenu was being prosecuted in Criminal Case No. 303/82 relating to the recovery and seizure of 142 bottles of foreign liquor from his residential house which ended in an acquittal because the prosecution witnesses turned hostile, and the other of 30th May, 1986 for which Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house was 300 then still pending, and go on to recite that the launching of the prosecution had no effect inasmuch as he had not stopped his activities and was continuing the importation of foreign liquor from across the border.
The earlier two incidents are not really the grounds for detention but they along with the transaction in question of importation of foreign liquor in bulk show that his activities in this transaction afforded sufficient ground for the prognosis that he would indulge in such anti social activities again, if not detained.
The District Magistrate in his counter affidavit has stated that he was aware of the fact that the detenu had on 21st January, 1987 applied for anticipatory bail but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest.
It however appears that he was arrested on 2nd February, 1987 and on his own made a statement admitting the facts.
Thereafter, he seems to have disappeared from Godhra.
In the circumstances, it cannot be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did.
There is a mention in the grounds of the two criminal cases pending against the detenu and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and therefore there was compelling necessity to detain him.
Point No. (3): The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' at first blush appears to be attractive but on deeper reflection seems to be of little or no consequence.
The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order.
It was not seriously disputed before us that the prejudicial activities carried on by the appellant answer the description of a 'bootlegger ' as defined in section 2(b) and therefore he comes within the purview of sub section
(1) of section 3 of the Act, by reason of sub section
(4) thereof.
Sub section
(4) of section 3 with the Explanation appended thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order ' and reads: "(4) For the purpose of this section, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order ' when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.
301 Explanation: For the purpose of this sub section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any person referred to in this sub section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public of any section thereof or a grave or widespread danger to life, property or public health." The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellant that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained.
In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction.
They go on to state that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and therefore it was necessary to detain him under section 3(2) of the Act, and recite: "In order to safeguard the health of the people of Gujarat, for public peace and in the interest of the nation, with a view to stop such anti national activities . . for the purpose of public order and public peace and in the interest of the State . ." In our opinion, these words added by way of superscription were wholly unnecessary.
They were set out by the District Magistrate Presumably because of total prohibition in the State.
In future, it would be better for the detaining authority acting under sections 3(1) and 3(2) of the Act, to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar.
Point No. (4): The contention that there was unexplained delay in disposal of the representation made by the appellant to the State Government appears to be wholly misconceived.
Admittedly, the appellant made his representations to the State Government as well as to the Advisory Board on 8th June, 1987.
The State Government acted with promptitude and after due consideration rejected the same on 12th June, 1987.
There was no delay much less inordinate delay in consideration of the representation.
The result therefore is that the appeal as well as the writ petition fail and are dismissed.
S.L. Appeal & Petition dismissed.
[/INST]The Rajasthan Public Service Commission conducted an examination in 1985 for appointments to State Services.
The recruitment rules contained a provision that candidates should secure a minimum of 33% marks in the viva voce test.
Some of the candidates who failed to secure the minimum marks in viva voce challenged before the High Court the constitutionality of the provision in the Rules stipulating such minimum cut off marks.
The High Court declared the provision unconstitutional.
Before this Court, it was urged on behalf of the selected candidates and the State of Rajasthan, that (I) the High Court fell into a serious error in importing into the present case principles . which pertained to the proposition whether the setting apart of an excessive and disproportionately high percentage of marks for viva voce in comparison with the marks of the written examination would be arbitrary; and (2) the prescription of minimum qualifying marks for the viva voce test would not violate any constitutional principle or limitation, but was on the contrary a salutary and desirable provision.
On the other hand, it was urged that (1) the principles laid down by this Court, which the High Court had accepted, were sound and had acquired an added dimension in the context of the increasingly denuded standards of probity and rectitude in the discharge of public offices, and (2) the real thrust of the principles was that any marking procedure that made the oral test determinative of the fate of a candidate was, in itself, arbitrary, and if this test was applied to this case, the decision reached by the High Court would be unexceptionable.
380 Allowing the appeals, it was, ^ HELD:(1) A sensitive, devoted and professionally competent administrative set up could alone undertake the ever expanding social and economic roles of a welfare state.
[387A B] (2) The 'interview ' was now an accepted aid to selection and was designed to give the selectors some evidence of the personality and character of the candidates, which qualities were necessary and useful to public servants.
[388G H] (3) Academic excellence was one thing.
Ability to deal with the public with tact and imagination was another.
Both were necessary for an officer.
The dose that was demanded may vary according to the nature of the service.
Administrative and Police Services constituted the cutting edge of the administrative machinery and the requirement of higher traits of personality was not an unreasonable expectation.
[391D] Lila Dhar vs State of Rajasthan, [1982] 1 SCR 320 referred to.
(4) The observations made by this Court in Ashok Kumar Yadav were in the context where the spread of marks for the viva voce was so enormous, compared with the spread of marks for the written examination, that the viva voce test 'tended to become the determining factor '.
The reference was to the possibility of a candidate undeservedly being allotted high marks at the interview.
That was a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva voce.
[394B C] Ashok Kumar Yadav vs State of Haryana, [1985] Supp.
1 SCR 657 explained.
State of U.P. vs Rafiquddin & Ors., (Judgment Today referred to.
(5) The prescription of minimum qualifying marks of 60 (33%) out of the maximum of 180 set apart for the viva voce examination did not, by itself, incur any constitutional infirmity.
The principles laid down by this Court in the case of Ajay Hasia Lila Dhar and Ashok Kumar Yadav did not militate against or render impermissible such a prescription.
[391B] Ajay Hasia vs Khalid Mujib Sehravardi & Ors., ; ; Lila Dhar vs State of Rajasthan & Ors., and Ashok Kumar Yadav vs State of Haryana, distinguished.
(6) A mere possibility of abuse of a provision, did not, by itself, justify its invalidation.
The validity of a provision must be tested with reference to its operation and efficiency in the generality of cases and not 381 by the freaks or exceptions that its application might in some rare cases possibly produce.
[394F G]
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<s>[INST] Summarize the judgementAppeal No. 1121 of 1966.
Appeal by special leave from the judgment and order dated August 17, 1965 of the Punjab High Court, in Letters Patent Appeal No. I 10 of 1965.
203 Janardan Sharma and R. N. Sachthey, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Punjab accepting the petition filed by the rate payers of Municipal Committee, Rohtak, respondents before us, and ordering that the State Government shall not proceed with the constitution of the Rohtak Improvement Trust under the notification of August 30, 1961.
The High Court allowed the petition because it held (1) that sub section
(3) of section I of the Punjab Town Improvement Act (Punjab Act IV of 1922) here in after referred to as the Act only envisages the creation 'of a Trust in a Municipal area where a Committee is functioning and so is in a position to hold a special meeting to decide whether or not it considers the creation of a trust desirable, and (2) that once a trust ceases to exist under section 103(l) of the Act in order to recreate the trust, the Act has to be applied again, and as the Municipal Committee had at a special meeting held on November 9, 1962, decided unanimously that the Act should not be applied the Government was bound to give effect to that decision.
The learned counsel for the appellant, Mr. Sachthey, contends that the High Court has placed a wrong interpretation on the two provisions mentioned above and somehow section 4 A of the Act was not noticed by the High Court.
Before we deal with the interpretation of the provisions mentioned above it is necessary to state a few facts.
The Rohtak Municipal Committee was superseded on August 2, 1954.
The Government purported to extend the provisions of the Act to the whole of the area of the Municipality on May 21, 1958.
The notification to this effect reads "In pursuance of the provisions of sub section of Section I of the Punjab Town Improvement Act 1922 (Punjab Act No. IV of 1922), the Governor of Punjab proposes to apply the provisions of the said Act to the whole of the area of the municipalities specified below with effect from 9th June, 1958 1. . 2. . 3.
Rohtak,. " Sub section (3) of section 1 of the Act reads as follows "1.
(3) This section and section 66 shall come into force at once.
The State Government may by notification propose to apply the rest of the Act to the whole or any part of any municipality and to any locality adjacent 204 thereto, on such date as may be specified in such notification; and the Act shall come into operation after the, lapse of three months unless within that period the municipal committee concerned at meeting convened for the purpose of considering the application of the Act resolve by a majority of two thirds that the Act should not be so applied.
" In pursuance of this notification a trust was set up.
But on August 30, 1961, the Government issued a notification in exercise of its powers under sub section
(1) of section 103 of the Act and declared that the Rohtak Improvement Trust shall be dissolved with effect from August 30, 1961 from which the Chairman and the trustees of the aforesaid Trust ceased to function.
Section 103(1) of the Act reads as follows : "103.
(1) When all schemes sanctioned under this Act have been executed or have been so far executed as to render the continued existence of the trust, in the opinion of the State Government, unnecessary, or when in the opinion of the State Government it is expedient that the trust shall cease to exist, the State Government may by notification declare that the trust shall be dissolved from such date as may be specified in this behalf in such notification; and the trust shall be deemed to be dissolved accordingly.
" It appears that on the supersession of the Municipality of Rohtak in 1954 an Administration was appointed under section 238 of the Punjab Municipal Act, 191 1.
This section, inter alia, provides: "238.
(1) . (2) When a committee is so superseeded.
the following consequences shall ensue (a). (b) all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such persons as the State Government may appoint in that behalf;" Fresh elections of the Municipal Committee, Rohtak, were held in July 1961, and the Municipal Committee reconstituted on January 10, 1962.
On October 23, 1962, the Government informed the Deputy Commissioner, Rohtak, that it had decided to reconstitute Rohtak Improvement Trust immediately and asked the Deputy Commissioner to recommend a panel of six names of suitable persons for appointment as trustees and the Government also asked him to call upon the Municipal Committee, Rohtak, to elect its representatives as trustees.
205 This was not to the liking of the Municipal Committee and the Municipal Committee unanimously passed a resolution on November 9, 1962, strongly opposing the reconstitution of the Improvement Trust, Rohtak.
The Government by notification dated January 10, 1963, in exercise of powers conferred 'by sub section
(2) of section 4 of the Act appointed one Major section K.Mehta as Chairman, Rohtak Improvement Trust.
The Municipal Committee was again requested to send two names of three members of the Municipal Committee to be appointed as trustees as required by cl.
(b) of sub section
( 1) of section 4 of the Act.
Thereupon 32 rate payers filed the petition under article 226 of the Constitution challenging the reconstitution of the Rohtak Improvement Trust.
Coming to the first point decided by the High Court, it seems to us that section 4 A to the Act was not brought to its notice and if it had been brought to its notice the High Court may well have come to the contrary conclusion.
Section 4 A which, was inserted by Punjab Act VIII of 1936 reads : "4 A.
During the period of supersession of a Municipal Committee under section 238 of the Punjab Municipal Act, 191 1, the three seats allotted to the Municipal Committee on the trust under clause (b) of sub section (1) of section 4 shall be filled by the State Government by appointing any three persons by notification in the Official Gazette.
The term of office of every trustee so appointed shall be three years or until the Trust is dissolved, whichever period is less, provided that if the Municipal Committee is reconstituted three members of the Municipal Committee shall be elected or appointed in accordance with the provisions of section 4, and on their election or appointment the three trustees appointed by the State Government under this section shall cease to be members of the Trust.
" Reading section 1(3) and section 4A of the Act, and section 238 of the Punjab Municipal Act, 191 1, together, it seems to us that the true meaning of the latter portion of sub section (3) of section 1 is that when the Government applies the section and the Municipal Committee has been superseded before that date, it is the Administrator who would exercise the powers given under the latter part of that sub section; in other words, the Administrator would be competent to say to the Government that the Act shall not come into operation.
The words of section 238 of the Punjab Municipal Act are very wide and it is difficult to limit the expression "all powers and duties of the committee" in any manner.
The Municipality exercised powers by resolution passed by majority and the fact that this particular resolution had to be by two third majority does not lead 206 to the conclusion that the power to oppose the application of the Act vesting in the Municipal Committee cannot be exercised by the Administrator under section 238, Punjab Municipal Act.
Section 4A of the Act clearly proceeds on the basis that while the Municipal Committee stands superseded the appointment of trustees which was originally to be made by the Municipal Committee would be made 'by the State Government.
As the High Court did not have section 4 A before it had relied on the anomaly that where a Municipal Committee was suspended the Government could nominate some members of the suspended Committee as members of the Trust or otherwise fill these vacancies, and the High Court felt that it could not believe that it was the intention of the Legislature.
Coming to the second point.
made by the High Court, it seems that the High Court has wrongly,, held that once the Act has been applied it is necessary that it should be applied again when the Municipal Committee is reconstituted.
There is nothing in the words of sub section
(3) of section I to 'warrant this conclusion.
Once the Act has come into operation in accordance with the provisions of sub section
(3) of section 1 there is no provision by which the Act can cease to apply.
The only point that remains is,: when a trust has been dis solved under section 103 of the Act, can it be reconstituted under the Act ? The only provisions under which a trust can be reconstituted under the Act are sections 3 and 4.
Section 3 reads : "3.
The duty of carrying out the provisions of this ' Act in any local area shall, subject to the conditions and limitations hereinafter contained, be vested in a board to be called "The (name of town) Improvement Trust" hereinafter referred to as the 'The Trust"; and every such board shall be a body corporate and have perpetual succession and common seal, and shall by the said name sue and be sued.
" Section 4 reads; "4.
(1) The trust shall consist of seven trustees, namely The other sub sections of section 4 provide how the trustees are to be appointed.
It seems to us that if the trust could originally be created under sections 3 and 4, reading sections 3 and 4 and section 12 of the General Clauses Act, the Government has the power to create a view trust or reconstitute a new trust.
We may mention that section 12 of the Gene 207 ral Clauses (Punjab.) Act, 1898, provides that "where by any Punjab Act any power is conferred then that power may be exercised from time to time as occasion requires.
" In the result the judgment of the High Court is set aside, the appeal allowed and the writ petition dismissed.
There, will be no order as to costs throughout.
Y.P. Appeal allowed.
[/INST]The Rohtak Municipal Committee was superseded in August 1954, and an Administrator was appointed under section 238 of the Punjab Municipal Act, 1911.
In June 1958 the provisions of the Punjab Town Improvement Act, 1922, were extended to the Municipality and the Rohtak Improvement Trust was set up under the Act.
In August 1961, the Government issued a notification under section 103 (1) of the 1922 Act dissolving the Trust.
The Municipal Committee was reconstituted in January 1962 and in October 1962 the Government decided to reconstitute the Trust.
The Municipal Committee thereupon passed a resolution opposing the reconstitution of the Trust.
In January 1963, however, the Government re constituted the Trust and the Municipal Committee was asked to name its representatives to be appointed as trustees.
The rate payers filed a writ petition challenging the reconstitution of the trust and the High Court allowed the petition.
In appeal to this Court, HELD : (1) The attention of the High Court was not drawn to section 4A of the 1922 Act and therefore it erred in holding that the Trust could not be set up in 1958 because, under section 1(3) of the 1922 Act a Trust cannot be created in a Municipal area unless the committee was functioning.
Under section 4A, where the Municipal Committee was superseded the State ,Government could appoint the trustees, and there was no anomaly in the Government nominating the trustees, because, the Administrator who had all the powers and duties of the Committee under section 238 of the 1911 Act was competent to say to the Government that the 1922 Act should not be applied to the Municipality.
[205 C D 206 B] (2) Once the 1922 Act had come into operation under section 1(3), it ,continues to apply and it was not necessary to apply it again when the Municipal Committee was reconstituted in 1962.
[206 D] (3) Under sections 3 and 4 of the 1922 Act and the General Clauses (Punjab) Act, 1898, Government has the power to create a new trust or reconstitute a Trust which was dissolved.
[206 H]
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<s>[INST] Summarize the judgementAppeals Nos.
1038 1040 of 1967.
Appeals by certificate under Article 133 of the Constitution of India from the judgment and decree dated August 7, 1962 of the Patna High Court in Original Decrees Nos. 384/52, 1155 and 2/55.
1017 R. C. Prasad, for the appellant Jagadish Swarup, K. K. Sinha, section K. Sinha and B. B. Sinha, for respondents Nos.
1 4 (in C.A. No. 1038 of 1967), for respondents 1 (a) & 2 (in C.A. No. 1039 of 1967 and for respondents Nos. 1, 2, 4 & 5 (in C.A. No. 1040 of 1967).
The Judgment of the Court was delivered by Ray, J.
These three appeals are by certificate against the judgment dated 7 August, 1962 of the High Court at Patna.
The High Court allowed in part the appeals filed by the appellant by decreeing in part the suits filed by the appellant for redemption of mortgages.
The High Court dismissed the appellant 's prayer for mesne profits.
The appellant filed three suits for redemption.
Title Suit No. 54 of 1950 filed by the appellant was with respect to Ijara bond dated 21 April, 1920 in favour of Ram Baran Singh for Rs. 2,300/ .
Title Suit No. 55 of 1950 was filed by the appellant with respect to another ljara bond dated 21 April, 1920 in favour of Inder Singh for Rs. 1293 12 0.
The third Title Suit No. 56 of 1950 was filed by the appellant with respect to the third Ijara bond dated 21 April, 1920 in favour of Raj Kumar Mahto for Rs. 1,150/ .
The bond was subsequently assigned to one Sheo Sharan Singh whose sons were defendants in that suit.
These bonds were executed by Maik Nizammuddin.
These three bonds were mortgage bonds in respect of certain Milkiyat share in village Keoran Mauzume Makhdumpur in the District of Patna.
The appellant was the purchaser of the Milkiyat share of Nizammuddin from his heirs by a deed dated 22 May, 1946.
The appellant alleged as follows.
There, are baksht lands within the said Milkiyat share covered by the Ijara bonds.
These bakasht lands were the subject matter of the mortgage.
After 'he purchase the appellant endered the ljara money to the respondents who were ijaradars or mortgagees.
The respondents refused to accept the money.
The appellant thereupon deposited the mortgage money.
The appellant served notice of the deposit on the respondents.
The respondents did not withdraw the ijara money.
They did not deliver possession of the Milkiyat share and the bakasht lands to the appellant.
The appellant therefore filed suits for redemption and for possession.
The appellant also claimed mesne profits.
The respondents in the written statements denied that there was any bakasht land.
It was also denied that there was any mortgage of bakasht land.
It was alleged that the lands were raiyati lands in possession of several tenants and therefore those lands could not be redeemed.
The further defence was that the 1018 Ijara bonds were really sale deeds and therefore the appellant had no right of redemption in respect of the milkiyat interest.
The respondents denied that the appellant tendered the mortgage money.
The trial Court held that the appellant was entitled to a decree for redemption but not for mesne profit.
The reason given was that the appellant did not deposit in court under Section 83 of the Transfer of Property Act the money due on mortgage.
The mortgagees had from time to time paid the Government revenue and cess in respect of the mortgage property.
The Government revenue and cess should have been paid by the mortgagor.
The amounts representing the Government revenue and cess should have been added up in the mortgage money.
The deposits in court did not cover those amounts.
The appellant preferred appeals to the High Court.
The High Court upheld the finding of the trial Court that certain lands were bakasht lands.
The High Court set aside the finding of the trial Court as to other lands which were found by the trial Court not to be bakasht lands.
The High Court upheld the finding and conclusion of the trial Court that there was no valid deposit in court of money due on mortgage.
The appellant was therefore not entitled to mesne profits.
The High Court found that the amount of revenue and cess was never less than the amount of haq ajri (meaning thereby 'annual reserve rent ') payable to.
the mortgagor.
The result was that the amount of revenue and cess paid by the mortgagees was always higher than the haq ajri and therefore there was no case of accounting.
Counsel for the appellant contended that the appellant was entitled to mesne profits from the dates of deposit of mortgage money in court under section 83 of the Transfer of Property Act.
The amounts were deposited in court of First Munsif, Patna on 26 May, 1947.
Notice under section 83 of the Transfer of Property Act was served on the respondents on 30 May, 1947 in two cases and on 3 June, 1947 in the third case.
The suits were filed for redemption of mortgage and mesne profits in the month of June, 1950.
The relevant terms of the ijara bond (mortgage bond) in favour of Ram Baran Singh were these : "It is desired that the said Mustajir, should enter into possession and occupation of the ijara property, himself cultivate the land, appropriate the produce thereof in lieu of interest on the peshgi money.
I, the executant, or my heirs and representatives, neither have nor 1019 shall have any claim for excess produce and mesne profits etc.
against the said Mustajir or his heirs and representatives, except to get a sum of Rs. 12/ (rupees *twelve) in king 's coins, as annual reserve rent till this deed remain intact.
Expenses over dispute regarding the milkiyat property and boundary limit and payment of Government revenue and road cess and Public works cess etc.
are entirely the concern of me, the executant.
The said Mustajir neither has nor shall have any connection and concern therewith".
The terms of the other two ijara deeds were identical.
The only difference was that in the case of the ijara bond in favour of Inder Singh the annual reserve rent (haq ajri) was Rs. 6 12 0 and in the case of Raj Kumar Mahto the annual reserve rent (haq ajri) was Rs. 6/ .
Broadly stated, these terms indicate three features.
First, the mortgagee shall have possession and occupation of the mortgaged property and appropriate the produce thereof in lieu of interest on the mortgage money and the mortgagor had no claim to any excess produce or mesne profits against the mortgage.
Secondly, the mortgagee was to pay to the mortgagor the amounts mentioned in each ijara bond the annual reserve rent or haq ajri.
Thirdly, the mortgagor was liable for payment of the Government revenue or cess.
The High Court found that the mortgagees paid the revenue and cess out of haq ajri.
In Title Suit No. 54 of 1950 the High Court held that the total amount of revenue and cess came to Rs. 15 9 3.
The haq ajri in that suit was Rs. 12/ .
It therefore followed that every year the mortgagee paid Rs. 3 9 0 in excess of the amount haq ajri.
The mortgagor was liable to the mortgagee for the excess payment.
Similarly, in Title Suit No. 55 of 1950 the mortgagee paid revenue and cess amounting to Rs. 9 13 3.
The haq ajri under the ijara bond in that suit was Rs. 6 12 0.
The result was that every year the mortgagee paid Rs. 3 1 3 in excess.
The mortgagor was liable to the mortgagee to pay that excess amount.
Again, in Title Suit No. 56 of 1950 the High Court found that the mortgagee paid every year revenue and cess amounting to Rs. 7 12 0.
The haq ajri there was Rs. 6/.
The mortgagee therefore paid annually Rs. 1 12 0 in excess of haq ajiri.
The mortgagor was liable to pay the excess amount to the mortgagee.
In the present appeals, the mortgagor had undertaken the liability to pay the revenue and cess.
The mortgagor failed to pay the same.
The mortgagees paid the revenue and cess on be 1020 half of the mortgagor.
The mortgagees were entitled to the excess payment of the amount of revenue and cess, because the mortgagor was liable to pay the same.
The mortgage bonds in the present case provided that as Ion as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money.
That amounts to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money.
That is section 77 of the Transfer of Property Act.
The provisions as to accounts contained in section 76(g) of the Transfer of Property Act are excluded in cases where section 77 of the Transfer of Property Act applies.
Section 77 of the Transfer of Property Act applies to the present appeals.
Further, the mortgages had to pay to the mortgagor a fixed amount, namely, the haq ajri.
There was nothing to account on the part of the mortgagees in relation to payment of haq ajri.
On the contrary, the mortgagor was liable for the payment of Government revenue and cess.
Under section 76 (c) of the Transfer of Property Act the mortgagee in possession, in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold.
In the present case, the mortgagor was liable for payment of both revenue and cess.
Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liable.
Section 4 of the Cess Act, 1880 defines 'annual value of land ' to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payable, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof.
Section 5 of the Cess Act, 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess.
Section 6 of the Cess Act, 1880 provides as to how the cess is to be assessed.
Section 38 of the Cess Act, 1880 provides as to how rate of local cess ' on the annual value of land is 'to be fixed.
Section 98 of the Cess Act, 1880 enacts that the amount which may become due under the provisions of the I Cess Act in respect of arrears of cess shall be deemed to be a public demand.
Section 99 provides that the 'Collector may recover dues out of rent and the Collector 's claim to have priority.
These provisions show that cess is linked with rent.
Cess is payable on annual value of land.
Annual value is linked with rent.
Cess is deemed to be a public demand.
The mortgagee were entitled to add the amounts paid by them towards revenue and cess on the mortgage money.
1021 The High Court was correct in refusing the mesne profits.
On behalf of the respondents it was mentioned in their statement of case that the appellant after having deposited the further amount after the decree of the High Court had taken possession of the land.
This statement was not challenged and denied by the appellant.
This indicates that the appeals have now become academic.
The appeals therefore fail and are dismissed.
The respon dents will be entitled to one set of costs in this Court.
V.P.S. Appeals dismissed.
[/INST]In pursuance of detention order under section 3 of the West Bengal Prevevenion of Violent Activities) Act, 1970, the petitioner was arrested.
The State Government received a representation from the petitioner against his detention, which was rejected by the St ate Government 27 days after the receipt of the representation.
The delay in considering the representation of the petitioner was not explained.
Allowing the petition under article 32, HELD : According to article 22(5) of the Constitution when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earlier opportunity if making a representation against the order.
The fact that the earliest opportunity has to be afforded to the detenu for making a representation necessarily implies that, as and when the representation is made, it should be dealt with promptly.
Otherwise, the requirement would be reduced to a farce and empty formality.
In case the authority concerned is guilty of unexplained delay in dealing with the representation, the detention.
would be liable to be assailed and declared unvalid on the ground of interaction of article 22(5) of the Constitution.
This is as it should be because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law.
[682B F] Jayanarayan Suku vs State of West Bengal, [1970] 3 S.C.R. 225; Xhairul Haque vs State of West Bengal, W.P. No. 246 of 1969 decided on September 10, 1969; Prof. K. L. Singh vs State of Manipur; , ; Baidya Nath Chunkar vs State of West Bengal, W.P. No. 377 of 1971 decided on March 14, 1972; Kanti Lal Bros vs State of West Bengal,.
W.P. No. 8 of 1972 decided on May 5, 1972, followed.
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<s>[INST] Summarize the judgementCivil Appeal No. 252 of 1969.
Appeal by Special Leave from the Judgment and Order dated 19 8 68 of the Allahabad High Court in Civil Appeal No. 254/65.
G. N. Dikshit and M. V. Goswami for the Appellant.
section C. Manchanda, section C. Patel and Trilok Singh Arora for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment and order of the Allahabad High Court dated August 19, 1968 dismissing a second appeal arising out of a suit for declaration.
The respondent was appointed as a Sub Inspector of Police in a temporary post in 1955.
He was discharged from service on July 13, 1957.
A writ petition filed by him in the Allahabad High Court was allowed on August 4, 1959, and accordingly on December 15, 1959 he was reinstated in service.
Thereafter, on January 21, 1960 his services were terminated by the Deputy Inspector General of Police, Agra Range, Agra.
On March 13, 1963 the respondent instituted a suit for a declaration that the order dated January 21, 1960 was illegal and void and that he continued as Sub Inspector of Police in the Uttar Pradesh Police Service.
It was alleged that on a false complaint made against him in respect of the custody and detention of one Smt.
Phoolmati, an enquiry had been made in consequence of which the appellant had been arbitrarily and illegally discharged from service on July 13, 1957.
It was pleaded that although he was reinstated on the success of his writ petition in the High Court, his services were terminated a mere five weeks later although no ground had arisen since for doing so.
It was asserted that the order of January 21, 1960 was passed as a simple order of termination in order to avoid a departmental enquiry under section 7 of the Police Act, which enquiry if held would have enabled him to expose the falsity of the allegations levelled against him.
The suit was contested by the appellant, who maintained that the termination of the respondent 's services was not by way of punishment hor motivated by malice, and that it was a simple termination of the services of a temporary government servant on the ground that they were no longer required by the State.
The suit was decreed by the learned Munsif, Etah and the decree was affirmed in appeal and second appeal.
The High Court, in second appeal, took the view that where an enquiry was instituted by a superior authority into a misconduct alleged against a government 1128 servant, the resulting termination of service was by way of punishment because it attached a stigma or amounted to a reflection on the competence of the government servant and affected his future career.
The High Court held that the findings recorded during the enquiry on the original complaint against the respondent were responsible for the order terminating the respondent 's services, and it affirmed that the order was vitiated by mala fides.
Attacking the findings of the High Court, learned counsel for the appellant contends that in the first place the order terminating the respondent 's services had not been made by way of punishment, but was an order of termination simpliciter passed in accordance with the rules applicable to temporary government servants.
In the second place, it is said, if the order is attributed to the complaint against the respondent concerning his conduct relating to Smt.
Phoolmati it was open to the Deputy Inspector General of Police to take the circumstances of the case into account for the purpose of considering the suitability of the respondent for continuing in service.
Learned counsel for the respondent points out that an enquiry had been originally instituted against the respondent which had resulted in an order terminating his services and, he urges, after the order of the High Court quashing his discharge on the ground of violation of Article 311(2) of the Constitution it was obligatory on the superior authority, in case it proposed to terminate the respondent 's services, to institute a proper and complete departmental enquiry, providing an opportunity to the respondent to lead evidence and be heard in his defence, and only thereafter could it make an order against the respondent.
We are of the opinion that the appellant is right on both counts.
Considered as an order made without reference to the earlier proceeding against the respondent, the impugned order cannot be regarded as one of punishment.
After the original order of discharge was quashed by the High Court, the respondent was reinstated in service.
He was even allowed an increment to his salary.
The Deputy Inspector General of Police made the impugned order subsequently terminating his services on the ground that they were no longer required.
The services were terminated on payment of one month 's salary in lieu of notice under the "general rules for termination of service of temporary government servants".
The Deputy Inspector General of Police was examined as a witness in the suit, and throughout he maintained that he terminated the respondent 's services because they were not required any more and that in making the order he did not intend to punish the respondent.
The evidence also discloses that no personal motive had influenced the order.
It was open to the superior authority to terminate the respondent 's services on the ground on which it did so.
1129 Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt.
Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondent 's services could be terminated.
It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondent 's conduct concerning the woman.
No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterising a disciplinary proceeding was never adopted.
The Deputy Inspector General of Police passed the original order dated July 13, 1957 discharging the respondent from the police force on the ground that he had behaved in a reprehensible manner, was not likely to make a useful police officer and was unfit for further retention in a disciplined force.
The original order plainly attached a stigma to the respondent 's record of service, and it is because of the specific grounds set forth in the termination order that the High Court considered the respondent entitled to the benefit of Article 311 (2) of the Constitution, and quashed the order.
Now the order having been quashed, the position reverts to what it was when the Deputy Inspector General of Police received the report of the Superintendent of Police on the Preliminary enquiry made by him.
There was nothing to prevent the Deputy Inspector General from deciding that instead of instituting disciplinary proceedings against the government servant he should consider whether the government servant was suitable for retention in service.
The case law on the point has been considered elaborately by one of us (Jaswant Singh, J.) in State of U.P. vs Ram Chandra Trivedi(1) and reference has been made in this behalf to Champaklal Chimanlal Shah vs The Union of India(2), Jagdish Mitter vs Union of India(3) and State of Punjab & Anr.
vs Shri Sukh Raj Bahadur(4).
It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order.
In this connection what has been stated by this Court in Union of India & Ors.
vs R. section Dhaba.(5) State of Bihar & Ors.
vs Shive Bhikshuk Mishra(6) and R. section Sial vs The State of U.P. & Ors.(7) appers relevant.
That it was not intended 1130 to take punitive action against the respondent for his misbehaviour with Smt.
Phoolmati is evident from the circumstance that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes.
The High Court, it seems to us, did not have regard to all the facts and circumstances of the case, and appears to have assumed that the respondent 's services were terminated as a measure of punishment.
The High Court relied on The State of Bihar vs Gopi Kishore Prasad(1) and Madan Gopal vs The State of Punjab(2).
Both cases are distinguishable.
In the former, the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer.
In the latter, the government servant had been served with a charge sheet that he had demanded and received illegal gratification and the Court found that the proceeding, consequent to which the termination order was made, was intended for the purpose of taking punitive action.
We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 (2) of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us.
Accordingly, the appeal is allowed, the judgment and decree of the High Court dated August 19, 1968 are set aside and the respondent 's suit is dismissed, but in the circumstances without any order as to costs.
S.R. Appeal allowed.
[/INST]A criminal case, arising out of F.I.R. 72 of 1967 against one Sri Bali Ram Sharma and two others for the offence of the theft of two sandstone pillars of great antiquity, beauty and value from the Suraj Kund Temple, in village Amin, Dist.
Karnal, ended in the acquittal of the accused.
During the pendency of this case, on an application made by him one Narinder Nath Malik (N. N. Malik) an alleged research scholar and a friend of H. L. Mehta, the then Chief Judicial Magistrate was given the custody of these two sandstone pillars which had been recovered from the accused.
The pillars remained in the custody of N. N. Malik from 1 3 1968 to 27 5 1968 and on the acquittal of the accused on 16 7 1968, they were handed over to the Lambardar of Village Amin.
Later, it came to light that the pillars returned by Malik were not the original pillars but fakes.
Thereupon, F.I.R. RC 2 71 CIA/SPE/CBI was registered at Delhi against Malik and H. L. Mehta under Section 120 B read with Sections 406 and 420 I.P.C.
After completing the investigation a charge sheet No. RC 2 of 1971 was filed on 30 12 1972, in the Court of Special Magistrate, Ambala against Malik and H. L. Mehra for the aforesaid offences noted in the F.I.R. Though an order was passed on 17 5 1976 directing the framing of charges, no charges were actually framed.
However, on 16 5 77, on an application dated 17 4 77 filed by the Public Prosecutor under Section 494 of the Criminal Procedure Code, 1973, the Special Magistrate permitted the withdrawal of the case and discharged the accused.
During the pendency of the case, the two genuine pillars were traced and found in London in the ware house of Spink & Co. It was suspected that Manohar Lal Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London.
This resulted in the registering of F.I.R. RC 4/76 CIU(A)/SPE by the Superintendent of Police, CIV (Antiquities SPE/CBI, New Delhi) against Manohar Lal Narang and others for alleged offences under Section 120B, read with Section 411 I.P.C. and Section 25 (1) of the .
An application under section 306 Cr.
P.C. filed by N. N. Malik on 26 6 1976 before the Chief Metropolitan Magistrate, New Delhi with reference to this F.I.R. RC 4/76, was accepted on 3 7 1976 and Malik was granted pardon, after confessional statement was recorded.
On 19 7 1976 a charge sheet was filed (RC 4 of 1976) before the same Court for offences under Sections 120B, I.P.C. read with Section 420, 411 and 406 I.P.C. and Section 25 of the .
The case was transferred to the Court of Additional Chief Metropolitan Magistrate.
On 20 7 1976 the Magistrate issued process for the appearance of the accused including the three Narang brothers out of whom the appellant in Crl.
Appeal 373 of 1978 was already under detention under MISA and COFEPOSA.
The other two who were in London were extradited and brought 924 to India on 27 7 1977.
An application filed by Ramlal Narang in March 1977 immediately after his release from detention, to drop the proceedings against him, to cancel the extradition warrants against his two brothers and to discharge all the accused on the ground of illegality of the Delhi case in view of the fact that a case on the same facts was already pending in the Ambala Court failed.
Thereafter two applications filed by the three Narang brothers on 21 6 1977 in the Delhi High Court under Section 482 Crl.
P.C. once again challenging the legality of the proceedings arising out of charge sheet RC4 of 1974 were admitted on 22 6 1977, but dismissed on 10 1 1978.
During the pendency of these two appeals Malik died sometime during May 1977 and Mehra was made a co accused in the Delhi case on 1 8 1977 in view of the withdrawal of the Ambala case on 16 5 1977.
Dismissing the appeals by special leave, the Court, ^ HELD: 1.
The police have the statutory right and duty to 'register ' every information relating to the commission of a cognizable offence.
The police also have the statutory right and duty to investigate the facts and circmstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report.
These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the police to investigate into a cognizable offence.
[937 F H] (a) The scheme of the 1898 Code of Criminal Procedure was that the First Information Report was followed by investigation, the investigation led to the submission of a report to the Magistrate, the Magistrate took cognizance of the offence on receipt of the police report and finally, the Magistrate taking cognizance issued process to the accused.
As such ordinarily the right and duty of the police would end with the submission of a report under Section 173(1) Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence.
[937 E F, 938 F] (b) There was no provision in the 1898 Code prescribing the procedure to be followed by the police, where after the submission of a report under Section 173(1) Criminal Procedure Code and after the Magistrate had taken cognizance of the offence, fresh facts came to light which required further investigation.
Similarly, there was no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence.
Therefore further investigation was permissible and was not altogether ruled out merely because cognizance of the case has been taken by the Court; defective investigation coming to light during the course of a trial could also be cured by a further investigation, if circumstances permitted it.
[938 F H, 941 C D] King Emperor vs Khwaja Wazir Ahmed, 71 Indian Appeals, PC 203: followed.
Diwakar Singh vs A. Ramamurthy Naidu, AIR 1919 Madras 751.
In re.
Palaniswami Goundan, AIR 1946 Madras 502; Mohd. Niwaj vs The Crown, Lahore; Prosecuting Inspector vs Minaketan 925 Monato, AIR 1952 Orissa 350; Ramashankar vs State of U.P., AIR 1956 All.
525; In re.
State of Kerala vs State Prosecutor, p. 1288 (Kerala) D.B.; approved.
H. N. Rishbud vs State of Delhi, ; ; Tara Singh vs State ; referred to.
(a) Neither Section 173 nor section 190 lead to the conclusion that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence.
Practice, convenience and preponderance of authority, permitted repeated investigations and discovery of fresh facts.
Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light.
Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.
[943 G H, 944 A] (b) When it comes to the notice of the investigating agency that a person already an accused of an offence has a good alibi or where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information.
It is their duty to investigate and submit a report to the Magistrate upon the innocence or involvement of the persons concerned.
In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him.
If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial.
If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case.
What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate.
A further investigation by the police cannot be considered as trenching upon the proceedings before the Court because whatever the police may do, the final discretion in regard to further action is with the Magistrate.
That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation.
[942 F H, 943 A D] Ram Gopal Neotia vs State of West Bengal, AIR 1969 Cal.
316 Hanuman and Anr.
vs Raj.
AIR ; State vs Mehr Singh and Ors., ILR 2 Cal.
LJ 970; over ruled.
(c) Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together.
The Magistrate themselves may take action suo motu.
[944 B] 926 In the instant case; the prosecution did not act with any oblique motive or out of any malice by submitting a charge sheet to the Delhi Court and by withdrawing the case in the Ambala Court.
In the charge sheet filed in the Delhi Court, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court.
The Court granted its permission for the withdrawal of the case.
[944 C E] 3.
Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimentions.
[936 B C] In the present case, (a) the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject matter of the first case, may perhaps be said to have turned out to be part of the conspiracy which is the subject matter of the second case.
When investigation commenced in First Information Report No. RC4 of 1976, apart from the circumstance that the property involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.
[936 C D] (b) A comparison of the two First Information Report coupled with the several facts and circumstances show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case.
The conspirators were different.
Malik and Mehra alone were stated to be the conspirators in the first case, while the three Narang brothers were alleged to be the principal conspirators in the second case.
The objects of the two conspiracies were different.
The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them.
The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London.
The offences alleged in the first case were Section 120B read with Section 420 and 406 Indian Penal Code while the offences alleged in the second case were section 120B read with section 411 IPC and Section 25 of the .
[935 D F] (c) No fault could be found with the police for registering a first information Report against the Narang brothers for the offence of conspiracy to commit an offence under section 411 Indian Penal Code.
In the course of the investigation into this offence, it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by cheating Facts came to light which indicated that the conspiracy which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy.
The fresh facts which came to light resulted in the filing of the second charge sheet.
[935 C D] (d) Neither at the time when the First Information Report pertaining to the Ambala Case was registered nor at the time when the Charge sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture.
The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court.
The First Information Report and the charge sheet were concerned primarily with the 927 offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra.
At that stage, the investigating agency was not aware of any conspiracy to send the pillars out of the country.
It was not known that Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court.
It was much later, that the pillars surfaced in London were discovered to be in the constructive possession of Narang brothers.
Even then, the precise connection between Malik and Mehra on the one side and Narang brothers on the other was not known.
All that was known was that the pillars which were stolen property within the definition of the expression in Section 410 Indian Penal Code were found to be in the possession of Narang brothers in London.
On the discovery of the genuine pillars in the possession of Narang brothers, without anything further to connect Narang brothers with Malik and Mehra, the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers.
That was what was done.
[934 F H, 935 A B] Observation: In the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
[943 E]
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<s>[INST] Summarize the judgementivil Appeal No. 1870 of 1982.
From the Judgment and Order dated 2.9.1981 of the Punjab and Haryana High Court in R.S.A. No. 1556 of 1980.
V.M. Tarkunde and Prem Malhotra for the Appellant.
S.C. Mohanta, Mahavir Singh and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
In this appeal by special leave the appellant, a Bus Conductor of the Haryana Roadways, has challenged the validity of the order of termination of his service on the ground of failure of the punishing authority to give any reason for the impugned order in violation of the principles of natural justice.
A charge was levelled against the appellant that he did not issue tickets to nine passengers, although he had taken the fare from each of them.
A disciplinary proceeding was started against the appellant.
The 1059 Enquiry Officer, after considering the allegations consti tuting the charge, the plea of the appellant in defence and the evidence adduced by the parties including the appellant, held that the charge against the appellant was proved.
The punishing authority agreed with the findings of the Enquiry Officer and by the impugned order terminated the service of the appellant.
Aggrieved, the appellant filed a suit challenging the legality of the order of termination.
It was contended by the appellant that as no reason was given in the impugned order, it was illegal and invalid being opposed to the principles of natural justice.
The Trial Court overruled the said contention and also held that the Civil Court had no jurisdiction to entertain and try the suit.
Accordingly, the Trial Court dismissed the suit.
On appeal, the learned Additional District Judge held in disagreement with the Trial Court and, in our opinion, rightly that the Civil Court had jurisdiction to entertain and try the suit.
The learned Additional District Judge, however, held that the impugned order was a non speaking order not containing any reason and, as such, it was in valid.
In that view of the matter, the learned Additional Judge allowed the appeal, set aside the judgment of the Trial Court and the impugned order of termination of service of the appellant and decreed the suit.
The State of Haryana took the matter to the High Court in a second appeal.
The High Court affirmed the finding of the learned Additional District Judge as to the jurisdiction of the Civil Court, but set aside his finding that the impugned order was a non speaking order.
The High Court took the view that the impugned order was quite legal and valid.
Upon the said findings.
the High Court allowed the appeal and set aside the judgment and decree of the learned Addi tional District Judge.
Hence this appeal by special leave.
It has been urged by Mr. Tarkunde, learned Counsel appearing on behalf of the appellant, that the punishing authority has not applied his mind before passing the im pugned order, which is apparent from the fact that he had not given any reason in justification of the impugned order.
Counsel submits that non application of the mind and failure to give any reason by the punishing authority vitiated the impugned order of termination and, accordingly, it should be set aside.
It has been pointed out by the High Court that the punishing 1060 authority has passed a lengthy order running into seven pages mentioning therein the contents of the charge sheet, the detailed deposition of the witnesses, as accorded by the Enquiry Officer, and the findings of the Enquiry Officer.
The explanation submitted by the appellant has also been reproduced in the impugned order.
Thereafter, the punishing authority stated as follows: "I have considered the charge sheet, the reply filed to the charge sheet, the statements made during enquiry, the report of the Enquiry Officer, the show cause notice, the reply filed by the delinquent and other papers and that no reason is available to me on the basis of which reliance may not be placed on the report of the Enquiry Officer.
Therefore, keeping these circumstances in view, I termi nate his service with effect from the date of issue of this order.
" In view of the contents of the impugned order, it is difficult to say that the punishing authority had not ap plied his mind to the case before terminating the services of the appellant.
The punishing authority has placed reli ance upon the report of the Enquiry Officer which means that he has not only agreed with the findings of the Enquiry Officer, but also has accepted the reasons given by him for the findings.
In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the En quiry Officer and give the same reasons for the findings.
We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non speaking order and does not contain any reason.
When by the impugned order the punishing authority has accepted the findings of the Enquiry Officer and the reason given by him, the question of non compliance with the principles of natural justice does not arise.
It is also incorrect to say that the impugned order is not a speaking order.
There is, therefore, no substance in the appeal.
The appeal is dismissed.
There will, however, be no order as to costs.
In view of the fact that it is the first offence of the appellant, who is said to be the father of five minor chil dren and has no other means of livelihood, the respondent may consider the re employment of the appellant to the post of Conductor or to any other post, to which he may be found to be suitable.
N.P.V. Appeal dismiss.ed.
[/INST]The service of the appellant, a bus conductor, was terminated consequent upon the enquiry conducted into alle gations of non issue of tickets to nine passengers, though fare was collected from each of them.
A suit filed by the appellant, contending that the order of termination was illegal and void and was opposed to the principles of natu ral justice, as no reason was given in the order, was dis missed by the trial court.
It was also held that the Civil Court had no jurisdiction to entertain and try the suit.
The Additional District Judge, on appeal, held that the Civil Court had jurisdiction to entertain and try the suit and set aside the impugned order of termination as invalid as it was a non speaking order not containing any reason.
In second appeal, the High Court affirmed the finding of the Additional District Judge as to the jurisdiction of the Civil Court, but set aside his finding that the impugned order was a non speaking order and held that it was quite legal and valid.
In the appeal to this Court it was contended on behalf of the appellant that the punishing authority had not ap plied his mind before passing the impugned order, which was apparent from the fact that he had not given any reason in justification thereof and this had vitiated the impugned order of termination.
Dismissing the appeal, this Court, HELD: When the punishing authority agrees with the findings of the Enquiry Officer who accepts the reasons given by him in support of such findings, it is not neces sary for the punishing authority to again 1058 discuss evidence and come to the same findings as that of the Enquiry Officer and give the same reasons for the find ings.
[1060E] In the instant case, it is difficult to say that the punishing authority had not applied his mind.
The punishing authority has placed reliance upon the report of the Enquiry Officer, which means he has not only agreed with the find ings of the Enquiry Officer but also accepted the reasons given by him for the same.
When the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him, the question of non compliance with the prin ciples of natural justice does not arise.
[1060E F] It cannot be said that the impugned order is not a speaking order and is vitiated.
[1060F] [In view of the fact that it is the first offence of the appellant, who is said to be the father of five minor chil dren and has no other means of livelihood, the respondent may consider the re employment of the appellant to the post of Conductor or to any other post, to which he may be found to be suitable.] [1060G H]
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<s>[INST] Summarize the judgementAppeal No. 2206 of 1968.
From the Judgment and Order dated the 29 3 1968 of the Rajasthan High Court in D.P. Civil W.P. No. 257/68.
S.M. Jain, for the appellant B. Dutta, for respondent No. 1 Miss Maya Rao, for respondents Nos. 2 5.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the order of the Rajasthan High Court dismissing in limine the petition under articles 226 and 227 of the Constitution of India, field by the appellant against the ' Union of India, the State of Rajasthan and two others, praying for quashing the demand made from the appellant in respect of royalty.
The appellant took on lease 180 acres of land from the Government"of Rajasthan on June 18, 1962 for the purpose of mining gypsum ore for a period of 20 years.
Section 9(2) of the Mines and Minerals (Regulation and Development),Act, 1957 relates to.
royaltries in respect of mining leases.
According to that provision, the holder of a mining lease granted on or after the commencement 138 of the said Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Sched ule in respect of that mineral.
The Second Schedule provides at item No. 13 the rate on which royalty, etc., in re spect of gypsum is to be paid.
According to that item at the relevant time, royalty would .be at the rate of Rs. 1.25 per tonne of gypsum containing 85 per cent and above CaSO42H20 and at the rate of 75 paise per tonne of gypsum containing less than 85 per cent of CaSO42H20.
Royalty was demanded from the appellant in respect of gypsum won by him at the rate of Rs. 1.25 per tonne.
The case of the appellant, however, is that the gypsum which was won by him contained less than 85 per cent of CaSO42H20.
As against that, the stand taken by the respondents is that the appellant failed to furnish.
the analysis reports from a standard laboratory to show that gypsum won by him contained less than 85 per cent CaSO42H20.
Revision filed by the appellant against the decision of the Rajasthan Government to charge royalty at the rate of Rs. 1.25 per tonne was dismissed by the Central Government.
The High Court dismissed the writ petition on the ground that it involved determination of disputed questions of fact.
It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy.
After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court.
There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact.
It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition.
In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
Mr. Sobhagmal points out that the suit brought by the appellant has been dismissed in default and that an applica tion for the restoration of the suit has been filed in the trial court.
Learned counsel for the.
respondents state that they would not oppose the application for restoration of the suit.
We, therefore, dismiss the appeal but with no order as to costs.
M.R. Appeal dismissed.
[/INST]The appellant had leased some land from the Government of Rajasthan for mining gypsum.
A dispute .arose between the parties regarding the rate of royalty payable by the appel lant.
The appellant 's revision petition against the les sor 's decision to charge at the higher rate was dismissed by the Central Government and then his writ petition was dis missed by the High Court on the grounds that the matter involved determination of disputed questions of fact, and that an alternative remedy has been availed of by the appel lant.
Dismissing the appeal the Court,.
HELD: The extent of purity of the gypsum won by the appellant is a question of fact. 'Furthermore, after the dismissal of the writ petition the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition.
The appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
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<s>[INST] Summarize the judgementCivil Appeal No. 682 of 1981.
From the Judgment and Order dated the 21st June, 1980 of the High Court of Bombay in Special Civil Application No. 2039 of 1975.
V.M. Tarkunde, P.H. Parekh and R.N. Karanjawala for the Appellant.
Soli J. Sorabjee, V.N. Ganpule and Mrs V.D. Khanna for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave arises out of a suit for a declaration and injunction and aises questions concerning the interpretation and application of certain provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
566 Peerbhoy Mansion is a building situated at Vithalbhai Patel Road in the city of Bombay.
It was let to a partnership firm, Gold Field Leather Works.
Gold Field sublet a portion of a shop on the ground floor to Manekchand Bhikabhai.
The sub tenant Manekchand sublet it further to Sardar Tota Singh in 1952.
Gold Field filed a suit in 1962 against Manekchand for possession of the premises on the ground of unlawful subletting and carrying out unauthorised structural alterations.
Manekchand resisted the suit and filed a written statement During the pendency of the suit Tota Singh applied to the Court for being added as a defendant, but the application was opposed by Gold Field and was rejected.
Gold Field 's suit was ultimately decreed for possession in accordance with a compromise between the parties.
Tota Singh then filed Suit No. 2454 of 1966 for a declaration that he was a lawful tenant in possession of the premises and for an injunction restraining Gold Field from executing the decree which that firm had obtained against Manekchand It was pleaded that he was in occupation and exclusive possession as a lawful sub tenant for more than fifteen years to the knowledge of Gold Field, that the decree in Gold Field 's suit was a collusive decree, that as the decree had been passed against Manekchand he, Tota Singh, had become a direct tenant of Gold Field under section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the "Bombay Rent Act") and that therefore he was entitled to the declaration and injunction sought in the suit.
Gold Field filed a written statement in the suit and pleaded that they were tenants of the entire building and had sublet the premises to Manekchand, that Manekchand as sub tenant could not sub let the premises further to Tota Singh, and therefore Tota Singh 's sub tenancy was invalid.
The Court of Small Causes tried the suit and decreed it on April 17, 1973.
Gold Field appealed.
The Appellate Bench of the Court of Small Causes dismissed the appeal on April 30, 1975.
The Appellate Bench affirmed the trial Judge 's finding that the premises had been sublet by Manekchand to Tota Singh in 1952, and that on May 21, 1959, when the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 was promulgated and sub section
(2) of section 15 was introduced into the Bombay Act, Manekchand was not in possession.
In the attempt to prove that he was a lawful 567 sub tenant, Tota Singh urged before the Appellate Bench that Gold A Field had permitted Manekchand to sublet the premises to him, but this contention was not entertained by the appellate Bench as there was neither any plea nor any evidence to support it.
The Appellate Bench also rejected the submissions of Tota Singh that he had paid rent directly to Gold Field and therefore had been accepted as a tenant by them.
It found that no rent had paid by Tota Singh to Gold Field after Manekchand 's statutory tenancy, which followed the termination of this contractual tenancy by service of notice had itself been terminated by the decree for possession in Gold Field 's suit One road seemed still open to Tota Singh to establish the validity of his tenancy.
fore the Appellate Bench a concession had been made by counsel for Gold Field.
It was conceded on behalf of Gold Field that Manekchand was their lawful sub tenant.
On that Tota Singh urged that if Manekchand, although a sub tenant, was regarded as a "tenant" by reason of sub section (11) of section 5 of the Bombay Rent Act, then the benefit of sub section
(2) of section 15 should be extended to him.
He was in possession on May 21, 1959 as the sub tenant of a lawful tenant and, therefore, the submission proceeded, his subtenancy would be deemed to be valid This contention found favor with the Appellate Bench.
It held that as Tota Singh was undisputedly in possession on May 21, 1959, the sub tenancy in his favor by Manekchand must be deemed to be a valid sub tenancy.
At this point a debate was raised whether the benefit of sub section
(2) of section 15 had to be confined to a sub tenancy created by a tenant or could be extended to a sub tenancy created by a sub tenant.
Following the view taken by the Bombay High Court in Josephy Santa Vincent v Ambico Industries.(1) the Appellate Bench answered that question in favor of Tota Singh and dismissed Gold Field 's appeal.
Gold Field filed a Special Civil Application in the High Court against the order of the Appellate Bench of the Court of Small Causes and on June 21, 1980 the High Court set aside the decree passed by the Appellate Bench and dismissed Tota Singh 's suit.
The High Court took the view that having regard to certain observations made by this Court in Jai Singh Morarji and Ors.
vs M/s Sovani Pvt. Ltd. and Ors.(2) an extended construction of sub section (2) of section 15 of the Bombay Rent Act so as to include a sub tenancy created by a sub tenant was not justified.
(1) 70 Bombay Law Reporter 224.
(2) ; 568 Tota Singh died during the pendency of the appeal in the High Court, and accordingly this appeal has been preferred by his legal representatives.
The material question before us is whether Tota Singh could rightly claim tenancy rights in the premises and therefore nullify the enforcement as against him of the decree in Gold Field 's suit.
It appears that sub section
(I) of section 15 of the Bombay Rent Act as originally enacted prohibited the sub letting by a tenant of premises let to him, except in the particular cases notified by the State Government under the proviso to that sub section.
A sub letting by the tenant constituted a ground for his eviction under clause (e) of sub .
(1) of section 13.
The rigour of the provision was relaxed by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959, which was brought into force on May 21, 1959.
The Ordinance was replaced by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act 1959 In consequence, sub section
(1) of section 15 of the Act stood amended from the inception of the Bombay Rent Act so that the prohibition against sub letting incorporated in it operated 'subject to any contract to the contrary".
Simultaneously, sub section
(2) was inserted in section 15.
That provision was subsequently substituted by Maharashtra Act 38 of 1962 by the following provision with effect from May 21, 1959: "15 (2) The prohibition against the sub letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub section (1), shall, subject to the provisions of this sub section, be deemed to have had no effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order of a court, any such sub lease assignment or transfer or any such purported sub lease, assignment or transfer in favor of any person who has entered into possession despite the prohibition in sub section (1), as a purported sub lease, assignee or transferee and has continued in possession at the commencement of the said Ordinance, shall be deemed to be valid and effectual for all purposes, and any tenant 569 who has sub let any premises or part thereof, assigned or A transferred any interest therein, shall not be liable to eviction under clause (e) of sub section (1) of section 13".
It is contended for the appellant that as the respondent conceded before the Court of Small Causes that Manekchand was a lawful sub tenant, the High Court should have held that a sub tenancy created by such sub tenant must be deemed valid by reason of sub section
(2) of section 15 of the Bombay Rent Act.
It is urged that the High Court erred in construing Jai Singh Morarji (supra) as laying down the contrary.
The case for the respondent is that sub section
(2) of section 15 benefits a sub tenancy created by the original tenant only and does not extend to a sub tenancy created by a sub tenant.
There can be no doubt that upon the amendment of sub section (1) of section 15 by the Ordinance and by its related Act the prohibition against sub letting did not operate in those cases where the sub letting was permitted by contract between the landlord and tenant.
In all such cases, if the landlord had permitted the tenant under a contract between them to sublet the premises, no question would arise of a need to validate those sub tenancies.
The relevant amendment in subs.
(1) of section 15 was deemed to have always been part of the sub section.
It is in this light that we must determine the scope of sub section
(2) of section 15.
Sub section
(2) of section 15 raises the ban from all sub letting effected before May 21, 1959, the date of commencement of the Ordinance, provided the provisions of that sub section are fulfilled.
Any such sub lease shall be deemed to be valid provided the sub lessee has entered into possession before the date of commencement of the Ordinance and has continued in possession on such date.
This is an especial provision and marks a departure from the general law.
It does not refer to sub tenancies which are permitted by contract between the landlord and the tenant, but relates to sub tenancies which are not so protected.
It will be noted that the removal by sub section
(2) of section 15 of the prohibition is limited only to those sub tenancies which were created before May 21, 1959.
Such a limitation would be inappropriate to sub tenancies permitted by contract which could be created regardless of whether they were brought into existence before May 2l, 1959 or after that date.
Also, the sub tenancies covered by sub s (2) of section 15 would be regarded as valid only if the sub tenant had entered into possession before May 21, l959 and was continued in possession on that date.
Such a requirement would be wholly inconsistent in the case of sub tenancies permitted by contract.
Inasmuch as sub s.(2) of section 15 specifically attaches the condition that the 570 sub tenant should have been in possession before the commencement of the Ordinance and should have continued in possession on that date, it is apparent that such a provision could be related only to illegal sub tenants, that is to say sub tenants who were let in and given possession without any contractual right conferred by the land lord on the tenant to do so.
The protection conferred by sub section
(1) of section 15 is necessary for such tenancies only, and not for a sub tenancy which is permitted by the terms of the contract and which therefore falls altogether outside the prohibition embodied in sub s.(l) of section 15.
The result, therefore, is that sub section
(2) of section 15 relates to sub tenancies not permitted by contract between the landlord and tenant and which would.
but for the said sub section
(2), fall within the prohibition enacted in the amended sub section (1) of section 15.
In the present case, it was conceded on behalf of Gold Field before the Appellate Bench of the Court.
Of Small Causes that Manekchand was a lawful sub tenant He could not have been a lawful sub tenant by virtue of sub section
(2) of section 15 because on May 21, 1959 he was not in possession of the premises, which in fact had already passed as early as 1952 into the possession of Tota Singh.
Manek chand could have been lawful sub tenant only on the assumption that the sub tenancy was permitted under the contract between Gold Gold Field and their landlord.
As the existence of such a term in the contract would be a question of fact, the concession by counsel for Gold Field must be regarded as binding in this case on Gold Field.
It is urged for the respondent that the concession made by counsel for Field can be of no avail because any agreement by a tenant creating a sub tenancy, being directly opposed to sub section
(I) of section 15 as originally enacted, would be void The submission, it seems to us, is without force.
It must be remembered that sub section
(I) of section 15 was amended by inserting the words "but subject to any contract to the contrary" in 1959 retrospectively, the words being deemed always to have been inserted in that sub section.
We must take it by reason of the legal fiction employed that those words were already part of the sub section when Gold Field agreed to sub let the premises to Manekchand.
The cases, P.D. Aswani vs Kavashah Dinshah Mulla(l) and Waman Shriniwas Kini vs Ratilal Bhagwandas and Co.,(2) on which learned counsel for the respondent relies, were decided before sub section
(1) of section 15 was amended and therefore did not take into account the effect of such amendment.
(1) [1953] 56 Bombay Law Reporter 467.
(2) [1969] supp.
2 S.C.R. 217.
571 Therefore, the present case is one where Gold Field is a tenant, A Manekbhai is a lawful sub tenant and the latter has created a further sub tenancy in favor of Tota Singh.
The question is whether the further sub tenancy can fall within the scope of sub section
(2) of section 15.
Now, if regard be had to clause (I) of sub s (l l) of section 5, it is apparent that in respect of the subsequent subtenancy Manekbhai could be described as a tenant and Tota Singh as his sub tenant And if that is so, there is no reason why Tota Singh 's sub tenancy should not be regarded as a valid sub tenancy in as much as it was created before May 21, 1959 and he had entered into possession of the premises before that date and was continuing possession on that date.
But it is urged on behalf of Gold Field that this Court has held in Jai Singh Morarji (supra) that sub s (2) of section 15 does not validate a sub tenancy created by a sub tenant.
That was a case where the original landlord filed a suit against the tenant Ochhavlal for possession on the ground, inter alia, of illegal subletting by Ochhavlal.
The suit was decreed, and the plaintiff obtained possession.
Ochhavlal had sub l t the premises to Sovani and Sovani had sub let them to a private limited company.
On application by the Company against dispossession in the execution proceedings, the trial court upheld the Company 's claim to possession, but this Court ultimately rejected the Company 's claim and upheld the right of the original landlord to possession.
The facts of that case disclose that there were two prohibited" sub tenancies, the first was created by Ochhavlal in favor of Sovani and the subsequent was created by Sovani in favor of the Company.
The benefit of sub section
(2) of s 15 could have been extended to Sovani only if the conditions of the sub section were satisfied If they were satisfied in the case of Sovani, the benefit could not be extended again in favor of the Company.
That would obviously be so because the condition as to possession on May 21, 1959 could not possibly be satisfied by the subsequent sub tenant if the original subtenant was in possession on that date.
If, however, the subsequent sub tenant was in possession on May 21, 1959, then clearly neither sub tenancy can be regarded as valid.
To be valid, the first subtenancy had to satisfy the condition of possession by that sub tenant on May 21, 1959, which ex hypothesi was not possible.
And if the original sub tenancy was invalid the subsequent sub tenancy would also be invalid.
The subsequent sub tenancy would be valid only if the original sub tenant had legal interest to transfer to the subsequent sub tenant.
It is in the light of this analysis that the decision of this Court in Jai Singh Morarji (supra) needs to be appreciated, in particular the passage on page 607 of the Report which reads: 572 "The answer to the question is whether the respondent Private Company was a sub tenant prior to 1959 and continued in possession at the commencement of the Ordinance in 1959.
Ochhavlal in the present case gave the sub lease to Sovani before the Ordinance.
It is an indisputable feature in the present case that Sovani did not continue in possession at the commencement of the Ordinance of 1959.
Sovani became a Director of the Private Company.
It is the Private Company which claims to be a sub lessee.
The Private Company was in the first place not a sub lessee of the tenant but a subsequent assignee from the sub lessee.
Secondly, SOvani who was the sub lessee not in possession on the date of the Ordinance on 21 May, 1959.
It was the Private Company which was in possession.
Therefore, the Private Company is not within the protection of section 15 (2) of the Act " The learned Judges were not unaware of the terms of sub section
( 1) of section 5, as is evident from the passage on page 608 of the Report.
It is then urged by learned counsel for the respondent that clause (a) of sub section
(11) of section S of the Bombay Rent Act cannot be called in aid by the appellant as sub section
(1) of section 15 applies to contractual tenants only.
We are referred to Anand Nivas (P) Ltd. vs Anandji,(1) where this Court laid down that the expression "tenant" in sub section
(1) of section 15 of the Bombay Rent Act means a contractual tenant and not a statutory tenant.
The submission can be of no assistance to the respondent.
Having regard to the concession made by counsel for Gold Field in the court below that Manekchand was a lawful tenant, which position, as we have discussed earlier, necessarily implies a valid contract of tenancy between Gold Field and Manekchand the latter must be regarded as a contractual tenant when he sublet the premises to Tota Singh.
No question arises of a statutory tenant purporting to sub let his interest to a sub tenant.
Upon the aforesaid considerations, in our judgment the appeal must succeed.
The appeal is allowed with costs.
N.V.K. Appeal allowed.
(1) [196414 S.C.R. 892.
[/INST]Muthammal, the absolute owner of the suit properties, executed a Deed of Settlement dated May 17, 1925 (exhibit A 3) whereby she endowed the suit properties to a temple of her family deity.
She constituted herself as the first trustee for her life and after that, her husband and mother were to be the trustees and after their demise, the respondents ' heirs were to be the trustees.
Five years later i.e. On January 28, 1930, she purported to cancel and revoke the trust (settlement), by getting the Deed of Cancellation registered.
Thereafter, certain mortgages were executed by her in respect of the properties and later on the properties were sold by her to the father of appellants Nos.
I and 2.
She died on October 1, 1960.
The respondents plaintiffs, claiming to be the trustees of the endowment, filed a suit on August 29, 1962 for possession of the properties challenging the alienations that were made in favour of the appellants ' father.
The appellants contested the suit and raised the plea of adverse possession and the suit being barred under Article 144 of the Act.
The trial court held that the Deed of Settlement itself was not a genuine deed, but even if it were, the suit was barred under Article 144.
In the appeal by respondents plaintiff, the Appellate Court held that Deed of Settlement was valid and genuine and in fact it effected a legal endowment in favour of the diet, the original settlor having disvested herself of the ownership completely and consequently the Deed of Cancellation was ineffective in law.
The suit was regarded as one falling under article 134B of the Act and the suit having been filed within 12 years from the death of the settlor was held to be within time and the respondents Plaintiffs ' ' suit was decreed.
In the second appeal filed by the appellants, the High Court confirmed the first Appellate Court 's decree.
810 on appeal to this Court, the appellants, relying on the decision in Srinivas vs Ramaswami,[1966]3 S.C R 120, contended that there was a resignation on the part of the settlor as a Trustee and such resignation, if not overt and express, must be deemed to have taken place by reason of the fact that she herself had executed and registered the Deed of Cancellation (Ex.
B 1) on January 21, 1930 and thereafter she had alienated the proper ties in favour of the appellants ' father and she even left the village for quite a few years and since the suit was filed in the year 1962, long after the expiry of 12 years from such deemed resignation, it was barred.
The respondents plaintiffs, however, contended that there was no plea of limitation specifically raised on the basis that there was any deemed resignation on the part of the settlor and as the parties did not lead any evidence focussing their attention on this aspect of the matter and if there be some evidence vaguely or generally led by the parties on this aspect the same should be ignored.
alternatively, it was contended that even other wise by the mere execution of a Deed of Cancellation and indulgence in alienations of properties by the settlor in favour of the appellants ' father no deemed resignation should be implied for a wrongful Cancellation Deed, and a wrongful alienation cannot affect her character as a trustee of the properties under the Deed of Settlement which was complete and under which she had divested herself of the ownership of the properties irretrievably.
The starting point of limitation for the suit must be held to be the date on which the settler died.
Dismissing the appeal, ^ HELD: 1.
Limitation in the instant case, will have to be regarded as having commenced on the date of the death of the settlor and the respondents plaintiffs ' suit would be within time.
[814E] 2.
Where a trustee wrongfully alienates some trust property and even if the entire trust property is alienated, he does not cease to be a trustee.
By wrongfully executing a Deed of Cancellation the settlor cannot effectively revoke the settlement and if such settlor happens to be the trustee he shall continue to be the trustee of the settlement.
[813 a F] In the instant case, there is a clear finding recorded by the first Appellate Court, and the High Court that the Deed of Settlement dated May 17, 1925 was valid and complete in all respects where under the settlor had divested herself of the properties which she had endowed to the temple, and both the Cancellation Deed as well as the alienations were ineffective and wrongful and, therefore, it could not be said that by indulging in these acts she had resigned her position as a trustee of the endowment.
[813 F G] (3) The fact that the settlor had left the village for a few years is neither here nor there.
The facts regarding performing of Puja of the deity in the temple by some other persons and contribution towards the expenses of the temple by some devotees are really equivocal and would not be conclusive of the matter on the point of the settlor having resigned inasmuch as the temple which was a village temple was already in existence, 811 to which only properties had been endowed and the temple was a public A religious institution to which the endowment had been made and as such the fact that certain expenses of the temple were contributed by devotees or members of the public would hardly be indicative of the fact that the settlor had resigned from the position as a trustee qua the endowed property.
Similar, would be the position with regard to the fact that some persons were performing the Puja which would not be unnatural in the case of a public religious institution.
[813H; 814A C] There could conceivably be a deemed resignation or a deemed removal but for inferring the same some additional facts would be required to be proved.
The facts on which reliance had been placed by the appellants by themselves are insufficient to warrant the inference that there was a deemed resignation [814C D] Srinivas vs Ramaswami, [19661 3 S.C.R. 120, referred to.
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<s>[INST] Summarize the judgementminal Appeal No. 170 of 1967.
Appeal by special leave from the judgment and order dated October 25, 1966 of the Bombay High Court in Criminal Appeal No. 805 of 1965.
S.S. Kavalekar, K. Rajendra Chaudhuri and K.R. Chaudhuri, for the appellant.
H.R. Khanna, B.D. Sharma and S.P. Nayar, for respondent No.1.
The Judgment of the Court was delivered by P. Jaganmohan Reddy, J.
This appeal is by special leave directed against the judgment of the Bombay High Court.
81 The appellant is the author of a short story entitled Shama published in the 1962 Diwali Issue of Rambha, a monthly Marathi Magazine, which story is said to be obscene.
Criminal proceedings were, therefore, initiated before the first class Magistrate, Poona by the complainant Bhide under section 292 I.P.C. against the Printer and Publisher accused 1, the writer of the story accused 2 and the selling agent accused 3.
The complainant stated that he had read the aforesaid Diwali issue of Rambha and found many articles and pictures in it to be obscene which are calculated to corrupt and deprave the minds of the readers in general and the young readers in particular.
The Complainant further relented to several other articles in the same issue such as the story of Savitri and certain cartoons but we are not now concerned with these because both the Magistrate as well the High Court did not think that they offended the provisions of section 292 I.P.C. the magistrate after an exhaustive consideration did not find the accused guilty of the offence with which they were charged and, therefore, acquitted them.
The complainant and the State filed appeals against this judgment of acquittal.
Before the High Court it was conceded that there was no evidence that accused No. 3 had sold any copies of the issues of Rambha and accordingly the order of acquittal in his favour was confirmed.
In so far as the other two accused are concerned it reversed the order of acquittal and convicted the printer and publisher accused 1 and the writer accused 2 under section 292 I.P.C. but taking into consideration the degree of obscenity in the passages complained of a fine Rs. 25/ only was imposed on each of the accused and in default they were directed to suffer simple imprisonment for a week.
It was also directed that copies of the magazine Rambha in which the offending story was published and which may be in possession and power of the two accused be destroyed.
The allegation, against the accused is that certain passages in the story of Shama at pp.
111 112, 114, 116, 118 121, 127, 128, 131, and 134 are said to be obscene.
In support of this the complainant examined himself and led the evidence of Dr. P.G. Sahstrabudhe and Dr. G.V. Purohit in support of his allegation that the novel is obscene and that the writer and publisher contravened the provisions of section 292 I.P.C. Accused No. 1 stated that the story of Shama was written by an ;able writer which depicted the frustration in the life of a poet and denied that it was obscene.
The writer Kakodar, accused No. 2 claims to have written about 60 such stories.
which are published in different periodicals by reputed publishers.
He also denies that Shama is obscene and states that he has introduced certain characters in order to condemn the worst and glorify the best and it was never his intention to titillate the sex feelings of the 82 readers, but on the other hand his attempt was to achieve the literary and artistic standard which was in keeping with the style of some of the able and successful writers of Marathi literature.
In support of his defence, he examined Shri Keluskar and Prof. Madho Manohar D.Ws. 1 and 2 respectively.
The Court on its own summoned and examined Prof. N.S. Phadke and Acharya P.K. Atre.
Both the magistrate as well as the learned Judge of the High Court were conversant with Marathi and they seem to have read the story of Shama in the original, an advantage which we have not got.
However, on a consideration of the offending passages in the story to which we shall refer presently, they came to different and opposite conclusions.
It is apparent that the question whether a particular article or story or book is obscene or not does not altogether depend on oral evidence because it is the duty of the court to ascertain whether the book or story or any passage or passages therein offend the provisions of section 292.
Even so as the question of obscenity may have to be judged in the light of the claim that the work has a predominant literary merit, it may be necessary if it is at all required, to rely to a certain extent on the evidence and views of leading litterateurs on that aspect particularly when the work is in a language with which the Court is not conversant.
Often a translation may not bring out the delicate nuances of the literary art in the story as it does in the language in which it is written and in those circumstances what is said about its literary quality and worth by persons competent to speak may be of value, though as was said in an earlier decision, the verdict as to whether the book or article or story considered as a whole panders to the prurient and is obscene must be judged by the courts and ultimately by this Court.
What is obscenity has not been defined either in section 292 IPC or in any of the statutes prohibiting and penalising mailing, importing, exporting, publishing and selling of obscene matters.
The test that has been generally applied in this country was that laid down by Cockburn, C.J. in Hicklin 's case(1) and even after the inauguration of the Constitution and considered in relation to the fundamental right of freedom of speech and expression this test, it has been held, should not be discarded.
In Hicklin 's case(1) while construing statutes 20 and 21 Victoria, a measure enacted against Obscene books, Cockburn, C.J. formulated the test in these words: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands publication of (1) 83 this sort may fail.
It is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thought of most impure and libidinous character.
" This Court has in Udeshi vs State of Maharashtra(1) considered the above test and also the test laid down in certain other American cases.
Hidayatullah, J. as he then was, at the outset pointed out that it is not easy to lay down a true test because "art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross.
" It was also pointed out in that decision at p. 74, "None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for.
It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
It is not necessary that the angels and saints of Michelangelo should be made to wear breeches before they can be viewed.
If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days.
Half the book shops would close and the other half would deal in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act.
" It is, therefore, the duty of the court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fail and in doing so one must not overlook the influences of the book on the social morality of our contemporary society.
We can do no better than to refer to this aspect in the language of Hidayatullah, J. at p. 76: "An overall view of the obscene matter in the setting of the whole work would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall." (1) ; 84 Referring to the attempt which our national and regional languages are making to strengthen themselves by new literary standards after a deadening period under the impact of English, it was further observed at p. 77, "that where obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.
In other words, treating with sex in a manner offensive to public decency and morality (and these are the words of our Fundamental Law), judged of by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds, must determine the result.
We need not attempt to bowdlerize all literature and thus rob speech and expression of freedom.
A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.
" Bearing in mind these observations and the tests laid down in Udeshi 's case,(1) we propose to examine, having regard to our national standards, the passages in Shama to ascertain in the light of the work as a whole whether the treat with sex in such a way as to be offensive to public decency and morality as can be considered likely to pander to lascivious, prurient or sexually precocious minds.
The second appellant writes about the life of a poet Nishikant who left school in the days of freedom struggle, wrote revolutionary poems, but as the freedom struggle waned he did not join school as others had done notwithstanding his brother 's advice that he should pass the metric so that he could be employed in service.
As he was mostly unemployed, he was living on his brother and on the bounty of his sister in law who was kind and considerate to him.
Nishikant, it will appear, is emotional, sensitive and has the power to discern right from wrong.
The story starts ,with his being employed as a teacher and his meeting Sharma, the ' Music teacher in the school.
His attraction for her and the opportunity she gives him to meet her alone in her room fills him with a sense of foreboding lest he may have to endure the pangs of suffering which he had to undergo.
in his two earlier affairs with Neela and Vanira.
The poet recalls these two affairs individually and we get the impression that the pain which he underwent should not be repeated.
It is more as a repellent to any further involvement with Shama that these experiences are related.
(1) ; 85 Neela who is about 17 years of age is the daughter 015 a distant maternal cousin of his mother.
As she had reached the marriageable age, her father in Goa, Wasudeo who always treated Nishikant 's mother like his own sister is anxious to get her married to some eligible youngman, but evidently the opportunity for choosing the right person was remote.
So he suggests to Nishikant 's mother that Nishikant should come and bring Neela to Bombay to live with them where they would have better opportunity of choosing a youngman for her to be married.
Nishikant who was appointed in a newspaper office was at first reluctant but his sister in law persuades him and so he goes to Goa.
When he meets Neela, she had changed and was not as ugly as when he had seen her earlier.
The author then depicts the slow but steady maturing of the love between them, the seeking of and getting of opportunities to be near to each other, their having to sleep in the same bed while on the boat coming to Bombay and ultimately falling in love with each other which developed during Neela 's stay in Bombay.
During Neela 's stay with Nishikant 's family the love between her and Nishikant became intense as a result Nishikant proposes to marry her and writes to her father for his consent.
They wait for a reply but unknown to Nishikant, Neela receives a reply from her father rejecting the proposal on the ground that Nishikant is unemployed and would not join Government service even though he had suggested it to him.
He says in that letter that poetry may bring him fame but would not give him a livelihood.
As he was entirely dependant on his brother for his maintenance, the father refused to give his consent in the interest of Neela 's happiness and told her that he was coming back to fetch her.
As Neela was in love with Nishikant but she knew that she would not be married to him, she encourages him to bring their love to culmination.
This state of affairs lasted for a few days before her father took her away.
About two months later Nishikant receives an invitation card for Neela 's marriage and thereafter he received another letter written by Wasudeo to his daughter to which we have earlier referred and which also.
contained at the back of it Neela 's message to Nishikant asking him to forget her.
Even after four years he was unable to forget Neela and had taken to drinking and coming home late.
He was idle for long spells and whenever he thought of Neela he wrote a poem.
Then one day he was introduced to Vanita who was a graduate and a married woman who had left her husband.
She was a critic of stories and novels.
When they met, she had praised his poems and had invited him to come to.
her room ostensibly to discuss his poetry.
Vanita is shown as an oversaxed woman, experienced and forward, making advances and suggestions.
Ultimately she and Nishikant have several affairs till one morning 86 he finds that the person who had introduced her to him was coming out of her room and when he went in he found Vanita sleeping naked.
His spirit revolted seeing her in that condition.
He was greatly upset at her recalcitrance when he asked her how many more men she had.
She replied that it had nothing to do with him, that he had got what he wanted and she does not want to be a slave to any person.
He retorted with indignation that he did not wish to see her face and walked out.
He had then made up his mind not to have any relations with any woman.
It was with such unpleasant experiences that when he met Shama and was attracted to her he was hesitating and avoiding meeting her alone but circumstances conspired to bring them together and again another affair developed between them.
He encourages Shama to sing, writes lyrics for her songs and when she gives a performance in school he arranges for a radio and gramophone representatives to be present there.
Her music was appreciated and she began to get audition from these sources.
It appears one of the school teacher Kale had earlier attempted to make love to Shama and she had slapped him.
When Kale informs Nishikant that he knows about his affairs with Shama, Nishikant gets angry and tells him that he knows how he was slapped by Shama for making advances to her.
This enraged Kale and he seems to have taken his revenge by maligning the character of Shama to the Principal.
As a result of this, the Principal dismissed her.
Hearing this, Nishikant gets angry, goes to the Headmaster and accuses him of being an accomplice of Kale and leaves the service.
He then persuades Shama to start a music school, later gets her engagements in films as a playback singer for which he was asked to write lyrics.
Shama 's reputation as a singer grows rapidly in the Marathi public.
It was then that her uncle knowing of it comes to see her and makes insinuations against Nishikant who is offended and hurt because Shama does not prevent her uncle but listens to him without a demur.
Periodical quarrels are witnessed because Shama becomes more status minded, begins to think of her wealth and position and moves into wealthy quarters all of which are against Nishikant 's outlook and temperament.
Both began to fall apart and the visits of Nishikant to Shama became rare.
Even though Nishikant lives in poverty, he is too proud to ask her money and is not willing to live with her on her conditions.
He stays away from her, showing that he has pride, self respect and spirit of sacrifice.
Suddenly a realisation comes to Shama that she had wronged Nishikant and that she owed everything to him, and therefore has an intense desire for reconciliation.
In this state of affairs When she hears that he is taking part in the Kavi Samelan on the radio she gets into the car and asks her driver to drive fast 87 to the radio station.
On tiffs pitch of expectant reconciliation and ultimate reunion the story ends.
The story read as a whole does not, in our view, amount to its being a pornography nor does it pander to the prurient interest.
It may not be of a very high literary quality and may show immaturity and insufficient experience of the writer, but in none of the passages referred to by the complainant do we find anything offending public order or morality.
The High Court itself did not consider the description of Neela when Nishikant meets her in Goa (at p. 107) objectionable, nor the narration and the description of the situation which is created for Nishikant and Neela on the way back to Bombay from Goa when for want of room they had to sleep on a single bed (p. 112) as obscene.
The passages at pp.
112, 114, 119 120 and 131 have been found by the High Court to come within the mischief of section 292 I.P.C. We have been taken through the corresponding passages in the English translation and even allowing for the translation not bringing out the literary or artistic refinement of the original language, we find little in these passages which could be said to deprave or corrupt those in whose hands the book is likely to fall, nor can it be said that any of the passages advocates, as the High Court seems to think, a licentious behaviour depraving and corrupting the morals of adolescent youth.
We do not think that it can be said with any assurance that merely because adolescent youth read situations of the type presented in the book, they would become depraved, debased and encouraged to lasciviousness.
It is possible that they may come across such situations in life and may have to face them.
But if a narration or description of similar situations is given in a setting emphasising a strong moral to be drawn from it and condemns the conduct of the erring party as wrong and loathsome it cannot be said that they have a likelihood of corrupting the morals of those in whose hands it is likely to fall particularly the adolescent.
In the passage at pp.
113 114 Nishikant takes Neela out to show the sights of the city of Bombay but instead takes her to a picture where after the lights go off, seeing a soldier and his girl friend in front kissing, they also indulge in kissing.
Then as we said earlier, when the love between them develops Nishikant wanted to marry but the father of the girl was unwilling.
Neela realising that their love could never be consummated encourages him to bring it to a culmination.
In this way they enjoy unmarried bliss for a few days until Neela 's father takes her away.
We agree with the learned Judge of the High Court that there is nothing in this or in the subsequent passages relating to Neela, Vanita and Shama which amounts to poronography nor has the author indulged in a description of the sex act or used any 88 language which can be classed as vulgar.
Whatever has been done is done in a restrained manner though in some places there may have been an exhibition of bad taste, leaving it to the more experienced to draw the inferences, but certainly not sufficient to suggest to the adolescent anything which is depraving or lascivious.
To the literate public there are available both to the adults and the adolescents innumerable books which contain references to sex.
Their purpose is not, and they have not the effect of stimulating sex impulses in the reader but may form part of a work of art or are intended to propagate ideas or to install a moral.
The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society.
What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country.
But to insist that the standard should always be/or the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected, would be to require authors to write books only for the adolescent and not for the adults.
In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and artists to give expression to their ideas, emotions and objectives with full freedom except that is should not fall within the definition of 'obscene ' having regard to the standards of contemporary society in which it is read.
The standards of contemporary society in India are also fast changing.
The adults and adolescents have available to them a large number of classics, novels, stories and pieces, of literature which have a content of sex, love and romance.
observed in Udeshi 's(1) case if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious.
In the field of art and cinema also the adolescent is.
shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in anyway tending to debase or debauch the mind.
What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds.
The charge of obscenity must, therefore, be judged from this aspect.
We do not think that any of the impugned passages which have been held by the High Court as offending section 292 I.P.C. can (1) ; 89 be said to pervert the morals of the adolescent or be considered to be obscene.
In this view, we allow the appeal, set aside the conviction and fine.
The fine if paid is directed to be refunded.
R.K.P.S. Appeal allowed.
[/INST]The respondent by a deed executed in 1951 took on lease from the appellant certain premises in Bangalore.
It was stipulated in the deed that the lease would be for a period of 10 years in the first instance with an option to the lessee to renew the, same every ten years so long as desired.
When in 1961 the first period of ten years was about to expire the respondent asked for a renewal of the lease.
On the appellant refusing to do so, the respondent filed a suit for specific performance, The suit was decreed by the trial court, the first appellate court and the High Court.
Appeal in this Court was filed by special leave.
The contention of the 'appellant was that the lease in question being in the first instance for ten years only was not a lease in perpetuity as contemplated by section 105 of the Transfer of Property Act; however the clauses relating to renewal which were covenants that ran with the land offended the rule against perpetuity in section 14 of the Act.
HELD: The 'appeal must be dismissed.
(a) Section 14 of the Act is applicable only where there is transfer of property.
Even if creation of a lease hold interest is a transfer of a right in property and would fall within the expression 'transfer of property ' the transfer was for a period of ten years only by means of the indenture in the present case.
The stipulation relating to renewal could not be regarded as transferring property or any rights therein.
[143 B] (b) The option of renewal given to the lessee did not contain a covenant which created an interest in the property of the nature that would fail within the ambit of section 14.
[143 F] Ganesh Sonar vs Purnendu Narayan Singha & Ors.
(1962) Pat.
201, applied.
Woodall vs Clifton, [1905]2 Ch.
257, referred to.
(c) In English law the, court would give effect to a covenant for perpetual renewal so long as the intention is clear and it will not be open to objection on the ground of perpetuity.
In India the equitable rule that the burden of a covenant runs with the land is to be found in section 40 of the Transfer of Property Act, but that section its.elf expressly says that the right of the covenanted is not an interest in the land bound by the covenant nor an easement.
It is not 'an interest because the Act does not recognise equitable estate.
[143 G; 144 F] Thus even on the footing that the clauses relating to renewal in the lease, in the present case, contained covenants running with the land the 141 rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property had been created of the nature contemplated in the provision.
[144 G] Muller vs Trafford, [1901]1 Ch. 54, Weg Motors Ltd. vs Hales & Ors. , 188 and London & South Western Rly.
vs Goreto, , 580, referred to.
</s>
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<s>[INST] Summarize the judgementiminal Appeal No. 67 of 1971.
Appeal by special leave from the judgment & Order dated the 17th July, 1970 of the Gujarat High Court in Crl.
A. Nos. 287 and 128 of 1969.
R. H. Dhebar and R. N. Sachthey, for the appellant.
A. section Qureshi, Vinal Deve and Kailash Mehta, for the respondents.
The Judgment of the Court was delivered by UNTWALIA, J.
There is a locality known as Nani Malokoad in the town of Kaloy, District Mehsena, Gujarat.
In this locality is a road (lane) running north to south.
Bai Fatima, respondent No. 1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of Allarakha Hussemkhan.
He had a younger brother named Gulabkhan Husseinkhan.
The victim of the occurrence is the said Gulabkhan.
Both the brothers had their houses adjacent to each other in this lane facing east.
The northern one was in occupation of and belonged to the deceased and the southern one was of Allarakha.
There are a number of other houses situated around the houses of the two brothers.
One such house is of Sardarkhan Muradkhan facing west abutting the road, two houses north of the house of the deceased.
Jamiyatkhan is the son of Sardarkhan, father in law of the deceased Gulabkhan.
In the month of June, 1968 a complaint. was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha, husband of respondent no.1 was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality.
That had caused friction between the families of the two brothers.
On 27.6.1968 according to the prosecution story there were two incidents in the Angana i.e. space on the road in front of the houses of the parties .one was at 5.30 p.m. and the other at 6.30 p.m.
The, prosecution case is that a she goat of Gulabkhan strayed in the house of Fatima. 'She began giving blows to the goat.
There, were altercations between the members of the families of the, two brothers.
Res pondent no.2.
who is a married daughter of respondent no.1 and her son Liyakat who was 15 years old on the date of occurrence were also present at the time of this quarrel.
They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi a neighbourer and a close relation of Nannubibi Respondent no.1 is said to have come out with a stick from her house, and went to Gulabkhan to strike him.
One Allarakha Rehman a close neighbour came there, caught hold of the stick, quietened respondent No. 1 and sent her back to her house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angana of 995 Jamiyatkhan son of Sardarkhan, father in law of Gulabkhan.
Respondent No. 1 about an hour later went with a stick in her hand and hurled a blow on Gulabkhan.
Nannubibi intervened and got the blow on her right hand finger.
Gulabkhan directed respondent no.1 to go back to her house by gestures of his hand and he also proceeded and pushed her towards her house.
When Gulabkhan reached the Angana of his house, respondent no.1 is said to have put her leg across his legs with the result that he fell down on his back.
Respondent no.2 caught hold of the hands of Gulabkhan.
Respondent no.1 sat on his legs and squeezed his testicles and pulled them.
The boy Liyakat is said to have bitten the deceased on the left shoulder.
Gulabkhan thereafter was made to recline on a cot.
Eventually he.
died of the shock due to the pressing of his private parts by respondent No. 1.
Information was sent to the Police Station.
A complaint of Nannubibi was recorded at about 10.30 p.m.
Liyakat was sent for trial before the Juvenile Court.
Respondent nos.
1 and 2 were tried by the Sessions Judge, Mehsana.
The learned Sessions Judge held the prosecution story to be proved beyond reasonable doubt in all material particulars.
Finding that the injury caused to Gulabkhan in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted respondent no.1 under section 304 Part I of the Indian Penal Code and sentenced her to undergo rigorous imprisonment for 7 years.
She was further convicted under section 323 and was given a concurrent sentence for 3 months under this count.
Respondent no.2 was convicted of an offence under section 323 read with section 114 of the Penal Code and was sentenced to undergo rigorous imprisonment for 3 months.
The respondents filed an appeal in the Gujarat High Court from the order of conviction recorded against them and the State went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respondent no.2 The State appeal was dismissed by the High Court and that of the respondents allowed.
The State came to this Court and obtained special leave from the judgment of acquittal recorded by the High Court in the respondents appeal.
The dismissal of the State appeal by the High Court is final.
The three eye witnesses to the occurrence are P.W.3 Nannubibi, P.W.4 Noorbibi and P.W.6 Jenatbibi.
The latter two are neighbourers and related to Nannubibi.
The Trial Judge believed their evidence.
He also believed the evidence of P.W.7 Gulamanabi Shermohmad a close neighbour of the parties to whom an oral dying declaration is said to have been made by Gulabkhan before his death.
It may be stated here that P.W.8 Rasulbhai was sitting in the Bazar at some distance from the place of occurrence in the evening of the 27th June, 1968.
He got the information at about 9.45 p.m. about the death of Gulabkhan.
He rushed to the Police Station and merely informed about his death.
It is also necessary to note here that respondent no.1 had received some injuries on her person in either of the incidents which took place 996 on the evening of 27th June, 1968.
Prosecution did not explain the injuries on her person but the Trial Judge inferred that they must have been caused in the first incident which took place at 5.30 p.m. and not in the second which was the subject matter of the charge against the respondents.
The High Court has held in favour of the prosecution on the main part of the occurrence, namely, squeezing of the testicles of the deceased by respondent no.1 as a result of which he died.
Yet it has disbelieved the prosecution case in regard to some other aspects.
It has not accepted the prosecution story that there were two incidents in the evening.
Nor has it accepted the version that shortly after the first incident Gulabkhan and Nannubibi had gone to the Angana of Jamiyatkhan.
The, story of falling down of the deceased by the tripping of his legs by respondent no.1 has been discarded by the High Court.
So also the evidence of P.W.7 Gulamnabi.
Even after believing the main part of the occurrence the High Court has exonerated respondent No. 1 of the charges levelled against her and consequently respondent no.2 also on the ground that she must have done so in exercise of her right of private defence in as much as she must have squeezed testicles of the deceased when he was showering blows with a stick on respondent No. 1 in order to protect herself.
In our opinion there are two many conjectures, surmises and contradictions in the judgment of the High Court.
The respondents bad not examined any witness to give any counter version of the occurrence or to justify the assault on testicles of the deceased which resulted in ' his death.
The High Court has said in its judgment : (1) "There is also no doubt that since some days prior to the date of the incident the relations between the deceased and the family of accused no.1 were not cordial." (2) "There is no doubt that a quarrel did arise on that day" (meaning thereby the date of occurrence "between the deceased and accused No. 1 in respect of a goat." (3) "It is very reasonably clear that the squeezing of the testicles of the deceased was in all probability the act of accused no.1" (4) "There is further no doubt that the deceased did die on account of squeezing of his testicles in the evening that day at round about 8.30 p.m." On the findings aforesaid if the claim of right or private defence put forward on behalf of respondent no.1 was untenable as we shall show hereinafter it was wholly so, then it is plain that the High Court ought not to have interferred with the order of conviction recorded by the Trial Court.
Even in face of the said findings the High Court criticized the prosecution case as regards some details of the occurrence or the ,incidents and rejected a good portion of it.
We shall briefly show that the said rejection by the High Court was wholly unjustified.
997 There were two incidents according to the prosecution case which happened in the evening at an interval of about an hour.
High Court says it was not so and says so without any basis.
The prosecution did not stand to gain anything by splitting up the evening incident in two parts.
Even in the First Information Report, Ext.32 recorded at 10.30 p.m. in the night the two incidents were separately narrated.
There was absolutely no reason for the High Court to interfere with the findings of the Trial Court in that regard.
The High Court does not accept the prosecution story that deceased Gulabkhan had gone to the `Angana of Jamiyatkhan and respondent No. 1 went there as an aggressor with a stick in her hand.
This story has been discarded on the ground that it is not mentioned in the First Information Report nor in the statements of the other two witnesses before the police.
We may observe again that the prosecution did not stand to gain anything by unnecessarily or falsely introducing the story of Gulabkhan 's going to the Angana of his father in law.
The main occurrence happened in the Angana of Gulabkhan.
The places are so very near that the story of Gulabkhan going to the Angana of his father in law was not an important one to be remembered by the witnesses to be recited before the police.
It mattered little whether respondent no.1 went as an aggressor to the Angana of the deceased or a bit further North to the Angana of Jamiyatkhan.
High Court also discarded the story of the tripping of the legs of Gulabkhan because it is not mentioned in the First Information Report.
But then it ought to hive been noticed that no such contradiction was to be found in the evidence of P.Ws 4 and 6 in Court and their statements before the police.
It must, therefore.
be presumed that they had given out the tripping story before the police.
The High Court has not thought it safe to rely upon the evidence of the three eye witnesses none of whom was found to be disinterested in the prosecution.
The comment is that Allarakba Rehman and Mansabu who lived in the house opposite to the deceased have not been examined by the prosecution.
According to the prosecution, case the said Allarakha had merely quietened respondent No. 1 in the first incident and Mansabu came after the second incident was over.
In material particulars we find the evidence of the eye witnesses very convincing and natural.
In our opinion the High Court was not justified in thinking that it was not safe to rely on their evidence wholly and specially when the main part of the occurrence which fastened the guilt on respondent no.1 was not disbelieved.
Absence of any details in the statement recorded at the police station on the basis of the information given by P.W. 8 Rasulbhai unnecessarilly led the High Court to remark that no one knew upto 10.00 on as to how Gulabkhan died.
This contradicts the earlier findings of the High Court that he died as a result of the squeezing of his testicles by respondent no.1 Rasulbhai, according to his evidence did not get the details of the occurrence and so did not give any to the police.
998 The High Court has given 3 or 4 reasons for discarding the evidence of P.W.7 Gulamnabi to whom the oral dying declaration is said to have been made by the deceased.
The first reason given by the High Court is that when this witness went near Gulabkhan the three women who claimed to have witnessed the occurrence were sitting near him; none of them related the story to Gulamnabi.
he put a question to Gulabkhan who being in a position to give the answer gave it, it was not necessary for him to talk to the women thereafter.
Gulamnabi was the person who had gone to call Dr. Rao to examine Gulabkhan.
Dr. Rao came at 8.30 p.m. and declared him to be dead.
It was not necessary for Gulamnubi to relate the details of the occurrence to Dr. Rao as he himself had not witnessed it Another reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reason for the death of Gulabkhan.
Having accepted the prosecution story about the cause of his death it was unnecessary to dilate upon the matter any further.
The High Court has not disbelieved the lodging of the complaint before the police on the statement of Nannubibi at 10.00 p.m.
The last reason given is the non examination of Dr. Rao by the prosecution.
His evidence was of no use to it and the comment of the High Court is not, therefore, justified.
We have unhesitatingly come to the conclusion that the Trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents and the occurrence in question forming part of the second incident.
The High Court differed from the view of the Trial Judge on flimsy and unsustainable grounds.
Now we come to deal with the question of right of private defence.
It is no doubt true that the prosecution did not explain the injuries on the person of respondent no.1.
P.W.5 Dr. section C. Masalia who had examined the injuries on the side of the prosecution also examined ' Fatima, respondent no.1 when she was sent to him by the police.
Fatima Bibi had lodged a complaint before, the police which was; found to be a non cognizable offence at about 8.00 p.m. on 27 6 1968.
That is Ext 44.
In this complaint she stated that her young one of the goat had gone in the Angana of Gulabkhan.
Three persons named ' in the complaint were Gulabkhan, Bai bibi, mother in law of Gulabkhan and Nannubibi, his wife.
The two ladies caught hold of her Odhana and began to give her blows.
of kicks and fists Gulabkhan gave stick blows on the right hand and so she fell down on the ground and began to shout.
The injuries found on the person of Fatima Bibi were 5 in number.
Three contusions on the right forearm, one contusion on posteric parietal part of right side of scalp and one contusion on scapular part of right side of back.
The injuries were all of minor character.
In her statement under section 342 of the Code of Criminal Procedure, 1898 respondent No. 1 stated almost the same story and added that Gulabkhan was drunk while he was abusing her.
Neither in Ext.44 nor in the statement under section 342 there was a whisper by by respondent no.1 of her having squeezed the testicles and the private part of Gulabkhan.
Nothing was stated to give any inkling of her having squeezed the testicles of Gulabkhan 999 in exercise of her right of private defence to protect her from further assault.
Nor was any evidence adduced in Court to give any counter version of the occurrence.
No foundation was laid to enable the court to acquit the respondents granting them a right of private defence.
It did require a pure conjecture and imagination to hold the respondents not guilty by extending to them the right of private defence.
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow : (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
Question is in which category the present case falls ? In Munhi Ram and others vs Delhi Administration(1) Hegde, J delivering the judgment of this Court has said at page 458 "It is true that appellants in their statement under section 342 Cr.
P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence.
It is well settled that even if an accused does not plead self defence, it is open to the Court to consider such a plea if the same arises from the material on record see In Re jogali Bhaige Naiks and another A.I,R.
The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
" In the instant case not only the plea of private defence was not taken by the respondents in their statement under section 342 but no basis for that plea was laid in the cross examination of the prosecution witneses or by adducing any defence evidence.
In our opinion the burden of establishing that plea was not discharged in any manner by the respondents even applying the test of preponderance of probabilities in favour of that plea.
There is absolutely no material in the records of this case to lead to any such conclusion.
We do not think that the Trial Judge was right in assuming that respondent No. 1 must have received the injuries in the first incident.
It may well be that she received the injuries in the second incident.
Since prosecution did not come forward to show in what manner she received these (1) 1000 injuries, assumption can be made to the farthest extent in favour of the respondents that respondent no.1 received the injuries with a stick, may be at the hands of Gulabkhan or any other person on his side.
But surely the assumption could not be stretched to the extent it has been done by the High Court.
The High Court is not right in saying that by the tripping of the legs Gulabkhan would have fallen on his face and not on his back.
A man may fall on back or on face depending upon the side and the angle of the tripping.
The other error committed by the High Court is when it says :, "It appears to us to be more probable that while the quarrel was going on in the Angana of the deceased and the deceased was delivering blows of stick on the accused No. 1, she squeezedhis testicles in order to liberate herself from his attack.
It appears that she did so while the deceased was standing and giving blows on her." The deceased was wearing a pant and it is impossible to imagine that the, squeezing of the testicles could be done by respondent No. 1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standing position.
In that position he could have at once.
moved back and liberated himself.
The extent of squeezing done in this case was possible only if respondent No. 1 could sit on his legs after he bad fallen down at his back.
This lends further support to the prosecution story that respondent No. 2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent No. 1 on his legs.
In our opinion, therefore, there was absolutely no basis or material in the records of this case to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence.
Even going to the maximum in favour of the respondents that respondent no.1 got the blows with a stick at the hands of Gulabkhan and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death.
The counter ,attack could in no sense be an attack in exercise of the right of private defence.
In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased before P.W. Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No. 1.
The prosecution case is not shaken at all on that account.
1n our judgment this is a case which falls in the third category 1001 as enumerated above.
In agreement with the Trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt.
For the reasons stated above, we allow this appeal, set aside the order of the High Court and restore that of the Trial Court as against respondent No. 1 as respects her convictions and sentences and as against respondent No. 2 only in regard to her conviction.
It is no use sending the young girl back to jail for a few months.
While maintaining her conviction under section 323/114 of the Penal Code, we reduce her sentence to the period already undergone.
P. B. R. Appeal allowed.
[/INST]Section 7 of the Bonus Act provides as to how the direct tax payable by an employer is to be calculated for the purpose of computing the available surplus.
Clause (e) of section 7 enacts that no account shall be taken of any 'rebate ' or 'relief ' or deduction in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act for the development of any industry.
in the case of an industrial company, which is not a company in which public ,arc substantially interested, the Finance Act.
1966 fixed the rate of income tax at 55% on so much of the total income as did not exceed Rs. ten lakhs, on the balance, if any, of the total income 60% and 65% in the case of any other ,company.
In a dispute between its employees and the appellant, which is an industrial company the latter contended that for the purpose of computing the available surplus it was entitled to deduct direct tax at 65% and not 55% which was only a confessional levy amounting to a 'relief ' for the purpose of development.
The Tribunal accepted the contention of the appellant.
The High Court allowed the respondent 's writ petition under article 227 of the Constitution holding that the company being an industrial company could not claim deduction at a rate higher than 55% in calculating the available surplus.
On appeal it was contended that the 10% concession in the rate was given to industrial companies with a view to promote development of industry and as such must be deemed to be a 'relief ' or 'rebate ' in be payment of direct tax contemplated by section 7(e) of the Bonus Act.
Reliance for this had been placed on the speech of the Finance Minister on the budget for the year 1966 67.
Dismissing the appeal, HELD : (1) The company being an industrial company with total income not exceeding rupees ten lakhs the rate of tax under paragraph 1(A)(2)(i) of the Finance Act.
1966 applicable to it was 55% and not 65% of the total income.
[544H 545A] (2) The 'rebate or relief ' in the payment of any direct tax, in order to fall within the purview of section 7(e) of Bonus Act.
must be a rebate or relief "allowed under any law for the time being in force relating.
to direct taxes or under the relevant Finance Act.
for the development of any industry" which is one of the conditions to be satisfied.
In the present case it did not satisfy this condition.
The Finance Act, 1966 did not say that this difference of 10% in the rate of tax applicable to an industrial company and any other company is to be deemed to be a rebate or relief for the development of industry.
No, has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.
[545F H] 3 (a) It was not permissible to use the speech of the Finance Minister to construe the clear language of the statute.
[545C D] (b) As a general principle of interpretation, where the words of a statute are ,plain, precise and unambiguous the intention of the Legislature has to be gathered from the language of the statute itself and no external evidence such as Parliamentary debate , Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more 543 than one meaning or shades of meaning that external evidence as to the evils.
if any.
which the statute was intended to remedy.
or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertain ing the object which the Legislature had in view in using the words in question.
[545D F]
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<s>[INST] Summarize the judgementivil Appeal Nos.
301 303 of 1970.
From the Judgment and Order dated 17 11 1967 of the Andhra Pradesh High Court in Writ Petition Nos. 138/63, 1256/63 and 1460/63.
A.V.V. Nair for the Appellant.
K. Rajendra Chowdhary for the Respondent.
628 The Judgment of the Court was delivered by KRISHNA IYER, J.
We are in complete agreement with the reasoning and conclusions of the High Court and a brief statement of the short point that arises for decision and of the grounds for dismissing the appeal is all that is needed.
The Motor Vehicles (Taxation of Passengers and Goods) Act passed by the Madras legislature in the composite Madras State was made applicable to Andhra Pradesh when that State was carved out.
There were certain difficulties in the matter of levy of taxation on vehicles plying on inter state routes and the State of Andhra Pradesh thought it fit to enact its own legislation, which it did in the form of the Andhra Pradesh Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, Section 4(2) whereof empowered the State Government to make necessary rules to effectuate the enactment.
Pursuant to this power, certain rules were framed, of which rule 1 consisted of three sub rules.
On 19 6 1957 sub rules (4) and (5) were added to that rule and sub rule (5) ran thus: "The proviso to sub rule 1 of Rule 1 shall cease to be operative on and from 1st October, 1955 and the composition fee calculated with reference to clause (a) or clause (b) of sub rule (1) in respect of vehicle plying on inter State routes lying partly in Madras State and partly in the Andhra State shall, with effect from that date be paid in the State where the vehicles are registered and normally kept." This sub rule enabled operators of Motor Vehicles on inter state routes lying partly in the Madras State and partly in the State of Andhra Pradesh to pay the tax duly to either of these two States.
It was, however, deleted along with sub rules (3) and (4) on 29th March, 1963 with effect from 1st April, 1962 and it is the retrospectivity of the deletion that is challenged before us because the Andhra Pradesh State sought to collect tax for the period commencing 1st April, 1962 from the respondent under the Act above referred to, although he had already paid the same to the State of Madras.
The ground of invalidity was stated to be that section 4(1) did not confer on the State Government power to make rules with retrospective effect.
Thus, the only question which engages our attention is as to whether section 4(2) does confer on the delegate, namely, the State Government, the power to make retrospective rules.
The High Court, after an elaborate discussion on the jurisprudence of subordinate legislation, came to the conclusion that no such power was conferred on the State Government and that consequently the deletion which resulted in retrospective operation of the liability to payment of tax was bad in law.
629 The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations.
But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication.
In the present case the power under section 4(2) does not indicate either alternative.
The position has been considered by the High Court at length and there is no need for us to go through the exercise over again.
Indeed, considerable reliance was placed by learned counsel for the appellant on two circumstances.
He argued that the impugned rule was framed in pursuance of a dissolution passed by the legislature.
The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rules.
The second ground pressed before us by learned counsel for the appellant is that the rules had to be placed on the table of and approved by the legislature.
This was sufficient indication, in his submission, for us to infer that retrospectively in the rule making power was implicit.
We cannot agree.
The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules.
The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand vs Union of India,(1) Mr. Justice Khanna speaking for the Bench observed: "The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of the Act.
It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statutes Law that there are three kinds of laying: (i) Laying without further procedure: (ii) Laying subject to negative resolution: (iii) Laying subject to affirmative resolution.
The laying referred to in sub section (3) of Section 40 is of the second category because the above sub section contemplates that the rules would have effect unless modified or annulled by 630 the House of Parliament.
The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the courts from scrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government.
" It is, therefore, plain that the authority of the State Government under the delegation does not empower it to make retrospective rules.
With this position clarified there is no surviving submission for appellant 's counsel.
The appeal must be dismissed and we do so with costs (one set).
[/INST]Dismissing the special leave petition, the Court ^ HELD: (1) The legislature has no doubt plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the constitutional limitations.
But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication.
In the present case the power under Section 4(2) does not indicate either alternative.
Therefore the authority of the State Government under the delegation does not empower it to make retrospective rules.
[629 A B; 630 B] (2) The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules.
The whole purpose of laying on the table of the legislature the rules framed by the State Government is different.
[629E] Hukum Chand vs Union of India, ; (902), followed.
Observation: The State Government should have been more careful in giving effect to the resolution passed by the legislature and should not have relied upon its delegated powers which did not carry with it the powers to make retrospective rules.
[629C]
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 350 of 1978.
(From the Judgment and order dt. 29 5 78 of the Gujarat High Court in Spl.
Criminal Appln.
No. 20 of 1978) Ram Jethmalani and Mrs. K. Hingorani for the appellant.
section K. Mehta and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
On September 29, 1978 the detenu herein was directed to be released forthwith on his detention order being set aside and we had stated that we would give our reasons for our order later which we do presently.
217 By a detention order passed on January 4, 1978 under section 3(1) of the (hereinafter referred to as "COFEPOSA") the detenu Gopal Ghermal Mehta was detained by the Additional Chief Secretary to the Government of Gujarat (Respondent No. 1) with a view to preventing him from engaging in transporting smuggled goods.
The grounds of detention were served upon him on the same day i.e. On January 4, 1978.
Briefly stated the grounds disclosed the following material against the detenu: on receipt of certain information on December 12, 1977 by the Customs officers of Ahmedabad, the said officers had kept a watch for a Fiat Car No. GTI 6020 and the said car with five occupants was intercepted in the early hours of December 13, 1977 near Naroda Railway Crossing and the occupants (the detenu and four others) were taken to the Customs Divisional Office, Paldi, Ahmedabad for examination.
The detenu and the other four occupants of the car denied that they were carrying any smuggled gold or prohibited articles, but on search of one of the occupants Sheveram Atmaram Chandwani two cloth bags were recovered D, from him, in one of which there were 27 gold bars of foreign marking weighing 19 tolas valued at Rs. 2,16,00 and in the other there were 18 pieces of gold bearing 'Trishul ' mark valued at Rs. 1,94,400/ .
Chandwani in his statement before the Customs officers stated that the two bags which he was carrying on his person belonged to the detenu who was dealing in Silver and Gold in Udaipur and that he was merely a carrier who used to receive remuneration of Rs. 100/ per trip from the detenu.
Two statements of the detenu were recorded by the Customs officers on December 13 and 14, 197$, in which he corroborated the version of Chandwani but added that the entire quantity of foreign marked gold and the 'Trishul ' marked gold belonged to one Prem of Chandni Chowk, Delhi, for and on whose behalf he was carrying the gold from Delhi to Udaipur and from Udaipur to Ahmedabad for disposing it of to two persons, Namely, Poonamchand Laxmanji and Bhagubhai in Ahmedabad.
The detenu also stated that this had been going on for about six to eight months and that he had made five to six trips in a month and on each such trip he used to carry 2 1/2 to 3 kgs.
of gold.
He further admitted that the Fiat Car in question had been purchased for this purpose for Rs. 15,000/ which money had been provided by Prem.
He further stated that after disposal of the gold belonging to Prem at Ahmedabad he used to carry the sale proceeds to Prem and account for the same at the time of the next transaction between him and Prem.
Counsel for the petitioner (being the wife of the detenu) did not dispute that the aforesaid material disclosed in the grounds was 15 817SCI/78 218 prima facie sufficient to show the detenu 's involvement in the racket of smuggling gold, namely, transporting smuggled gold from Delhi to Udaipur and from Udaipur to Ahmedabad but he challenged the detention order on the ground that procedural safeguards had not been followed vitiating the requisite satisfaction on the part of the detaining authority under section 4(1).
It appears that when the interrogation of the detenu was going on while he was in custody of the Customs officials, Smt.
Devyantiben Shah, an Advocate of the detenu addressed a letter as also a telegram, both dated December 14, 1977, making a grievance about the wrongful restraint and illegal custody of the detenu by the Customs officers beyond 24 hours and expressing apprehension that .
the detenu had been so detained with a view to obtain confessional statements against his will.
The receipt of the letter was disputed but the Assistant Collector of Customs admitted the receipt of the telegram from the Advocate on December 15, 1977.
By his reply dated December 15, 1977 sent to the Advocate, the Assistant Collector denied the allegations made in the telegram.
Admittedly on December 14, 1977, the Advocate had gone to the Customs office and had sought permission to remain present at the time of the interrogation of the detenu but her request was not acceded to as the Customs Officers were of the view that there was no provision in law permitting an Advocate to remain present at the time of interrogation.
Further on this occasion the Advocate was told that the detenu will be produced before the Magistrate at 5.30 p.m.
On that very day and, therefore, she waited in the Magistrate 's Court upto 5.30 p.m. to obtain bail for the detenu but as the detenu was not produced the Magistrate declined to pass any order on the bail application.
On December 15, 1977 the detenu was produced before the Magistrate who remanded him to Customs custody for five days in spite of opposition by the Advocate.
On December 20, 1977 the detenu was again produced before the Magistrate and even on this occasion bail was refused but the detenu was remanded to judicial custody permitting further interrogation by Customs Officers.
On December 22, 1977 while he was in judicial custody the detenu was interrogated by Customs officers and his statement was recorded on that day but the detenu refused to sign the same and instead made an endorsement that his earlier statements dated December 13 and 14, 1977 and the facts stated therein were not correct.
In other words, in his statement dated December 22, 1977 the detenu had resiled from his earlier confessional statements and had squarely repudiated the facts stated therein.
On January 3, 1978 the Advocate of the detenu made another application for getting him released on bail as the period of remand was to expire on January 1978 and that application was fixed for hearing on January 6, 1978 but on January 4, 1978 itself while the 219 detenu was in judicial custody the Additional Chief Secretary to the Gujarat Government (Respondent No. 1) passed the impugned order under s.3(1) of the "COFEPOSA" and the detenu was detained thereunder.
The aforesaid detention was challenged by the appellant (wife of the detenu) before the Gujarat High Court under Article 226 of the Constitution by filing Special Criminal Application No. 20 of 1978 seeking a writ of habeas corpus for the release of the detenu principally on the ground that there was complete non application of mind on the part of the detaining authority (respondent No. 1) to the attendant circumstances in which the confessional statement of the detenu on which the detention order was mainly based were recorded, particularly the vital facts that transpired during the interrogation as also those that followed the recording of those statements.
It was contended that apart from the apprehension expressed in the Advocate 's telegram that the detenu was being detained with a view to obtain his confessional statements under duress, the said confessional statements had actually been retracted by the detenu at the first available opportunity when he was in judicial custody on the ground that these had been involuntarily extorted from him and that such retraction of the confessional statements was not intimated to the detaining authority and was not considered by it before passing the impugned detention order and as such for want of considering such vital fact the subjective satisfaction of the detaining authority got vitiated and the impugned order was liable to be set aside.
The High Court, however, rejected the said contention as also the other contentions urged on behalf of the appellant (the wife of the detenu) and dismissed the said application on May 29, 1978.
Against this dismissal the present appeal has been preferred.
Counsel for the petitioner contended before us that the High Court had clearly erred in taking the view that since the contents of the telegram dated December 14, 1977 expressing the apprehension had been made known to the detaining authority it could not be said that this material aspect of the case had been kept back from the detaining authority.
It was pointed out that the mere expression of an apprehension that confessional statements might be extorted was different from the actual obtaining of the statements under pressure of which a complaint had been made by the detenu in his statement recorded on December 22, 1977 wherein the earlier statements had been completely retracted and it was urged that the fact that there was such retraction of the confessional statements by the detenu at the first 220 available opportunity was not communicated or placed before the detaining authority when it considered the question of passing the impugned order.
Counsel further contended that instead of considering whether these facts were vital enough to require the application of mind by the detaining authority, the High Court went on to record findings of fact, to the effect (i) that it could not be said that the detenu was in illegal custody: (ii) that the confessional statements could not have been extracted under compulsion and (iii) that the said statements were not obtained under duress and in doing so the High Court clearly acted in excess of jurisdiction and contrary to the well established principles applicable to the issue of habeas corpus in preventive detention case.
In any case it was for the detaining authority to apply its mind to these aspects before deciding to issue the impugned order.
Counsel further contended that it was undisputed that the Advocate was not allowed to be present nor allowed to be consulted during the interrogation in spite of request having been made in that behalf which clearly showed that the detenu was under duress and not a free person.
In any event, counsel contended, the satisfaction of the detaining authority must be regarded as vitiated inasmuch as these vital facts, namely, (i) that during interrogation in spite of request neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate at 5.30 p.m.
On December 14, 1977 and (iii) that the confessional statements had been squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody all of which had a material bearing and would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority before passing the detention order on January 4, 1978 and, therefore, the impugned order was liable to be set aside.
We find considerable force in these contentions urged by counsel for the appellant before us.
It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.
In Sk.
Nizamuddin vs State of West Bengal(1) the order o`f detention was made on September 10, 197 under s.3(2) (a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with (1) ; 221 a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and his subjective satisfaction, according to the ground of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973.
In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub Divisional Magistrate Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger W their life and the petitioner was discharged.
It appeared clear on record that the history sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against tho petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case.
ID connection with this aspect this Court observed as follows: "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate.
That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention.
It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to.
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate.
" It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant.
These observations were approved by this Court in Suresh Mahato vs The District Magistrate, Burdwan and others(1).
The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal.
After all the detaining authority must exercise (1) A.I.R. 1975 S.C. 728.
222 Due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order.
In the instant case admittedly three facts were not communicated to or placed before the detaining authority before it passed the impugned order against the detenu, namely, (i) that during interrogation of the detenu, in spite of request neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate on December 14, 1977 and (iii) that the confessional statements were squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody; the first two had a bearing on the question whether the confessional statements had been extorted under duress from the detenu or not, while the third obviously was in relation to the confessional statements which formed the main foundation of the impugned order and such were vital facts having & bearing on the main issue before the detaining authority.
As regards the first this Court in Nandini Satpathy 's(1) case has observed in para 63 of the judgment thus: "Lawyer 's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence.
The Miranda decision has insisted that if an accused person asks for lawyer 's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning.
We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined.
Overreaching Article 20(3) and Section 16(2) will be obviated by this requirement.
We do not lay down that the police must secure the services of a lawyer.
That will Lead to 'police station lawyer ' system, an abuse which breeds other vices.
But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self crimination secured in secrecy and by coercing the will, was the project." (1)[978] 2 S.C.C.424.
223 In this case the request to have the presence/consultation of a lawyer was turned down owing to some misconception of the legal position but that apart, the fact that such a request was made and refused ought to have been intimated to the detaining authority.
Further, in passing the detention order the detaining authority obviously based its decision on the detenu 's confessional statement of December 13 and 14, 1977 and, therefore, it was obligatory upon the Customs officers to report the retraction of those statements by the detenu on December 22, 1977 to the detaining authority, for, it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention.
Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal.
For these reasons we set aside the impugned detention order.
P.B.R. Appeal allowed.
[/INST]An executing court cannot go behind a decree so as to vary its terms and when the obligations it imposes on the parties are reciprocal and inseverable, rendering partial execution impossible, the decree must be executed wholly as it stands or not at all.
This is particularly true of a decree for specific performance where the party who seeks execution must satisfy the executing court that he is in a position to perform the obligations which the decree imposes on him.
That in cases where the identity or substance of what the decree directs a party to give to the other is in dispute, the executing court alone has the power to decide it under section 47 of the Code of Civil Procedure and under section 42 of the Code the powers of the court executing a decree on transfer are identical with those of the court which passed the decree.
That although the remedy provided by O. XXI, r. 32(1) of the Code of Civil Procedure is available in execution of a decree for specific performance, it can be used only by a person entitled to execute the decree and if, by reason of his own incapacity to perform his part, he is precluded from seeking execution, 0.
XXI, r. 32(1), can have no application.
Consequently, in a case where, as in the present, the defendant sought to execute a decree for specific performance of a contract but was himself unable to perform one of the obligations the decree imposed on his party, namely, to transfer five annas share in a partnership firm, for the reason that the firm had ceased to exist by dissolution before the date of execution, he was not entitled to execute the decree.
Held further, that the defendant could not be allowed to substitute five annas share in the assets of the dissolved firm instead, as that would amount to an alteration of the decree which the execution court was not competent to make.
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<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) No. 8461 of 1986.
From the Judgment and Order dated 31.3.1986 of the Central Administrative Tribunal, New Delhi, in Original Appln.
No. 40 of 1986.
356 AND Writ Petition Nos.
1285, 1575/86, 352,361 & 1165 of 1989.
(Under Article 32 of the Constitution of India).
Petitioners in Person in SLP 8461 of 1986 and W.P. No. 1285 of 1986.
Shanti Bhushan, Mrs. Swaran Mahajan, Ms. Anuradha Maha jan, Mrs. Rekha Pandey, Jayant Bhushan, Badri Das Sharma, C.V. Francis, Ramesh Babu, Ms. Santosh Paul and G. Prakash, for the Petitioners in W.P. No. 1575 of 1986, 352,361 and 1165 of 1989.
Kapil Sibal, Additional Solicitor General, R.B. Datar, Mukul Mudgal, C.V. Subba Rao, B.D. Sharma, R.B. Mishra, B.K. Prasad and A.M. Khanwilkar for the Respondents.
N.P. Saxena for the Intervener.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This analogous cluster of five writ petitions and one special leave petition involves a common question of law.
The petitioner in Writ Petition No. 352 of 1989 is the President of the All India Retired Railwaymen (P.F. Terms) Association and the petition has been filed in a representative capacity on behalf of all the members of the Association who retired with Provident Fund benefits.
Writ Petition No. 361 of 1989 has been filed by three indi vidual retired Railway employees who also retired with Provident Fund benefits.
The petitioner in Writ Petition No. 1285 of 1986 retired as Block Inspector of Northern Railway on 7.1.1968, a non pensionable post.
All the petitioners except petitioner No. 5 in W.P. No. 1575 of 1986 retired from Railway service high posts.
Petitioner No. 1 retired as Additional Member, Railway Board on 5.11.1960 with Provident Fund benefits.
Petitioner No. 2 was Member, Railway Board and similarly retired on 1.3. 1968 opting for Provident Fund Scheme as at that time the maximum monthly pension was Rs.675 only.
Petitioner No. 3 similarly retired as General Manager on 5.12.1960.
Petitioner No. 4 retired as Member (Staff) Railway Board and Ex officio Secretary to the Gov ernment of India on 30.6.1977 opting for the Provident Fund Scheme.
Petitioner No. 5 also retired on 19.6.1972 opting for the Provident Fund Scheme.
Petitioner No. 6 retired on 28.8.1962 as Director 357 Health, Railway Board opting for Provident Fund Scheme.
Petitioner No. 7 similarly retired on 17.2.1968 as Director, Railway Board.
Petitioner No. 8 retired as General Manager, Indian Railways on 15.10.1966 with the Contributory Provi dent Fund Scheme.
The petitioners in Writ Petition No. 1165 of 1989are also similarly retired persons.
The petitioner in Special Leave Petition (Civil) No. 8461 of 1986 retired as Assistant Auditor, with Provident Fund benefits.
His claim to switch over to pension after retirement was rejected.
The petitioners are thus retired railway employees who were covered by or had opted for the Railway Contributory Provi dent Fund Scheme.
It is the petitioners ' case that before 1957 the only scheme for retirement benefits in the Railways was the Provident Fund Scheme wherein each employee had to contribute till retirement a portion of his annual income towards the Provident Fund and the Railways as the employer would make a matching contribution thereto.
This provident Fund Scheme was replaced in the year 1957 by the Pension Scheme whereunder the Railways would give posterior to his retirement certain monthly pension to each retired employee instead of making prior contribution to his Provident Fund.
It is stated that the employees who entered Railway service on or after 1.4.1957 were automatically covered by the Pension Scheme instead of the Provident Fund Scheme.
In so far as the employees who were already in service on 1.4.1957, they were given an option either to retain the Provident Fund benefits or to switch over to the pensionary benefits on condition that the matching Railway contribution already made to their Provident Fund accounts would revert to the Railway on exercise of the option.
It is the petitioners ' case that till 1.4.1957 or even sometime thereafter, the pensionary benefits and the alter native Contributory Provident Fund benefits were considered to be more or less equally beneficial, wherefore, employees opted for either of them.
That the benefits of the two were evenly balanced was evidenced by the Railway Board circular dated 17.9.1960 which gave an option to the employees cov ered by the Provident Fund Scheme to switch over to pension scheme and vice versa.
Mr. Shanti Bhushan, the learned counsel for the petitioners in Writ Petition Nos. 352 and 361 of 1989, submits that between 1957 and 1987 the pensionary benefits of Railway employees were enhanced on several occasions by different ways such as altering the formula for computing the pension, by including dearness allowance in the pay for computing pension, by removal of the ceiling on pension, and by intro 358 ducing or liberalising the Family Pension Scheme etc.
The Railway, it is urged, had expressed no intention of extend ing the benefits of this liberalised pension to those em ployees who had already retired.
At the time when the option was given to choose between pension and Provident Fund, the employees had no idea that in future improvements would be made to either of them.
However, it is stated, this Court in D.S. Nakara and Ors.
vs Union of India, ; held that the benefit of any liberalisation in computation of pension would also have to be extended to those employees who had already retired as they were similarly situated with those who were yet to retire.
It is submitted, that even though Nakara 's case related to Central Government employ ees, the Railways also implemented the Judgment and extended the liberalised pension benefits even to those employees who had retired long before the liberalisations concerned were introduced.
The decision to implement Nakara 's Judgment to Railway employees is admittedly contained in G.O. No. FI (3) EV/83 dated 22.10.1983.
This has, according to the learned counsel, given rise to the "strange situation" namely, that while two alternative benefits of provident fund and pension were more or less equal at the time when the petitioners were to make their choice, the pensions have thereafter been liberalised manifold to the benefit of the pension retirees, whereas no similar benefits have been extended to those who retired opting for Provident Fund, hereinafter called 'the P.F. retirees '.
It is asserted that due to successive liberalisations of pensions, the pension retirees derived manifold benefits while the P.F. retirees ' benefits remained stagnant.
It is submitted that had the petitioners, all of whom are P.F. retirees, known that pensionary benefits might subsequently be so increased, they would no doubt have opted for pension instead of Provident FUnd, The following twelve notifications given such options are referred to: Date of Notification Cut off date chosen 1.
17.09.60 01.07.59 2.
26.10.62 01.09.62 3.
03.03.66 31.12.65 4.
13.09.68 01.05.68 5.
23.07.74 01. 01.73 359 6.
23.08.79 31.03.79 7 01.09.80 23.02.80 8.
04.10.82 31.08.82 9.
09.11.82 31.01.82 10. 13.05.8 31.01.82 11.
18.06.85 31.03.85 12.
08.05.87 01.01.86 It may be noted that in case of each option the cut off date was anterior to the respective dates of.announcement, and as a result, employees who retired after the cut off date (specified date) and before the notification date were also made eligible for exercising the option despite the fact that they already retired in the meantime.
From the above, the 'main legal point ' that arises, submits Mr. Shanti Bhushan, is that the Railways issued the above noti fication giving option to certain P.F. retirees after the respective cut off dates to opt for the Pension Scheme even after their retirement, but the same options were not given to other similarly situated P.F. retirees beyond the respec tive cut off dates.
This, it is submitted, is clearly dis criminatory and violative of article 14 of the Constitution and deserves to be struck down.
It is contended by the petitioners that each of the above notifications including the last one, dated 8.5.
1987 had given a fresh option to some of the P.F. retirees while denying that option to other P.F. retirees who were identi cally placed but were separated from the rest by the arbi trary cut off date.
Each of the notifications specified a date and provided that the P.F. retirees who retired on or after that date would have fresh option of switching over to the pensionary benefits even though they had already re tired, and also had already drawn the entire Provident Fund benefits due to them.
It is also contended that the speci fied dates in these notifications having formed the basis of the discrimination between similarly placed P.F. retirees those were arbitrary and un related to the objects sought to be achieved by giving of the option and were clearly viola tive of article 14 and also of the principle laid down in Nakara 's case, which according to counsel, is that pension retirees could not be divided by such arbitrary cut off 360 dates for the purpose of giving benefitS ' to some and not to other similarly situated employees; and that by analogy the rule is equally applicable to the Provident Fund retirees as a class.
Mr. Kapil Sibal, the learned Additional Solicitor Gener al refuting the argument submits that each of the options was meant to give the P.F. retirees after the specified dates option to switch over to Pension Scheme and that each specified date had nexus with the reason for granting the particular option.
He relies on the following statements to substantiate his submission.
STATEMENT SHOWING PENSION OPTIONS GIVEN TO RAILWAY EMPLOYEES S1.
No. Option Granted Option Reasons for Rly.
Board 's validity granting letter No. period option date 1 2 3 4 5 1.
I Option F(E) 50/RTI/6 1.4.57 to 31.3.58 Intro dated 16.11.57 (For those duction in service on system 1.4.1957 on Rai lways Extensions F(P) 58.PN 1/6 Extended upto dated 7.3.58 30.6.56 F(P)58.PN 1/6 Extended upto dated 19.6.58 31.12.58 F(P)58.PN 1/6 Extended upto dated 24.12.58 31.3.59 F(P)58.PN 1/6 Extended upto dated 28.3.59 30.9.59 2.
II Option PC 60/RB/2/2 1.7.59 to 15.12.60 Revi dated 17.9.60 (For those in sion service on of Pay Struc ture (2 nd Pay Commiss ion re commenda tion) 361 Extensions PC 60/RB 2/2 Extended upto dated 7.4.61 30.6.61 PC/60/RB 2/2 Extended upto dated 2.11.61 31.12.61 3.
III Option F(P)62.PN 1/2 1.9.62 to 31.3.63 Consequ dated 26.10.62 (For those in ent upon service on 1.9.62 decision to count officiati ng pay for pensionary benefits.
IV Option F(P)63.PN/1/ 1.1.64 to 16.7.66 Introduc 40 dated 17.1.64 tion of family pension scheme.
V Option F(P)65.PN1/41 31.12.65 to In pursuance dated 3.3.66 30.6.66 of decision (for those to liberalise in service on the family 31.12.65 pension Scheme by Extending it to employ ess who die wh ile in service.
VI Option F(E) III.68.PN 1.5.68 to 31.12.68 In pursu 1/2 dated 13.9.88 (for those in ance of service on decision 1.5.68 to change the defi nition of "pay" w.e.
f.1.5.68 for the purpose of pensionary benifits.
362 Extensions F(E)III.68PN Extended upto 1/2 dated 31.1.69 31.3.69 7.
VII Option F(E)III.71.PN 15.7.72 to As a result of 1/3 dated 15.7.72 21.10.72 demandes from (for those orgnised in service labour.
on 15.7.72 8.
VIII Option PC III.73.PN/3 1.1.73 to 22.1.75 Consequet dated 23.7.74 (for those to acceptance in service III Pay Commis on 1.1.73) sions ' Recommen dations.
Extensions PC III.73.PN/3 Extended upto Extended becau dated 18.1.75 & 30.6.76 & se by schedule for 25.6.75 31.12.75 vsrious categories PC III, 73.PN/3 Extended upto were being Pt I 30.6.76 Finalised.
dated 16.12.75 PC III.73 PN/3 Extended upto Pt.
I 31.12.76 dated 30.6.76 PC III 73 PN/3 Extended upto Pt.
I 30.6.76 dated 3.1.77 PC III 73 PN/3 Extended upto Pt.
I 31.12.77 dated 12.7.77 PC III 73 PN/3 Extended upto Pt.
I 30.6.78 dated 17.4.78 PC III 73 PN/3 Option Exercised Pt.
I upto 31.12.78 be dated 20.5.78 considered as valid PC III.78 PN/3 (staff who were in Pt.
I service as on 1.1.73 & dated 27.12.78 retired/died/quited service during the period from 1.1.73 to 31.12.78) 363 9.
IX Option F(E) III.
to On account 1/4 22.2.80 of liberalisa dated 23.8.79 (For those in tion of pen service on sion formula 1.4.79) and introduc tion of slab system.
Extensions F(E) III.
PN Extended upto 1/4 dated 1.9.80 22.2.81 10.
X Option F(E) III 82.
31.8.82 to 28.2.830n account PN 1/7 (For those in of part of DA dated 4.10.82 service on treated as 31.8.82) pay.
Extension F(E)III 82.
PN Extended upto 1/7 dated 13.5.83 31.8.83 % made applicable from 31.1.82 under letter No. F(E) III dated 9.11.82 11.
XI Option F(E) III 85.
31.3.85 to Consequent PN 1/5 17.12.85 upon DA/ dated 18.6.85 (For those inADA upto service on average price 31.3.85 ) index at point 568 treated as pay for retire ment benefits.
XII Option PC IV/87/13/ 1.1.86 to 30.9.87 All CPFbene 881 ficiaries who dated 8.5.87 (for those in were in service service on on 1.1.86 and 1.1.86) who are still in service will be deemed to 364 have come over to pen sion Scheme unless they specifically opt out pension scheme and desire to retain the CPF scheme.
INTRODUCTION OF PENSION SCHEME OF RAILWAYS AND SUBSEQUENT PENSION OPTION (i) Introduction of Pension Scheme Pension Scheme was introduced on the Railways on 16.11.57 and was applicable to the following: (a) To all Railway servants who enter service on and after 16.11.57 and (b) To all non pensionable Railway servants who were in service on 1.4.57 or join Railway Service between 1.4.57 and 16.11.57 and opt for the Pension Scheme.
The scheme was made applicable from 1.4.57 because the financial year commences from April each year.
This option was extended 4 times from time to time and was valid upto 28.3.59.
The extensions were given because there were repre sentations for its extension so that the staff could get time to weigh the merits of the Schemes before they take decision.
(ii) Pension option dated 17.9.
1960 Orders were issued on 2.8.1960 notifying Railway Serv ices (Authorised Pay) Rules, 1960.
Under this notification new pay scales were introduced for Railway Servants.
These new pay scales were effective from 1st July, 1959.
Fresh option was granted on 17.9.60 to Railway employees who were in service on 1.7.59 to come over to the pension scheme.
The last 365 date for exercising the option was 15.12.60.
This was ex tended upto 31.12.60 to enable the concerned employees to come to a considered decision whether to retain the P.F. or opt for the pension scheme.
(iii) Pension Option dated 26.10.62 A decision was taken on 26.10.62 to count the officiat ing pay for the purpose of retirement benefits in case of those who were in service on 1.9.62.
Accordingly, a fresh option was given to staff to come over to pension scheme on 26.10.62.
This option remained open till 31.3.63.
(iv) Pension Option dated 17.
1964 As a result of introduction of Family Pension Scheme 1964, which came into force on 1.1.1964 orders were issued on 17.1.64 to the effect that all Railway employees who were in service could opt for pension scheme within a period of 6 months.
This option was extended upto 16.9.64.
(v) Pension Option dated 3.3.66 Family Pension Scheme was further liberalised for em ployees who die while in service.
In view of this improve ment in Pension Scheme, pension option under Railway Board 's orders dated 3.3.66 was given to employees who were in service on 31.12.65.
Since the liberalisation in Family Pension Scheme came into effect from 1st January, 1966, the option was open for employees who were in service on 31.12.65 and was open upto 30.6.1966.
(vi) Pension Option dated 13.9.68 The definition of 'Pay ' for pensionary benefits was changed from 1.5.68, through Board 's orders dated 13.9.68.
In view of this, a further option was given on 13.9.68 to Railway employees who were in service on and after 1.5.68 to opt for the Pension Scheme.
This option was open upto 31.12.68.
This was further extended upto 31.3.69.
(vii) Pension Option dt. 15.7.
72 On representation from the recognised labour federations that many employees had not clearly understood the liberali sation introduced in the pension scheme, a fresh option was allowed on 15.7.72 to all serving employees.
This was open till 21.10.72.
366 (viii) Pension Option dated 23.7.
74 This option was based on similar orders issued by Minis try of Finance.
The rationale behind this option was that the recommendations of the 3rd Pay Commission became effec tive from 1.1.73 but pay structure of all employees who were in service on 1.1.73 got altered through orders issued piecemeal from time to time.
There were liberalisations in the pension scheme also in the form of increase in the amount of gratuity as also introduction of the concept of Dearness Relief made available to the pensioners.
This option was made available to all employees who were in service on 1.1.73.
Employees who had retired earlier did not get affected in any way by the recommendations of the 3rd Pay Commission and were accordingly not given this option to come over to Pension Scheme.
This option was available upto 22.1.75, a period of 6 months.
The option given vide letter of 23.7.74 was extended from time to time till 31.12.78.
The reason why this exten sion had to be allowed was that the revised pay scales recommended by the Pay Commission for many of the categories could not be finalised and notified.
Till such time, the revised pay scale admissible to each category was made known, it was impossible for the concerned staff to assess the benefit admissible for opting for the revised scale as also for the pension option.
The pension option had there fore to be extended from time to time in this manner.
The letters authorising extension of the date of option were not very clearly worded with the result that the pen sion option during the periods of extension was granted, even to those who had retired before such extension became admissible but who were in service on 1.1.73.
The clarifica tion was accordingly issued to all the Railways stating that the subsequent orders extending the date of option were applicable to serving employees only, but the cases already decided otherwise may be treated as closed and need not be opened again.
It was subsequently represented by the organised labour that the options actually exercised upto 31.12.78 should be treated valid even though such cases may not have been decided by that date.
This was agreed to and orders issued accordingly.
(ix) Pension Option dated 23.8.
79 A liberalised formula and slab system for calculation of pension 367 effective from 31.3.79 was notified by Railway Board on 1.6.79.
Accordingly, orders were issued on 23.8.79 allowing pension option to those Railway employees who were in serv ice on 31.3.79.
This option was initially open till 22.2.80 but was extended subsequently to enable wider participation upto 22.2.1981.
(x) Pension Option dated 4.
10.82 Orders were issued by Board on 30.4.82 ordering that a portion of Dearness Allowance will be treated as pay for retirement benefits w.e.f. 31.1.82.
Accordingly a fresh option was allowed on 4.10.82 which could be exercised by Railway employees who were in service on 31.1.82.
This option was available upto 31.8.83.
(xi) Pension Option dated 18.6.85 Orders were issued by Railway Board on 17.5.85 merging Dearness Allowance to the price index upto 568 with pay for the purpose of retirement benefits and raising the ceiling of DCRG from 36,000 to 50,000 w.e.f. 31.3.85.
Accordingly, another option was granted to the Railway employees who were in service on 31.3.85.
This option was available for a period of 6 months i.e. upto 17.12.1985.
(xii) Pension Option dated 8.5.87 Consequent upon acceptance of the recommendations of the 4th Pay Commission the revised pay scales were notified on 19.9.86 and 14.3.87, effective from 1.1.1986.
Accordingly another pension option was given to the Railway employees who were in service on 1.1.86 vide orders of 8.5.87.
Under these orders those who did not specifically opt out of pension scheme by 17.12.87 would he automatically deemed to have opted for the pension scheme.
We may now examine these options.
The Railway Board 's letter No. F(E) 50 RTI/6 dated November 16, 1967 introduced the pension scheme for railway servants.
It said that the President had been pleased to decide that the pension rules, as liberalised vide Railway Board 's Memo No. E 48 OPC 208 dated 8.7.1950 as amended or clarified from time to time should apply "(a) to all railway servants who entered serv ice on or after issue of that letter and (b) to all non pensionable railway servants who were in service on 1.4.57 or have joined railway service between that date and the date of issue of the order." The Railway servants referred to in para (b) were required 368 to exercise an unconditional and unambiguous option on the prescribed form on or before 31.3.1958 electing for the pensionary benefits or retaining their existing retirement benefits under the State Railway Provident Fund Rules.
It further said that any such employee from whom an option form prescribed for the employee 's option was not received within the above time limit or whose option was incomplete or conditional or ambiguous shall be deemed to have opted for the pensionary benefits and if any such employee had died by that date or on or after 1.4.57 without exercising option for the pensionary scheme, his dues would be paid on the provident fund system.
The period of validity of this option was first extended upto 30.6.58, 31.12.58, 31.3.59 and lastly upto 30.9.59.
There could, therefore, be no doubt that those who did not opt for the pension scheme had ample opportunity to choose between the two.
The second option was given by the Board 's letter No. PC 60/ RB/2/2 dated 17.9.60 to elect the retirement benefits under the Provident Fund Rules or the Pension Rules.
All Railway servants who were in non pensionable service on 15.11.57 prior to the introduction of the pension scheme on the Railways and who were still in service including (IPR) on 1.7.59 were granted this option to have their retirement benefits regulated by the State Railway Provident Fund Rules or the Railway Pension Rules.
Every eligible railway servant was given the option to change over from P.F. benefits to pensionary benefits or vice versa.
It clearly said that Railway servants who did not exercise the option would continue to be eligible for the P.F. benefits or pensionary benefits as the case might be for which he was already eligible.
The option was subject to the special conditions stated therein.
Where the Railway servants opted for pensionary benefits, the part of the Government contribution together with interest thereon and/or special contribution to the Railway servants ' P.F. account had already been paid, the excess of the amount over the gratuity due under the Pension Rules should be refunded to the Government.
It clearly said that: "the option once exercised shall, however, be final and irrevocable irrespective of the decision taken on that issue.
" If a Railway servant opted for P.F. benefits and if the payment of pensionary benefits had already commenced, further payment would be stopped and his P.F. account would be reconstructed as if he had never opted for pensionary benefits.
The period of validity of option was extended upto 30.6.61, and then upto 31.12.61.
This letter clearly indi cated the reason for giving this option as "under the re vised pay structure introduced from 1.7.59, the bulk or whole of the D.A. previously payable 369 have been absorbed into pay and a number of changes are also being made in the rules regarding retirement benefits.
" In pursuance of the 3rd Pay Commission Report, Govern ment decided to give opportunity to opt for liberalised Railway Pension Rules including benefits of Family Pension Scheme, 1964, to Railway employees, who had retained the contributory P.F. Rules and who were in service on 31.3.1979 and retired on or after that date provided they gave in writing their option within six months.
Employees who had retired under the said State Railway P.F. (Contributory) Rules, their option would be valid if they refunded the entire Government contribution and the excess, if any, of special contribution to P.F. received by them over D.C.R.G. due to them under Pension Rules.
In case of deceased employ ees request could be made for option by valid nominee and in the absence.
of him by legal guardian.
Thereafter a number of representations were made and the Government extended the time for giving option for adopting Pension Scheme in place of contributory P.F. Scheme.
As a result of treatment of a portion of ADA as pay for purpose of retirement benefits and consequently enhancement in pensionary benefits, the date for giving option was further extended by 28.2.1983 only for these employees who were in service on 31.8.1982 and who quitted/retired on or after that date.
The date of option was further extended from time to time.
Keeping in view the treatment of entire DA upto the price index line of 568 as pay for retirement benefit with effect from 31.3.85, removal of ceiling limit of Rs. 1500 on pension and raising of ceiling of DCRG from Rs.36,000 to Rs.50,000 the date of option for employees who were in service on 31.3.85 and onwards and still governed by S.R.P.F. (Contributory) Rules, was further extended upto 17.12.1985 provided the amount of death cum retirement gratuity and the excess, if any, of special contribution over the D .C.R.G., was refunded.
The 12th option was as under.
"Government of India/Bharat Sarkar Ministry of Railways/Rail Mantralaya (Railway Board) Machine No. PC IV/87/13/881 No. PC IV/87/Imp.
PW 1 370 The General Managers, RBBIS.
No. 116/87 All Indian Railways, New Delhi, dated 8th May, 1987 Production Units etc.
as per mailing list.
Subject: Change over of Railway employees from the SRPF (Contributory Scheme) to Pension Scheme 'Implementation of the recommendation of the IV Central Pay Commission regard ing.
The Railway employees who are covered by the SRPF (Contributory Scheme) CPF Scheme have been given repeated options in the past to come over the Pension Scheme.
Howev er, some Railway employees still continue under the CPF Scheme.
The Fourth Central Pay Commission has now recommend ed that all CPF beneficiaries in service on January 1, 1986, should be deemed to have come over to the Pension Scheme on that date, unless they specifically opt out to continue under the GPF Scheme.
After careful consideration the President is pleased to decide that the said recommendation shall be accepted and implemented in the manner hereinafter indicated.
All CPF beneficiaries, who were in service on 1.1.86 and who are still in service on the date of issue of these orders, will be deemed to have come over to the Pension Scheme. ? 3.2.
The employees of the category mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire.
The option will have to be exercised and conveyed to the concerned Head of Office by 30.9.87, in the form enclosed, if the employees wish to continue under the GPF Scheme.
1f no option is received by the Head of Office by the above date the employees will be deemed to have come over to the Pension Scheme.
The CPF beneficiaries, ,who were in service on 1.1.1986, but have since retired and in whose cases retire ment benefits have also been paid under the CPF Scheme, will have an option to 'have their retirement benefits calculated under the Pension Scheme provided they refund 371 to the Government the Government contribution to the Con tributory Provident Fund and the interest thereon, drawn by them at the time of settlement of the CPF Account.
Such option shall be exercised latest by 30.9.
CPF beneficiaries, who were in service on 1.1.1986 but were since retired, and in whose cases the CPF Account has not already been paid, will be allowed retirement benefits as if they were borne on pensionable establishments, unless they specifically opt, by 30.9.87, to have their retirement benefits settled under the CPF Scheme.
Cases of CPF beneficiaries, who were in service on 1.1.86, but have since died, either before retirement or after retirement, will be settled in accordance with para 3.3.
or 3.4 above, as the case may be.
Options in such cases will be exercised, latest by 30.9.87, by the widow/widower and, in the absence of widow/widower, by the eldest surviv ing member of the family, who would have otherwise been eligible to family pension under the Family Pension Scheme, if such Scheme were applicable.
The option, once exercised, shall be final.
3.7. . . . . 4.1. . . . . . 4 . 2 In the case of employees referred to above who come over or are deemed to have come over to the Pension Scheme, the Government 's contribution to the CPF together with the interest thereon, credited to the CPF Account of the employee, will be resumed by the Government.
Special contribution to Provident Fund if already paid in these cases, will be adjusted against the death/ retirement Gratuity, payable under these orders.
The employee 's contri bution, together with the interest thereon at his credit in the CPF account, will be transferred to the CRPF (Non Con tributory) Account, to be allotted to him, on his coming over to the Pension Scheme.
4.3. . . . . . . . 5 'A proposal to grant ex gratia payment to the benefici aries, who retired prior to 1.1.1986 and to the 372 families of CPF beneficiaries who died prior to 1.1.1986, on the basis of the recommendations of the Fourth Central Pay Commission, is separately under consideration of the Govern ment.
The said ex gratia payment, if and when sanctioned, will not be admissible to the employees or their families who opt to continue under the CPF Scheme from 1.1.1986 onward.
6. . . . . (G. Chatterjee) Executive Director, Pay Commission Railway Board.
" The learned Additional Solicitor General stated that each option was given for stated reasons related to the options.
On each occasion time was given not only to the persons in service on the date of the Railway Board 's letter but also to persons who were in service till the stated anterior date but had retired in the meantime.
The period of validity of option was extended in all the options except Nos.
3rd, 4th, 5th and 7th.
We find the statements to have been substantiated by facts.
The cut off dates were not arbitrarily chosen but had nexus with the purpose for which the option was given.
Mr. Shanti Bhushan however submits that applying the law laid down in Nakara 's case this Court should simply strike down or read down paragraph 8.1 of the above 12th option dated 8.5.
That paragraph said that aH C.P.F. benefi ciaries who were in service on 1.1.86 and who were still in service on the date of issue of the order would be deemed to have come over to the pension scheme.
It is submitted that once this limiting requirement is removed all the C.P.F. beneficiaries shall be eligible and will be deemed to have come over to the pension scheme.
As the basis or justification for striking or reading down paragraph 3.1 on Nakara 's ratio, it is urged that all the Railway employees numbering about 22 lakhs comprising 16,22,000 in service and about 6 lakhs pensioners constitute one family and must be treated as one class as the Govern ment 's obligation to look after the retired Railway employ ees both under the pension scheme and the provident fund scheme being the same, they could not be treated different ly.
Any differential treatment will be discriminatory and violative of Article 14 of the Constitution of India.
In Nalcara 's case the date arbitrarily 373 chosen was struck down and as a result the revised formula for computing pension was made applicable to all the retired pensioners.
The same principle, it is urged, has to be extended to the provident fund retires also otherwise there would be discrimination.
It is stated that though at the time of choosing between provident fund and pension scheme both the alternative appeared to be more or less equal and the retired provident funders took their lump sum yet subse quently stage by stage the pensioners benefits were in creased in such ways and to such extent that it became more and more discriminatory against the provident funders old and new.
It was because of this discrimination that aucces sive options were given by the Railway Board for the provi dent funders to become pensioners.
Hence the submission that this limitation must go, and all the provident funders must be deemed to have become pensioners subject to the condition that the Government contribution received by them along with interest thereon is refunded or adjusted.
Obviously this gives no importance to the condition in the notifications that option once exercised shall be final and binding and to the fact that in each option a cut off date was there relat ed to the purpose of giving that option: Admittedly, the entire case of the petitioners is sought to be based on the decision in Nakara 's case.
Mr. Kapil Sibal submits that the petitioners ' basic assumption is erroneous inasmuch as Nakara 's case did not hold that when ever there was a liberalisation of pension all other pension retirees and P.F. retirees must be given option and that the older system of pension or Provident Fund was always insuf ficient.
According to counsel the only question decided in Nakara can be gathered from the following paragraph of the report at page 172: "Do pensioners entitled to receive superannuation or retir ing pension under Central Civil Services (Pension) Rules, 1972 ( ' 1972 Rules ' for short) form a class as a whole? Is the date of retirement a relevant consideration for eligi bility when a revised formula for computation of pension is ushered in and made effective from a specified date? Would differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pen sion attract Article 14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violative of article 14?" The basic question of law that has to be decided, therefore, is what was the ratio decidendi in Nakara 's case and how far that would 374 be applicable to the case of the P.F. retirees.
The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it.
It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required.
" This was what Lord Selborne said in Caledonian Railway Co. vs Walker 's Trustees and Lord Halsbury in Quinn vs Leathem, , (502).
Sir Frederick Pollock has also said: "Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision." In other words, the enunciation of the reason or princi ple upon which a question before a court has been decided is along binding as a precedent.
The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particu lar case which gives rise to the decision.
The ratio deci dendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre existing rule of law, either statutory or judge made, and a minor premise consisting of the material facts of the case under immediate considera tion.
If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it.
In the words of Halsbury, 4th Edn., Vol. 26, para 573: "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the sub ject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribu nal 's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case.
If more rea sons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.
" The question then is, has the court said in Nakara that what was applicable to pensioners vis a vis liberalisation of pension was to be equally applicable to P.F. retirees? In Nakara 's case petitioners 1 and 375 2 were retired pensioners of the Central Government, the first being a civil servant and the second being a member of the service personnel of the Armed Forces.
The third peti tioner was a society registered under the Societies Regis tration Act, 1860, formed to ventilate the legitimate public problems and was espousing the cause of the pensioners all over the country.
The first petitioner retired in 1972 and on computation, his pension worked out at Rs.675 per month and with dearness allowance he was drawing monthly pension of Rs.935.
The second petitioner retired at or about that time and at the relevant time was in receipt of a pension plus dearness relief of Rs .981.
The Union of India had been revising and liberalising the pension rules from time to time.
The Central Government servants on retirement from service were entitled to receive pension under the Central Civil Services (Pension) Rules, 1972.
Successive Central Pay Commissions recommended en hancement of pension in different ways.
The first Central Pay Commission (1946 47) recommended raising of the retire ment age to 58 years and the scale of pension to 1/80 of the emoluments of each year of service subject to a limit 35/80 with a ceiling of Rs.8,000 per year for 35 years of service.
The Second Central Pay Commission (1957 58) did not recom mend any increase in the non contributory retirement bene fits.
The Administrative Reforms Commissioner (ARC) 1956 took note of the fact that the cost of living had shot up and correspondingly the possibility of savings had gone down and accordingly recommended that the quantum of pension may be raised to 3/6 of the emoluments of the last three years of service from existing 3/8 and the ceiling to be raised from Rs.675 per month to Rs. 1,000 per month.
Before the Government acted upon it, the Third Central Pay Commission did not examine the question of relief to pensioners because of its terms and recommended no change in the pension formu la except that the existing ceiling to be raised from Rs.675 to Rs. 1,000 per month and the maximum gratuity should be raised from Rs.24,000 to Rs.30,000.
On May 25, 1979, Government of India, Ministry of Finance, issued Office Memorandum No. F 19(3) EV 79 whereby the formula for computation of pension was liberalised but made it applicable.
to Government servants who were in service on March 31, 1979 and retired from service on or after that date.
The formula introduced a slab system for computation of pension which was applicable to employees governed by the 1972 rules retiring on or after the speci fied date.
The pension for the service personnel which would include Army, Navy and Air Force staff was governed by the relevant regulations.
By 376 the Memorandum of the Ministry of Defence bearing No. B/40725/ AG/PS4 C/1816/AD (Pension)/Services dated September 28, 1979, the liberalised pension formula introduced for the government servants governed by the 1972 rules was extended to the armed forces personnel subject to the limitations set out in the memorandum with a condition that the new rules of pension would be effective from April 1, 1979 and may be applicable to all service officers who become/ became non effective on or after that date.
This liberalised 'pension formula was to be applicable prospectively to those who retired on or after March 31, 1979 in case of government servants governed by 1972 rules and in respect of defence personnel those who became/become non effective on or after April 1, 1979.
Consequently those who retired prior to the specified date would not be entitled to the benefits of the liberalised pension formula.
On the above facts the petitioners ' therein contended that this Court would consider the raison d 'etre for payment of pension, namely, whether it was paid for past satisfacto ry service rendered, and to avoid destitution in old age as well as a social welfare or socioeconomic justice measure, the differential treatment for those who retired prior to a certain date and those retiring subsequently, the choice of the date being wholly arbitrary would amount to discrimina tion and violative of article 14; and whether the classifica tion based on fortuitous circumstance of retirement before or subsequent to a date, fixing of which was not shown to be related to any rational principle, would be equally viola tive of article 14.
It was contended that pensioners of the Central Government formed a class for the purpose of pen sionary benefits and there could not be mini classification within the class designated as pensioners.
The Court considered the nature and purposes of pension in the context of a welfare State and found that though unquestionably pension was linked to length of service and the last pay drawn which did not imply the pay on the last day of retirement but average emoluments of 36 months serv ice which under the liberalised scheme was reduced to aver age emoluments of 10 months preceding the date which was expected to be higher than that of the higher average emolu ments of 36 months, coupled with the slab system for compu tation amounted to liberalisation of pension in different ways.
If the pensioners who retired prior to the specified date had to earn pension on the average emoluments of 36 months ' salary just preceding the date of retirement, natu rally the average would be lower and they would be doubly hit because the slab system newly introduced was not avail able to them 377 while the ceiling was at a lower level and thus they would suffer "triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling.
" This Court, therefore, wanted to know what was the purpose in prescrib ing the specified date vertically dividing the pensioners between those who retired prior to the specified date and those who retired subsequent to that date and why was the pension scheme liberalised.
Receiving no satisfactory reply the Court observed: "Both the impugned memoranda do not spell out the raison d 'etre for liberalising the pension formula.
In the affida vit in opposition by Shri S.N. Mathut, it has been stated that the liberalisation of pension of retiring Government servants was decided by the Government in view of the per sistent demand of the Central Government employees repre sented in the scheme of Joint Consultative Machinery.
This would clearly imply that the pre liberalised pension scheme did not provide adequate protection in old age and that a further liberalisation was necessary as a measure of econom ic security.
When Government favorably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be uti lised for providing higher security to erstwhile government servants who would retire.
The Government also took note of the fact that Continuous upward movement of the cost of living index as a sequel of inflationary inputs and dimin ishing purchasing power of rupee necessitated upward revi sion of pension.
If this be the underlying intendment of liberalisation of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee?" The Court then proceeded to examine whether there was any rationale behind the eligibility qualification and finding no rationale concluded: "Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory." 378 The Court accordingly concluded that the division was thus arbitrary and unprincipled and therefore the classifi cation did not stand the test of article 14.
It was also arbi trary as the Court did not find a single acceptable or persuasive reason for this division and this arbitrary action violated the guarantee of article 14.
The Court observed that the pension scheme including the liberalised scheme to the Government employees was non contributory in ' character.
The payment of pension was a statutory liability undertaken by the Government and whatever became due and payable was 2budgeted for.
The Court specifically observed: "One could have appreciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed.
That being not the case, there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share.
Therefore, there is no question of dividing the pension fund.
Pension is a liability incurred and has to be provided for in the budget.
" The Court further observed: "If from the impugned memoranda the event of being in serv ice and retiring subsequent to specified date is served, all pensioners would be governed by the liberalised pension scheme.
The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specified date.
It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable." The Court in Nakara was not satisfied with the explana tion that the legislation had defined the class with clarity and precision and it would not be the function of this Court to enlarge the class.
The Court held in paragraph 65 of the report: "With the expanding horizons of socio economic justice, the Socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that 379 the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion: 'being in service and retiring subsequent to the specified date ' for being eligi ble for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of 'being in service on the specified date and retiring subsequent to that date ' in impugned memoranda, Exs.
P 1 and P 2, violates Article 14 and is unconstitutional and is struck down.
Both the memoranda shall be enforced and implemented as read down as under: In other words, exhibit P 1, the words: 'that in respect of the government servants who were in service on March 31, 1979 and retiring from service on or after that date '; and in exhibit P 2, the words: 'the new rates of pension are effective from April 1, 1979 and will be applicable to all service officers who became/become non effective on or after that date '; are unconstitutional and are struck down with this specifi cation that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespec tive of the date of retirement.
Omitting the unconstitution al part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retire ment.
Arrears of pension prior to the specified date as per fresh computation is not admissible.
" Thus the Court treated the pension retirees only as a homogeneous class.
The P.F. retirees were not in mind.
The Court also clearly observed that while so reading down it was not dealing with any fund 380 and there was no question of the same cake being divided amongst larger number of the pensioners than would have been under the notification with respect to the specified date.
All the pensioners governed by the 1972 Rules were treated as a class because payment of pension was a continuing obligation on the part of the State till the death of each of the pensioners and, unlike the case of Contributory Provident Fund, there was no question of a fund in libera lising pension.
The argument of Mr. Shanti Bhushan is that the State 's obligation towards pension retirees is the same as that towards P.F. retirees.
That may be morally so.
But that was not the ratio decidendi of Nakara.
Legislation has not said so.
To say so legally would amount to legislation by enlarg ing the circumference of the obligation and converting a moral obligation into a legal obligation.
It reminds us of the distinction between law and morality and limits which separate morals from legislation.
Bentham in his Theory of Legislation, Chapter XII, page 60 said: "Morality in general is the art of directing the actions of men in such a way as to produce the greatest possible sum of good.
Legislation ought to have precisely the same object.
But although these two arts, or rather sciences, have the same end, they differ greatly in extent.
All actions, wheth er public or private, fall under the jurisdiction of morals.
It is a guide which leads the individual, as it were, by the hand through all the details of his life, all his relations with his fellows.
Legislation cannot do this; and, if it could, it ought not to exercise a continual interference and dictation over the conduct of men.
Morality commands each individual to do all that is advantageous to the community, his own personal advantage included.
But there are many acts useful to the community which legislation ought not to command.
There are also many injurious actions which it ought not to forbid, although morality does so.
In a word legislation has the same centre with morals, but it has not the same circumference.
" In Nakara it was never held that both the pension reti rees and the P.F. retirees formed a homogeneous class and that any further classification among them would be viola tive of article 14.
On the other hand the Court clearly ob served that it was not dealing with the problem of a "fund".
The Railway Contributory Provident Fund is by 381 definition a fund.
Besides, the Government 's obligation towards an employee under C.P.F. Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues.
Whether there still remained a moral obligation is a different matter.
On the other hand under the Pension Scheme the Government 's obligation does not begin until the employee retires when only it begins and it continues till the death of the em ployee.
Thus, on the retirement of an employee Government 's legal obligation under the Provident Fund account ends while under the Pension Scheme it begins.
The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension.
It would not, therefore, be reasonable to argue that what is applicable to the pen sion retirees must also equally be applicable to P.F. reti rees.
This being the legal position the rights of each individual P.F. retiree finally crystallized on his retire ment whereafter no continuing obligation remained while on the other hand, as regards Pension retirees, the obligation continued till their death.
The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the P.F. retirees they would not be so adversely affected ipso facto.
It cannot, there fore, be said that it was the ratio decidendi in Nakara that the State 's obligation towards its P.F. retirees must be the same as that towards the pension retirees An imaginary definition of obligation to include all the Government retirees in a class was 'not decided and could not form the basis for any classification for the purpose of this case.
Nakara cannot, therefore, be an authority for this case.
Stare decisis et non guieta movere.
To adhere to prece dent and not to unsettle things which are settled.
But it applies to litigated facts and necessarily decided ques tions.
Apart from article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point.
When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same.
A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determina tion, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subse quent cases where the very point is again in controversy unless there are occasions when departure is rendered neces sary to vindicate plain, obvious principles of law and remedy continued injustice.
It should be invariably applied 382 and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it.
But in Nakara it was never required to be decided that all the retirees formed a class and no further classification was permissible.
The next argument of the petitioners is that the option given to the P.F. employees to switch over to the pension scheme with effect from a specified cut off date is bad as violative of article 14 of the Constitution for the same rea sons for which in Nakara the notification were read down.
We have extracted the 12th option letter.
This argument is fallacious in view of the fact that while in case of pension retirees who are alive the Government has a continuing obligation and if one is affected by dearness the others may also be similarly affected.
In case of P.F. retirees each one 's rights having finally crystallized on the date of retirement and receipt of P.F. benefits and there being no continuing obligation thereafter they could not be treated at par with the living pensioners.
How the corpus after retirement of a P.F. retiree was affected or benefitted by prices and interest rise was not kept any track of by the Railways.
It appears in each of the cases of option the specified date bore a definite nexus to the objects sought to be achieved by giving of the option.
Option once exer cised was told to have been final.
Options were exercisable vice versa.
It is clarified by Mr. Kapil Sibal that the specified date has been fixed in relation to the reason for giving the option and only the employees who retired after the specified date and before and after the date of notifi cation were made eligible.
This submission appears to have been substantiated by what has been stated by the successive Pay Commissions.
It would also appear that corresponding concomitant benefits were also granted to the Provident Fund holders.
There was, therefore, no discrimination and the question of striking down or reading down clause 3.1 of the 12th Option does not arise.
It would also appear that most of the petitioners before their filing these petitions had more than one opportunities to switch over to the Pension Scheme which they did not exercise.
Some again opted for P.F. Scheme from the Pension Scheme.
Mr. Shanti Bhushan then submits that the same relief as is being canvassed by the petitioners herein has been upheld by this Hon 'ble Court by dismissing the SLP No. 5973/88 of the Government in the case of Union of India vs Ghansham Das and Ors.
against the Judgment of the Central Administrative Tribunal, Bombay.
The Tribunal 383 had held the same notifications as were impugned herein to be discriminatory and had directed that a flesh option be given to all P.F. retirees subject to refund of the Govern ment contribution to Provident Fund received by adjusting it against their pensionary rights.
Similarly, it is submitted, in a Rajasthan case, both the single Judge and the Division Bench have held that all the retirees would have to be given a flesh option as the notifications giving the option only to some retirees are clearly discriminatory.
This view has, it is urged, again been upheld by this Hon 'ble Court by dismissing the Special Leave Petition No. 7192/87 of the Government by order dated 11.8.87.
We have perused the judgments.
The Central Administra tive Tribunal in Transferred Application No. 27/87 was dealing with the case of the petitioners ' right to revise options during the period from 1.4.69 to 14.7.72 as both the petitioners retired during that period.
The tribunal ob served that no explanation was given to it nor could it find any such explanation.
In State of Rajasthan vs Retired C.P.F. Holder Association, Jodhpur, the erstwhile employees of erstwhile Princely State of Jodhpur who after becoming Government servants opted Contributory Provident Fund wanted to be given option to switch over to Pension Scheme, were directed to be allowed to do so by the Rajasthan High Court relying on Nakara which was also followed in Union of India vs Bidhubhushan Malik, ; , subject matter of which was High Court Judges ' pension and as such both are distinguishable on facts.
That the Pension Scheme and the P.F. Scheme are struc turally different is also the view of the Central Pay Com missions and hence ex gratia benefits have been recommended, which may be suitably increased.
In the report of the Third Central Pay Commission 1973, Vol. 4 at page 49, dealing with State Railway Provident Fund it was said: "49.
Both gazetted and non gazetted Railway employees with a service of not less than 15 years who are governed by the State Railway Provident Fund Scheme are at present allowed a special contribution at the rate of 1/4th of a month 's pay for each completed 6 monthly period of service but not exceeding 15 months ' pay or Rs.35,000, whichever is less.
We have been informed by the Railway Board that for such em ployees the Government contribution and the special contri bution to the Provident Fund 384 together constitute the retirement benefits which in other civil departments are given in the shape of pension and death cum retirement gratuity.
Accordingly, when pensionery benefits to the other civil employees were im proved in 1956 and 1957, the maximum of the special contri bution to the provident fund for the Railway employees was also increased from Rs.25,000 to Rs.35,000.
We have not examined whether and to what extent any further increase in this contribution should be made consequent upon the en hancement of the maximum pension and gratuity being recom mended by us for pensionable employees.
The Government may decide the same as they deem fit.
" In the Report of the Fourth Central Pay Commission, in Chapter 9 the Commission has discussed the State Railway Provident Fund Scheme including Contributory Provident Fund Scheme.
In para 9.1 of the report, the Commission said that the employees who joined railways prior to November 16, 1957 and did not opt for the pension scheme were also covered under the C.P.F. Scheme known as State Railways Provident Fund Scheme (SRPF).
About 50,000 employees were stated to be covered under the C.P.F. Scheme of which the majority were in the railways.
The number of employees who retired under the CPF and SRPF schemes were 1.20 lakhs.
Under the CPF scheme every employee was required to subscribe a minimum of 8 1/3 per cent of his reckonable emoluments to be credited to the fund.
The Government makes a matching contribution.
Both the contributions earned interest at a rate specified by the Government from time to time.
On retirement, employ ees governed under the scheme was paid his contribution, the contribution made by the Government and the interest earned on the total amount.
In para 9.3 of the Report it was stated: "The SRPF scheme in the railways was replaced by the pension scheme as applicable to other Central Government employees, in November, 1957 and those employees who were in service on April 1, 1957 and were governed by the scheme were given an option to come under the pension scheme.
Whenever changes occurred in the pension structure for the Central Government employees an option was given to railway employees still covered by the scheme.
Such options have been given on eleven occasions in the 385 past and the last such option was valid upto December, 1985.
" Comparing the advantage and disadvantage of the schemes the Commission said: "While pension scheme has been improved, enlarged and lib eralised from time to time, there has been no similar im provement in the CPF scheme, excepting through improvement of rates of interest which were modified from 7 per cent on 1974 to 9 per cent in 1983 84, to 10 per cent in 1984 85 and to 12 per cent in 1985 86.
While those governed by the pension scheme are entitled to receive dearness relief sanctioned from time to time to compensate for increase in the cost of living, those under the CPF scheme were not entitled to such relief.
The employees governed by the CPF scheme are also not entitled to the family pension available to those governed by the pension scheme.
The matching gov ernment contribution in the case of CPF employees is paid for the full period of service the restriction of 33 years for those governed by pension scheme does not apply in their case.
Those who have retired under the CPF scheme have a corpus yielding regular return.
In the case of railway employees, special contribution to PF is paid at the time of retirement equivalent to half a month 's salary for each completed year of service subject to a maximum of 16 months ' salary or Rs.60,000 whichever is less.
The amount of special contribution has been raised from time to time as and when the limit on death cum retirement gratuity was changed.
" In para 9.5 of the Report as to ex gratia alternative it is stated: "As the pension scheme was introduced on the railways m ' 1957, those who retired earlier did not have an opportunity to opt for pension.
It was, therefore, decided to give some ex gratia payment to them in consideration of the fact that the retirement benefits were lower than what they would have received if they had retired under the pension scheme.
Since this applied mainly to the low paid employees, the ex gratia payment ranging from Rs. 15 to Rs.22.50 per mensem was sanctioned to those drawing pay upto Rs.500 per month.
They were also given relief on a 386 graded scale subsequently.
The amount of ex gratia payment together with the relief now ranges from Rs. 170 to Rs. 283 per mensem.
" In para 9.6, the Commission said that the P.F. and pension schemes are structurally different.
Accordingly alternative ex gratia reliefs were suggested: "We have received a number of suggestions from individuals, associations and other organisations in respect of the CPF scheme.
It has been stated that the objective of both the schemes, viz., pension scheme and the CPF scheme being the same, there should not be differences in the matter of retirement benefits between the pensioners and the benefici aries of the CPF.
It has been urged that the liberalisation in the pension scheme needs to be appropriately extended to the beneficiaries under the CPF scheme.
Since the schemes are structurally different, equality of benefits under the two schemes is not feasible.
We are, however, of the view that the CPF beneficiaries who have retired on low scales of pay deserve some measure of relief.
We according recommend that all the CPF beneficiaries who have retired prior to March 31, 1985 with a basic pay upto Rs.500 per mensem may be given an ex gratia payment of Rs.300 per mensem which will be in addition to the benefits already received by them under the CPF scheme.
The ex gratia payments and the period ic increases already received by those who retired on pay upto Rs.500 may be so adjusted that the total ex gratia amount is not less than Rs.300.
We further recommend that ex gratia amount of Rs.300 per mensem may be reviewed as and when dearness relief is sanctioned to pensioners." "9.7.
Railways have suggested grant of ex gratia payment to the widows and dependent children of deceased employees covered by CPF scheme at 50 per cent of the rate for ex gratia payment.
We agree and recommend accordingly for those getting pay upto Rs.500 per mensem.
The eligibility of widow and minor children for the purposes of this relief may be same as laid down under the pension rules." "9.8.
In so far as the CPF beneficiaries still in service on 387 January 1, 1986 are concerned, we recommend that they should be deemed to have come over to the pension scheme on that date unless they specifically opt out to continue under the CPF scheme.
The CPF beneficiaries who decide to continue to remain under that scheme should not be eligible on retire ment for ex gratia payment recommended by us for the CPF retirees.
Government may, however, extend the benefit of DCRG to CPF beneficiaries in other departments on the same lines as in railways." "9.9.
Government may also consider the feasibility of giving an option to all other CPF retirees who are not covered under paragraph 9.6 above to come over to the pension scheme with effect from January 1, 1986 subject to their refunding to government the entire amount of government contribution inclusive of interest thereon credited to their Provident Fund account at the time of their retirement.
" We have no doubt about the above recommendations receiv ing due consideration by the Union of India.
The 12th Option already given has to be viewed in this context.
The next question debated is that of financial implica tions.
It is submitted that given the fact that the budget for the year 1990 91 for disbursement of pension is Rs.900 crores (as per page 11 of the Budget of the Railway Revenue and Expenditure of the Central Government for 1990 91), the additional liability which would arise by giving relief to the Petitioners would be insignificant in comparison.
Ac cording to the petitioners as per their affidavit dated 15.9.88, the additional liability would come to Rs. 18 crores per annum and this figure would steadily decrease as the number of P.F. retirees diminishes every year due to the fact that this question arises only with respect to very old retirees, and a substantial number of them pass away every year.
The Government in its affidavit dated 21.9.88 has stated that the additional liability as far as the Railway employ ees are concerned, would be Rs.50 crores a year.
This is based on the assumption that there are 79,000 surviving P.F. retirees.
Apart from the fact that this number of 79,000 was based on calculations made in 1988, and would be greatly reduced by this time, the petitioners submit that the actual number of survivors would only be about 38,000.
Thus, the actual burden would be less than half.
Further, even assum ing that the figure 388 of 79,000 put forth by the Government is correct, the aver age annual expenditure per retiree for pension calculated by the Government is incorrect as the calculation includes the non recurring arrear payments for the year 1987 88.
Taking the correct figures of total pension outlay and total number of beneficiaries the per capita pension expenditure per annum works out to Rs.4521.
Multiplying this by 79,000 (assuming the figures of the Railways to be correct) the annual expenditure comes to Rs.35.71 crores.
This compared to the current budget of pensions of Rs.900 crores, is quite insignificant and can be easily awarded by this Court as was done in Nakara, it is urged.
It is submitted in the alternative that if this Court feels that a positive direction cannot be made to the Gov ernment in this regard, it is prayed that at least an option should no given to the respondents either to withdraw the benefit of switching over to pension from every one or to give it to the petitioners as well, so that the discrimina tion must go.
We are not inclined to accept either of these submis sions.
The P.F. retirees and pension retirees having not belonged to a class, there is no discrimination.
In the matter of expenditure includable in the Annual Financial Statement, this Court has to be loath to pass any order to give any direction, because of the division of functions between the three co equal organs of the Government under the Constitution.
Lastly, the question of feasibility of converting all living P.F. retirees to Pension retirees was debated from the point of view of records and adjustments.
Because of the view we have taken in the matter, we do not consider it necessary to express any opinion.
Mr. C.V. Francis in W.P. No. 1165 of 1989 argued the case more or less adopting the arguments of Mr. Shanti Bhushan.
Mrs. Swaran Mahajan, in W.P. No. 1575 of 1986, submitted that the rule as to commuted portion of the pen sion reviving after 15 years should be applied to P.F. retirees so that the corpus of Provident Fund dues received more than 15 years ago should be treated as committed por tion of pension and be allowed to revive for adjustments against pension.
In the view we have taken in this case it is not necessary to express any opinion on this question.
389 Mr. R.B. Datar for the respondent in W.P. No. 1575 of 1986 and W.P. No. 352 of 1989 more or less adopted the arguments of the learned Additional Solicitor General.
In the result, all the Writ Petitions and the Special Leave Petition are dismissed, but the petitioners being retirees, we make no order as to costs.
R.S.S. ' Petitions dismissed.
[/INST]The petitioner was carrying on business as a stockist of Baba Brand Tobacco.
The petitioner 's husband, who was a sub dealer of the product, was living with her at all mate rial times.
A search under section 132 of the Income Tax Act was conducted at their house and valuables and books of account seized.
A notice under rule 112A of the Income Tax Rules read with sub section (5) of section 132 of the Act was served on the petitioner.
The petitioner filed an application in the High Court under Article 226 of the Constitution claiming return of account books and other valuables to her.
On the other hand, in the proceedings under Section 132(5) of the Act against the petitioner 's husband, he had claimed that the ornaments belonged to him and that the same could be treated as representing his undisclosed income.
The High Court came to the conclusion that the authori sation for search under section 132(1) of the Act against the petitioner was not in accordance with law and, there fore, the seizure of the assets could not be said to have been in accordance with law.
The High Court however noted that in view of the order made under section 132(5) of the Act against the husband, the valuables could not be ordered to be returned to the petitioner.
Before this Court, it was contended on behalf of the petitioner that if search and seizure were illegal, the items of jewellery were liable to be returned On behalf of the Revenue, it was contended that in a situation where there was a dispute as to who was the owner of the jewellery and ornaments, the decision of the High Court declining to direct their return to the petitioner could not be faulted.
394 Dismissing the special leave petition, the Court, HELD: (1) A dispute as to the ownership of jewellery in question cannot be resolved in proceedings under Article 226 of the Constitution in the manner sought for by the peti tioner.
[397F] (2) In the instant controversy the Court is not con cerned whether the proceedings against the husband under section 132(5) of the Act are valid or not, but irrespective of the validity of the proceedings, the evidence or testimo ny wherein the husband has asserted the ornaments and jewel lery to be his, cannot be wiped out and does not become non existent.
The aforesaid being the factual matrix, the High Court was pre eminently justified in declining to direct return of these items of jewellery and other items to the wife.
If that is the position, then it cannot be said that the High Court has committed any error in law which required rectification by this Court under Article 136 of the Constitution.
[397E G] Assainer & Anr.
vs Income Tax Officer, Calicut, ; J.R. Malhotra & Anr.
vs Additional Sessions Judge, Jullunder, ; and Commissioner of Commercial Taxes, Board of Revenue, Madras vs Ramkishnan Shrikishan Jhaver, ; , distinguished.
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<s>[INST] Summarize the judgementvil Appeal No. 277 1 of 1981.
From the Judgment and Order dated 5.2.1980 of the Andhra Pradesh High Court in S .A.
No. 526 of 1977.
Jagdish K. Agarwal (N.P.) for the Appellant.
A Subba Rao for the Respondents.
KANIA, J. This is an appeal by special leave from the decision of a learned Single Judge of the Andhra Pradesh High Court in Second Appeal No. 526 of 1977.
As we are, with respect, in agreement with the conclu sions arrived at by the learned Single Judge of the High Court, we propose to set out only the bare facts essential for the purposes of our judgment.
The appellant was the plaintiff and the respondent was the defendant in Suit.
O.S. No. 789 of 1973 filed in the Court of the Third Assistant Judge, City Civil Court, Hyd erabad.
The appellant prayed for a decree for recovery of possession of the suit premises from the respondent and for mesne profits till the delivery of possession of the prem ises.
The case of the appellant was that she was the owner of the suit premises and the respondent was in the occupa tion of the said premises on payment of Rs.30 per month.
The respondent had been 215 irregular in the payment of the said rent and had been a source of perpetual nuisance.
It was on this ground that the eviction of the premises was sought by the appellant.
In his written statement the respondent took a preliminary objec tion that the City Civil Court had no jurisdiction to enter tain the suit as the suit fell within the jurisdiction of the Rent Controller at Hyderabad.
Two petitions had earlier been filed by the appellant before the Rent Controller for eviction of the respondent and the Rent Controller had rejected the same on the ground that the purported tenancy of the respondent was hit by section 3 of the A.P. Rent Control Act and hence, the eviction suit was not entertain able by the Court of Rent Controller.
This conclusion was arrived at on a plea to the said effect taken by the re spondent.
In the Court of learned Third Assistant Judge of the City Civil Court at Hyderabad the respondent took up the plea that the suit fell exclusively within the jurisdiction of the Rent Controller and hence the City Civil Court had no jurisdiction to entertain the suit.
Certain pleas were made regarding amendments in the law with which we are not con cerned in this appeal.
What is material to note for our purposes is that the learned Assistant Judge took the view that as the respondent had, before the Rent Controller, taken up the plea that it was not the Rent Controller but the City Civil Court which had the jurisdiction to entertain the eviction petition against him, and the said plea was upheld, it was not open to the respondent to take up the inconsistent plea before the City Civil Court that it was the Rent Controller and not the City Civil Court which had jurisdiction to entertain the proceedings.
It was held that the respondent could not be allowed to approbate and repro bate and that he was estopped by way of pleading to take up an inconsistent plea regarding jurisdiction.
On the basis of this conclusion, and other conclusions with which we are not concerned, the suit was decreed by the learned Assistant Judge in favour of the appellant.
The decision of the learned Assistant Judge was upheld in an appeal filed by the respondent in the Court of the learned Additional Chief Judge of the City Civil Court at Hyderabad.
On a second appeal preferred by the respondent, the learned Single Judge of the High Court took the view that in matters of jurisdiction the question of estoppel does not arise.
If the City Civil Court has no jurisdiction to entertain the suit, the doctrine of estoppel could not be invoked so as to confer jurisdiction on the Court of City Civil Court.
On the question of jurisdiction the learned Judge took the view that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller.
216 Learned counsel for the appellant submitted that the learned Judge of the High Court was in error,as the earlier decisions of the Rent Controller to the effect that it was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant against the respondent, constituted res judicata between the parties on the question of jurisdiction.
It was submitted by him that, even if that decision was wrong, the issue of jurisdiction was finally decided between the par ties and that decision was that it was the Civil Court and not the Rent Controller that had the jurisdiction to enter tain and dispose of the suit for eviction.
He further sub mitted that the respondent could not be permitted to take inconsistent pleas as he was barred by the principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who had the exclusive jurisdic tion to entertain the suit.
He placed reliance on a decision rendered by a Division Bench comprising two learned Judges of this Court in Avtar Singh and Others vs Jagjit Singh and Another, ; which took the view that the Civil Court 's decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit.
In that case the Civil Court declined jurisdiction.
The Civil Court took the view that it had no jurisdiction to try the suit in question and directed the return of the plaint for representation to the appropriate Revenue Court.
When the claim was filed in the Revenue Court, the Court took the view that it had no juris diction to try the claim.
Thereupon, a suit was again insti tuted in the Civil Court for the lame relief.
This suit failed throughout on the ground of res judicata.
I?he High Court affirmed the dismissal and the Division Bench of this Court took the view that the High Court was right in taking the view hat the principles of res judicata were applicable to the issue of jurisdiction.
In our opinion, the contention of learned counsel for the appellant cannot be upheld.
We find that in Mathura Prasad Bajoo Jaiswal and Others vs Dossibai N.B. Jeejeebhoy; , at p. 836 a Bench comprising three learned Judges of this Court has taken the view that a decision on the question of jurisdiction of the court or a sure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit.
The Court observed: "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correct ness or otherwise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litiga tion between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined 217 in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceed ing between the same parties.
But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in section 11 of the Code of Civil Procedure means the right litigated between the par ties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.
Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of proce dure cannot supersede the law of the land.
" The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta vs Gobind Ram Bohra (dead) through his Lrs.; , We find that the decision of three learned Judges of this Court in Mathurn Prasad Bajoo Jaiswal and Others vs Dossibai N.S. Jeejeebhoy, has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh and Others vs Jagjit Singh and Another, and hence, to the extent, that the judg ment in Avtar Singh 's case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law.
In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law and in this case the question of jurisdiction is a pure question of law.
In our view, therefore, the High Court was, with re spect, right in its conclusions arrived at and the appeal must be dismissed.
The appeal is dismissed.
Looking to the facts and cir cumstances of the case there will be no order as to costs.
G.N. Appeal dis missed.
[/INST]The Respondent landlord filed a suit under the Andhra Pradesh Rent Control Act for recovery of possession and for mesne profits.
The apPellant defendant raised a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit.
In the two eviction petitions filed earlier by the appellant, the Respondent took the plea that since the alleged tenancy was hit by Section 3 of the A.P. Rent Control Act, eviction suit was not entertainable by the Rent Controller.
Decreeing the suit in favour of the appellant, the trial Court held that it was not oPen to the Respondent to take such inconsistent plea regarding jurisdiction; that he cannot be allowed to approbate and reprobate and he was estopped from doing so.
On apPeal by respondent, the deci sion was upheld by the First Appellate Court.
On a second apPeal preferred by the respondent, the High Court reversed the trial court 's order.
Aggrieved by the decision of the High Court, the appel lant preferred this apPeal, by special leave, contending that the principles of Res Judicata and estopPel were ap plicable.
Dismissing the apPeal, this Court, HELD: 1.
A court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law.
[217F] 214 Mahtura Prasad Bajoo Jaiswal and Ors.
vs Dossibai N.B. Jeejeebhoy; , ; Sushil Kumar Mehta vs Gobind Ram Bohra (dead) thro ' his Lrs.; , ; relied on.
Avtar Singh and Ors.
vs Jagjit Singh and Anr., ; ; referred to.
In the instant case, the question of jurisdiction is a pure question of law.
The High Court was right in its conclusions that in matters of jurisdiction to entertain the suit, doctrine of estoppel could not be invoked; and that the City Civil Court had no jurisdiction to entertain the suit, as it lay exclusively within the jurisdiction of the Rent Controller.
[216A B]
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<s>[INST] Summarize the judgementAppeals Nos. 1687 and 1688 of 1968 Appeals from the judgment and order dated August 29, 30, 1967 of the Calcutta High Court in Income Tax Reference No. 16 of 1964.
section Mitra, R. N. Sachthey and B. D. Sharma, for the appellant (in both the appeals).
M. C. Chagla, section M. Jain, B. P. Maheshwari and R. K. Maheshwari for the respondent (in both the appeals).
The Judgment of the Court was delivered by Hegde, J.
These appeals by certificate arise from the decision of the Calcutta High Court in Income tax Reference No. 16 of 1964 on its file.
Therein the High Court was considering a reference made by the Income Tax Appellate Tribunal 'B ' Bench Calcutta under section 66 (1) of the Indian Income Tax Act, 1922 to be hereinafter referred to as 'the Act '.
The question of law which was referred for the opinion of the High Court reads thus : "Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that in view of the capital loss of Rs. 12,00,000/ suffered by the assessee on account of depreciation in the value of the shares of Messrs. Elphinstone Mills Ltd. payment of any dividend at all during any of the two relevant accounting years would have been unreasonable ?" The assessment years with which we are concerned in these appeals are 1955 56 and 1956 57, the corresponding accounting years being the years ending on June 30, 1954 and June 30, 1955.
The assessee is a limited company doing business as selling agents of a Textile Mill.
For the assessment year 1955 56 the assessee was assessed on a total income of Rs. 1,61,089/ and taxes paid were Rs. 69,973/ leaving a distributable balance of Rs. 91,116/ .
According to the Profit & Loss Account, however, the company suffered a net loss of Rs. 11,63,874/ and this was due to the loss of Rs. 12,00,000/ on account of depreciation in the value of 83 shares held by the company in Elphinstone Mill Ltd. of Bombay.
The Income tax authorities disallowed an amount of Rs. 11,88,000/ out of this loss on the ground that it relates to the price paid for the shares purchased for the sake of acquiring the managing agency of the: Elphinstone Mills Ltd. The Tribunal upheld the disallowance on the ground that the amount of Rs. 11,88,COO/was a loss relating to shares held by the company in its, investment account.
The company however, did not declare any dividend for the year in question.
The Income tax Officer in exercise of his powers under Section 23 A(1) levied additional super tax @ /4/ per rupee on the distributable surplus of Rs. 91,116/ .
In so doing be ignored.
the loss in the value of the, shares in Elphinstone Mills.
Ltd. For the assessment year 1956 57 the total income assessed was Rs. 1,07,429/ and the taxes payable thereon were Rs. 46,668/ leaving a distributable surplus of Rs60,761/ .
In this year also the company did not declare any dividend because of the loss referred to earlier.
The. income tax Officer, however, again invoked the provisions of Section 23A (1) and levied additional super tax @ /4/ per rupee on the surplus of Rs. 60,761/ .
In appeal, the Asstt.
Commissioner took the view that the loss incurred by the company was a capital loss.
But all the same as there was no commercial profits in the relevant accounting years it was not reasonable to expect the assessee company to declare any dividend in respect of those years in view of the capital loss incurred and he,.
therefore, cancelled the orders of the Income tax Officer under section 23A (1).
Aggrieved by the Order of the Appellate Assistant Commissioner, the department appealed to the Tribunal.
The Tribunal agreed with the conclusions reached by the Appellate Assistant Commissioner.
It held that under the circumstances the Directors were justified in 'not declaring any dividend in respect of the profits that had accrued in the accounting years.
At the instance of the Commissioner, the Tribunal submitted to the High, Court of Calcutta the question of law set out by us earlier.
The High Court answered that question in favour of the assessee.
8 4 The Tribunal the final fact finding authority has ,come to the conclusion that the assessee had incurred a capital loss of Rs. 12,00,000/ as a result of the depreciation of the value of the shares of Elphinstone Mills Ltd. The question is whether that was a relevant circumstance for not 'declaring any dividend.
The further ,question is whether the Directors of the assessee company acted as prudent businessmen in refraining from ,declaring any dividend.
Section 23A (1) of the Act reads : " Where the Income tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company within the twelve months immediately following the expiry of that previous year are less than the statutory percentage of the total income of the company of that previous year as reduced by (a) the amount of income tax and super tax payable by the company in respect of its total income, but excluding the amount of any super tax payable under this section (b) the amount of any other tax levied under any law for the time being in force on the company by the Government or by a local authority in excess of the amount, if any, which has been allowed in computing the total income; and (c) in the case of a banking company, the amount actually transferred to a reserve fund under section 17 of the Banking Companies Act, 1949; the Income tax Officer shall, unless he is satisfied that, having regard to the losses incurred by the company in earlier years or to the smallness of the profits made in the previous year, the payment of a dividend or a larger dividend than that declared would be unreasonable, make an order in writing that the company shall, apart from the sum deter mined as payable by it on the basis of the assessment under section 23, be liable to pay super tax at the rate of fifty per cent in the case of a company whose business consists wholly or mainly in the 85 dealing in or holding of investments, and at the rate of thirty seven per cent in the case of any other company on the undistributed balance of the total income of the previous year, that is to say, on the total income as reduced by the amounts, if any, referred to in clause (a), clause (b) or clause (c) and the dividends actually distributed, if any." Whether in a particular year dividend should be declared or not is a matter primarily for the Directors of a company.
The Income tax Officer can step in under Section 23A (1) only if the Directors unjustifiably refrain from declaring dividend.
If the Directors of a company had reasonable grounds for not declaring any dividend, it is not open for the Income tax Officer to constitute himself as a super Director.
As observed by this Court in Commissioner of Income tax, West Bengal, vs Gangadliar Bannerjee and Co. (Pvt.
) Ltd. ' the Income tax Officer, in considering whether the payment of a dividend or a larger dividend than that declared by a company would be unreasonable within the meaning of Section 23A of the Act does not assess any income to tax.
He only does what the directors should have done putting himself in their place.
Though the object of the section is to prevent evasion of tax, the provision must be worked not from the standpoint of the tax collector but from that of a businessman.
The reasonableness or unreasonableness of the amount distributed as dividends is judged by business considerations, such as the previous losses, the present profits, the availability of surplus money and the reasonable requirements of the future and similar others.
The Income tax Officer must take an overall picture of the financial position of the business.
He should put himself in the position of a prudent businessman or the director of a company and deal with the problem with a sympathetic and objective approach.
On the facts found by the Tribunal, there can be hardly any doubt that the assessee had suffered a capital loss of Rs. 12,00,000/ .
In our opinion, in view of the the said loss, any reasonable body of Directors of a company would have done just what the Directors of the (1) 86 assessee company did.
We think, that the Income tax officer took an erroneous view of the scope of Section 23A (1).
Mr. Mitra, learned counsel for the department contended that the assessee had not in fact incurred any loss though the value of the shares had gone down in the market.
As the assessee was still in possession of those shares, there was still a possibility of avoiding the anticipated loss.
Hence there was no occasion to take note of the depreciation in the value of the shares in the matter of declaration of dividends.
This is an unacceptable contention.
The Directors of a company will be justified in taking things as they stand and not befool themselves in the wild hope that the value of the shares may come up again.
They are expected to act as hard headed businessmen.
They are not expected to gamble with the future of the concern.
The question is not whether the value of the shares may not go up in future but whether the Directors were justified in not declaring dividends in view of the loss incurred.
The Income tax Officer overlooked the fact the Directors were naturally more interested in the stability of their concern rather than in increasing the tax payable to the Government.
Before the High Court, it appears to have been urge Mr. Mitra rightly did not press that plea that the loss incurred being a capital loss the same cannot be taken into consideration in the application of Section 23A (1).
This very contention was examined and rejected by the Judicial Committee in Commissioner of Income tax vs Williamson Diamonds Ltd.(1).
In that case their Lordships were con sidering the scope of section 21 (1) "(Consolidation) Ordinance, 1950 of Tanganyika.
" That provision corresponds very closely to Section 23A (1) of the Act.
Dealing with the scope of that provision, their Lordships observed: "It does not follow from what has been said that capital losses should not be taken into account by the Commissioner.
Two matters are mentioned specifically in the words which give him a direction the first is 'losses ' (as interpreted above) and the second is "smallness of profit." The Commissioner (1) 87 is directed to come to a decision upon the question whether "the payment of a dividend or a larger divdend than.
that declared" his unreasonable. "The form of the word used no doubt lends itself to, the suggestion than regard should be paid only to the two matters mentioned, but it appears to their Lordships that it is impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors.
Moreover, the Statute does not say 'having regard only ' to losses previously incurred by the company and to the smallness of the profits made.
No answer which can be said to be in any measure adequate, can be given to the question "unreasonableness" considering these two matters only.
Their Lordships are of the opinion that the Statute by the words used while making sure that "losses and smallness of profit" are never lost sight of require all matters relevant to the question of unreasonableness to be considered capital loss, if established is one of them.
" We respectfully agree with these observations.
For the reasons mentioned above, these appeals fail and they are dismissed with costs.
One hearing fee.
G.C. Appeals dismissed.
[/INST]The assessee was a limited company doing business as selling agents of a Textile Mill.
During the previous years relevant for the assessment years 1955 56 and 1956 57 the company had assessable profits but did not declare dividend, because capital loss far in excess of profits was incurred by it due to fall in value of its share holdings.
The Income tax Officer exercised his powers under section 23A (1) and levied additional super tax on the distributable surplus in the relevant years.
The Appellate Assistant Commissioner, the Tribunal and the High Court however, took the opposite view, holding that in the circumstances it was not reasonable to expect the company to declare dividend.
In appeal to this Court by the Revenue, HELD : Whether in a particular year dividend should be declared or, not is a matter primarily for the Directors of a company.
The Income tax Officer can step in under section 23A(1) only if the Directors unjustifiably refrain from declaring dividend.
If the Directors of a company had reasonable grounds for not declaring any dividend, it is not open for the Income tax Officer to constitute himself as a super Director.
Though the object of the section is to prevent evasion of tax, the provision must be worked not from the standpoint of the tax collector but from that of a business man.
[85C E] Commissioner of Income tax, West Bengal vs Gangadliar Bannerjee & Co. (P) Ltd. 57 , relied on.
In the present case in view of the capital loss of Rs. 12 lacs as found by the Tribunal, any reasonable body of Directors of a company would have done just what the Directors of the Assessee company did.
The Income tax Officer took an erroneous view of section 23A (1).
[85H] The fact that the company continued to hold the shares whose value could possible go up again was irrelevant.
The Directors of a company will be justified in taking things as they stand and not be fool themselves in the wild hope that the value of the shares may come up again.
[86C] It would be incorrect to say that capital loss cannot be taken into consideration in the application of section 23A(1).
[86E F] Commissioner of Income tax vs Williamson Diamonds Ltd. , applied. 82
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<s>[INST] Summarize the judgementAppeals Nos.
2382 2384 of 1966.
Appeals from the judgment and orders dated October 6, 1966 of the Mysore High Court in Writ Petitions Nos.
1056, 1607 and 1298 of 1966, section T. Desai, section C. Javali and Vineet Kumar, for the appellant (in all the appeals).
M. M. Ramamurthi and Shyamala Pappu, for respondent No. 1 (in all the appeals) and respondent No. 2 (in C. A. No. 2382 of 1966).
89 The Judgment of the Court was delivered by Shah, J.
On May 3, 1966 the Municipality of Raichur imposed octroi duty on goods specified in Sch.
11 to the Mysore.
Municipalities Act 22 of 1964, entering the municipal limits for consumption, use or sale.
The respondents who are traders in cloth at Raichur moved the High Court of Mysore by petitions under article 226 of the Constitution challenging the levy and collection of octroi duty on goods described in Sch.
II of the Act in pursuance of the notification dated May 3, 1966.
The High Court of Mysore held that the tax was properly imposed, but in their view collection of the tax was not authorised by law.
The High Court accordingly issued a writ of mandamus restraining the Municipal Council, Raichur from recovering the octroi duty levied in pursuance of the notification dated May 3, 1966.
The Municipal Council, Raichur, has appealed to this Court against the orders passed by the High Court.
The relevant provisions of the Mysore Municipalities Act 22 of 1964 and the Bye Laws may be summaried.
By section 94 the Municipal Council is authorised, subject to the general or special orders of the Government, and after observing the preliminary procedure prescribed by section 95, to levy, among other taxes, octroi on goods specified in Sch.
II entering the municipal limits for consumption, use or sale therein.
By sub section
(3) of section 94 it is provided that the taxes specified in sub section
(1) shall be assessed, levied and collected in accordance with the provisions of the Act and the rules made by the Government under section 323.
Section 95 prescribes the procedure preliminary to imposition of tax.
A municipal council has by resolution passed at a general meeting to select for the purpose one or more of the taxes specified in section 94 and in such resolution to specify the classes of persons or of property or of both which the municipal council proposes to make liable and to prescribe exemptions which it proposes to make, the amount or rate at which the municipal council.
proposes to assess any such class, and in the case; of octroi, the octroi stations.
The resolution must be published in the official Gazette and in such other manner as may be prescribed.
Any inhabitant of the municipality may within one month from the publication of the notice submit his objection to the imposition of the tax or to the amount or rate proposed, or to the classes of persons or property to be made liable, or to any exemptions proposed.
The municipal council must take into consideration the objections and submit to the Government of the State such objections with its opinion thereon and any modifications proposed in accordance therewith together with a copy of the notice.
A resolution sanctioned by the Government together with a notice reciting the sanction and the date and number thereof may then be published by the ,municipal council in the official Gazette, and the tax as prescribed by the, resolution shall be imposed accordingly.
Sub section (2) of "The publication of a notice under this section shall be conclusive evidence that the tax has been imposed in 90 accordance with the provisions of this Act and the rules made thereunder".
Section 123 provides that every municipal council when submitting for sanction a proposal for the imposition of octroi, shall submit therewith for sanction bye laws for the purposes of cl.
(m) of sub section
(1) of section 324 or adopt model bye laws made for the said purposes.
Section 124 deals with "non liability for octroi and refund of octroi on goods in transit".
Section 125 invests the municipal council with power to exempt articles liable to octroi duty, and section 126 relates to the presentation of bills for octroi and prescribes penalties for evasion of payment of octroi.
Section 127 prescribes the penalty for selling articles liable to octroi without a licence, or for being in possession of any such article on which octroi has not been paid.
Section 323 authorises the Government to make rules for carrying out all or any of the purposes of the Act and to prescribe forms for any proceeding for which it considers that a form shall be prescribed.
Exercising the authority conferred by section 323 the Government of Mysore published on September 2, 1965, the Mysore Municipalities Taxation Rules, 1965.
Rules 25 to 32 deal with the collection of octroi.
Rule 25 deals with the mode of collection; r. 26 with pay ment of octroi, r. 27 with assessment and collection of octroi at octroi station; and r. 28 with the procedure in case where octroi is leviable ad valorem.
Rule 3.1 requires the municipal council to maintain a list of traders and public bodies allowed to have an account current, and r. 32 requires a trader or public body allowed, to have an account current to present a declaration in Form VII.
Section 324 authorises the municipal council to make, alter or rescind bye laws, subject to the provisions of the Act and the rules made thereunder.
Clause (m) provides, insofar as it is material: " providing for the exhibition of tables of octroi, requiring a licence to be obtained for the sale of any article liable to octroi and prescribing the, conditions on or subject to which such licence may be granted, refused, suspended or withdrawn, regulating, subject to any general or special orders which the Government may make in this behalf, the system under which refunds are to be made on account thereof when the goods on which the octroi has been paid, or article manufactured wholly or in part from such goods, are again exported and the custody or storage of goods declared not to be intended for use or consumption or for sale within the municipality;. . .
Section 325(2) provides that a municipal council may by resolution adopt in respect of any matter the model bye laws made by the Government under sub section
(1) of section 325 in respect 'of matters specified in section 324.
Sub section (3) of section 325 provides: "If a municipal council proposes to adopt the model bye laws in respect of any matter subject to any modifications, the procedure specified in sub sections (4), (5) and (6) 91 of section 324 shall be followed as if the modifications were bye laws proposed to be made by the municipal council.
The modifications as approved by the Government shall be published in the prescribed manner and the model bye laws shall subject to such modifications come into force from such date as may be specified by the municipal council and where no date is specified on the date of such publication".
Sub sections (4) & (5) of section 324 set out the procedure to be followed by the municipal council in the making and publication of bye laws.
Sub section (6) authorises the local Government while approving the bye laws to make any changes therein which appear to it to be necessary.
In the present case the Municipal Council adopted the model bye laws framed by the Government.
It appears, however, that the table of rates in model bye law 16 relating to the levy of storage fee and charges on goods placed in the bonded warehouses was left blank.
The Municipal Council has however by resolution prescribed a, table of rates of storage fee and charges in respect of different classes of articles stored in the bonded warehouses.
The respondents challenge in this Court the validity of the imposition of octroi duty on two grounds: (i) that there was no valid resolution by the Municipal Council under section 94 of the Act selecting the octroi duty for imposition, and (ii) that the model bye laws having been altered by adding a tariff of storage fee in the bonded warehouses without following the procedure prescribed under section 324(4) & (5), the model bye laws could not be deemed to have been validly adopted by the Municipal Council.
They also submit that the Municipal Council has no authority to collect octroi duty, and support the judgment of the High Court, on that question.
Before considering the arguments advanced at the Bar, the steps taken by the Municipal Council for imposing the tax and for adoption of the model bye laws may be briefly set out.
On June 11, 1965 the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch. 11 under section 94 of the Mysore Municipalities Act, ' 1964, at the maximum rates at the octroi barriers specified therein.
It was recited in the resolution that confirmation of the general body be obtained.
By resolution dated June 28, 1965 the general body resolved unanimously to confirm the recommendations of the Standing Committee dated June 11, 1965.
On October 27, 1965 the notification under section 95 of the Act by the Municipality inviting objections to the proposals to impose octroi tax was published.
No Objections were received from any resident of the Municipality against the proposal to levy octroi.
On February 26, 1966 there was a special general body meeting of the, Municipal Council and it was resolved to levy 92 octroi with effect from April 1, 1966.
The resolution was in the following terms: "After due decision and consideration it was unanimously resolved to levy the octroi duty on all the goods imported within municipal limits of Raichur under the Schedule II of Mysore Municipalities Act, 1964, from the first day of April 1966.
Further the Committee resolved that the Hyderabad District Municipalities Octroi Rules, 1959, will continue till the new Octroi Rules and Bye laws are finalised under Mysore Municipalities Act, 1964.
" But this resolution was amended on March 25, 1966, and the second paragraph was substituted by the following paragraph: "Further the Committee resolved that the appended Bye laws framed by the Municipality in the light of Octroi Model Bye laws 1965 published by the Government in the Mysore Gazette dated 11th November, 1965, have been fully approved.
" Approval to the modification in the second paragraph was ob tained by circulation to the members and not in an open general meeting.
On March 31, 1966 the minutes of the meeting dated February 26, 1966, and the adoption of the resolution modifying the second paragraph by circulation on March 25, 1966, were read, heard and confirmed unanimously.
The storage fee under bye law 16 of the model bye laws was also adopted.
On April 16, 1966 sanction of the Government under section 96 of the Act to the levy of octroi and the adoption of model bye laws was given, and on May 3, 1966, the notification under section 97 of the Act imposing octroi duty under Sch.
II to the Act and adopting the bye laws was published.
Thereafter on various dates in the months of July and August 1966, the writ petitions out of which these appeals arise were filed.
There is no substance in the contention that the municipal council had not passed a resolution selecting the octroi tax for imposition.
As stated earlier, on June 11, 1965, the Standing Committee of the Municipal Council had "resolved to impose octroi duty" under Sch. 11 to the Act.
But the resolution also stated that confirmation of the general body meeting should be obtained.
The Municipal Council at its meeting dated June 28, 1965 treated the resolution of the Standing Committee as a recommendation and confirmed the recommendation.
The resolution dated June 28, 1965, was passed by the general body and thereby the Municipal Council adopted the recommendations of the Standing Committee, and resolved to select levy of octroi duty at the maximum rates at the octroi barriers specified therein.
It is true that the resolution modifying the original resolution dated February 26, 1966 was passed by circulation on March 25, 93 1966.
But in view of the terms of section 80(5) the validity of the resolution was not liable to be questioned on the ground of irregularity which manifestly did not affect the merit of the case.
, It may be recalled that on March 31, 1966 the "circulation dated 25 3 66 were read, heard and confirmed unanimously.
" The plea that a resolution passed by the Municipal Council cannot, under the Act, be modified or cancelled within three months is without force.
Section 57 of the Act provides that no resolution of a municipal council shall be modified or cancelled within three months after the passing thereof except by a resolution passed in the manner prescribed in that behalf.
There are no materials on the record to prove that the requirements of section 57 were not complied with, and section 97(2) prohibits an enquiry into the regularity of the procedure for imposition of the tax after a notice under section 97(1) is published.
This Court in Municipal Board, Hapur vs Raghuvendra Kripal & Ors.(1) in dealing with a similar provision in section 135 of the U. P. Municipalities Act 2 of 1916, held that section 135(3) shuts out enquiry into the procedure by which a tax had been imposed.
Hidayatullah, J., speaking for the majority observed (p. 958) .
"There is a difference between the tax and the imposition of the tax.
The former is the levy itself and the latter the method by which the levy is imposed and collected.
What the sub section does is to put beyond question the procedure by which the tax is imposed, that is to say, the various steps taken to impose it." Section 97(2) makes the publication of the notice under section 97(1) conclusive evidence that the tax has been imposed in accordance with the provisions of the Act and the rules made thereunder.
The expression "imposed in accordance with the provisions of this Act", in our judgment, means "imposed in accordance with the procedure provided under the Act".
All enquiry into the regularity of the procedure followed by the Municipal Council prior to the publication of the notice is excluded by section 97(2).
This is not a case in which the Municipal Council had not selected a tax for imposition by a resolution: nor is it a case in which the Municipal Council was seeking to levy tax not authorised by law.
A Municipal Council when submitting for sanction a proposal for the imposition of octroi has to submit under section 123 with the proposal for imposition of octroi, also ' bye laws for the purposes of cl.
(m) of sub section
(1) of section 324, or to adopt model bye laws made for the said purposes.
It is to be noticed that under section 94(3) of the Act the tax has to be.
assessed, levied and collected in accordance (1)[1966] I S.C.R. 950.
94 with the provisions of the Act and the rules made by the Government under section 323.
Bye laws contemplated to be made under section 324(1)(m) and required to be adopted from the model bye laws or specially framed and submitted under section 123 deal with matters of details, such as the exhibition of tables of octroi; requiring a licence to be obtained for the sale of any article liable to octroi and prescribing the conditions on or subject to which such licence may be granted, refused, suspended or withdrawn , regulating the system under which the refunds are to be made when the goods on which the octroi has been paid are again exported; for the custody or storage of goods declared not to be intended for use or consumption or for sale within the municipality; prescribing a period of limitation after which no claim for refund of octroi shall be entertained; and prescribing the minimum amount for which any claim for refund may be made.
If bye laws in respect of these matters specified in cl.
(m) of section 324(1) are made and submitted for sanction or model bye laws framed by the Government for those purposes are adopted, the requirements of section 123(1) will be satisfied, and if the State Government sanctions the resolution of the Municipal Council imposing octroi duty under section 97(1) and the notice is duly published, octroi duty may be collected by the Municipal Council.
Defect in the bye laws will not affect the authority of the Municipal Council to collect the tax, for the authority arises under section 94(3) from the Act and the rules.
The Municipal Council of Raichur adopted the model byelaws made by the Government.
None of the bye laws "for the purposes" of cl.
(m) of section 324 in the model bye laws was defective or incomplete.
The model bye laws undoubtedly did not prescribe the storage fee, and the resolution of the Municipal Council levying storage fee at the rates set out in the bye laws and submitted to the Government was not made in conformity with the terms of section 324(4) & (5).
The High Court held that the bye laws adopted by the Muni cipal Council were invalid because (1) the resolution dated February 26,1966 could not have been modified by circulation; and (2) that it was not shown that the Municipal Council had complied with the requirements of section 57 when modifying the resolution dated February 26, 1966; and (3) that the State Government had not fixed the time prescribed by bye laws Nos.
23(e), 27, 28 and 32, and since no decision was taken on those bye laws by the Municipal Council, the enforcement of the octroi levy was "rendered difficult".
It is clear that under section 325(3) modifications to the model bye laws alone require compliance with sub sections
(4) & (5) of section 324.
It may be assumed that fixing a tariff for storage fee under bye law 16 which is not prescribed under the model bye laws amounts to 95 modification of the bye laws, but even on that assumption only bye law 16 may be deemed to be invalid, and the power to collect the storage fee may not be lawfuly exercised by the Municipal Council: that does not affect the validity of the other bye laws.
If without a particular bye law, the scheme of the.
rest of the bye laws may be unworkable, it may follow by necessary implication that the other bye laws have also become ineffective.
But that cannot be said of the defect in adopting the table of fees for the purpose of bye law 16.
The Municipal Council may not be entitled to levy any charge for storage under bye law 16, but that is the only effect of non compliance with the terms of sub sections
(4) and (5) of section 324.
The other bye laws remain valid and operative, for they are plainly severable.
Bye law 23(e) of the model bye laws provides that no refunds shall be allowed in respect of goods which are transported outside the municipal limits within one month of their being brought into the municipal limits, but regarding which the intimation has not been given to the Municipal Commissioner or Chief Officer within such time as may be fixed by the Municipal Council.
Bye law 27 provides that the application for refund with the goods to which it relates shall be presented at the Octroi Station through which it is transported outside the municipal limits within such interval from the hour of examination as the municipal council may determine.
Similarly bye law 28 provides that the Octroi Official inCharge of the Octroi Station shall satisfy himself that the goods produced for transport outside the municipal limits as covered by the refund application correspond with the entries in the refund application form and that they are presented within the time fixed by the Municipal Council under bye law 27.
In our judgment, the time contemplated to be fixed for the purposes of bye laws 23(e), 27 & 28 need not be fixed by the bye laws.
If time is fixed by resolution of the Municipal Council even after the bye laws are sanctioned, there would be no defect in the bye laws.
Bye law 32 provides that no person shall sell articles men tioned therein without obtaining a licence granted in that behalf.
The model bye law is silent as to the articles which may not be sold without obtaining a licence.
Bye laws 313 to 36 depend for their 'operation upon the list of articles being effectively incorporated in bye law 32.
Failure to incorporate the list of articles would result in the Municipal Council being unable to enforce compliance with the requirements of taking out a licence.
But we are unable to hold that because of the failure to fix the time under bye laws 23(e), 27, 28, or for failure to incorporate the list of articles in bye law 32, the rest of the bye laws became ineffective.
We are of the view that even without these bye laws and bye law 16, octroi duty may be levied by the Municipal Council.
In our view, the High Court was in error in holding that the model byelaws which were adopted by the Municipal Council were unenforceable.
96 The appeals must therefore be allowed and the petitions filed by the respondents dismissed with costs in this Court.
One hearing fee.
The order passed by the High Court regarding the costs is maintained.
G.C. Appeals allowed.
[/INST]On June 11, 1965, the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch.
II under section 94 of the Mysore Municipalities Act, 1964.
It was recited in the resolution that the confirmation of the general body be obtained.
The general body unanimously approved the resolution of the Standing Committee.
On October 27, 1965 the notification under section 95 of the Act inviting objections from the public was published; no objections were received.
On February 26, 1966 there was a special general body meeting and it was.
resolved to levy octroi with effect from April 1, 1966.
This resolution was however amended by modification of its second paragraph on March 25, 1966.
Approval to this modification was obtained at first by circulation to the members on March 31, 1966 the minutes of the meeting dated February 26, 1966 and the adoption of the resolution modifying the second paragraph by circulation on March 25, 1966, were read, heard and confirmed unanimously.
As required by section 123 of the Act the model bye laws framed by Government were adopted but the table of rates in model bye law 16 relating to the levy of storage fee and charges on goods placed in the bonded warehouses was, left blank.
The rates were fixed by the Council by its resolution of March 31, 1966.
On April 16, 1966 sanction of the Government under section 96 of the Act to the levy of octroi and the adoption of model by laws was given and on May 3, 1966, the notification under section 97 of the Act imposing octroi duty under Sch.
II and adopting the bye laws was published.
The respondents who were dealers in cloth in Raichur moved the High Court of Mysore under article 226 of the Constitution.
The High Court held that though octroi had been properly levied its collection wag unau thorised owing to defects in the bye laws adopted.
The municipality appealed.
The following questions fell for consideration: (i) whether the resolution levying the octroi and the subsequent modification of the said resolution were procedurally valid (ii) whether the fixation of rates for the purpose of model bye law 16 was validly made, the procedure in section 324(4) and (5) not having been followed , (iii) whether the bye laws were unenforceable for the reason that they did not fix the time for the purpose of bye laws 23, 27 and 28 and did not give a list of articles for the purpose of bye laws 33 to 36.
HELD:(i) The resolution of the Standing Committee selecting octroi tax for imposition expressly stated that confirmation of the general body would be obtained, and such confirmation was actually obtained.
It could not in the circumstances be contended that 88 there was no valid resolution by the Municipal Council under section 94 selecting octroi duty for imposition.
[92F H] The resolution modifying the original resolution dated February 26, 1966 was no doubt passed by circulation but later the said circulation was "read, heard and confirmed unanimously" by the general body.
Under section 80(5) any irregularity not affecting the merit of the case can be cured and section 97(2) prohibits enquiry into the regularity of the procedure by which a tax has been imposed after a notice under section 97 (1) is published.
No material had been placed before the Court to show that in making the modification section 57 had not been complied with.
[93A D] Municipal, Board, Hapur vs Raghuvendra Kripal & Ors., ; , relied on.
(ii)If bye laws in respect of the matters specified in cl.
(m) of section 324(1) are made and submitted for sanction or model bye laws framed by the Government for those purposes are adopted, the requirements of section 123(1) will be satisfied, and if Government sanctions the resolution of the Municipal Council imposing octroi duty under section 97(1) and the notice is duly published.
octroi duty may be collected by the Municipal Council.
Defect in 'the bye laws will not affect the authority of the Municipal Council to collect the tax for the authority arises under section 94(3) from Act and the Rules.
[94C D] The Municipal Council by fixing a tariff for storage fee under bye law 16 modified the model bye laws, and since the modification was made without the Procedure prescribed in section 324(4) and (5) the said bye law was invalid.
As a result the Municipal Council was not entitled to levy any charge for storage under bye law 16.
But the validity of other bye laws was not thereby affected.
[94H 95C] (iii)The time contemplated to be fixed for the purposes of byelaws 23(e), 27 and 28 need not be fixed in the bye laws.
If time is fixed by resolution of the Municipal Council after the bye laws are sanctioned, there would be no defect in the bye laws.
[95E F] Bye laws 33 to 36 depend for their operation upon the list of articles being effectively incorporated in bye law 32.
Failure to incorporate the list of articles would result in the Municipal Council I being unable to enforce compliance with the requirement of taking out a licence.
The rest of the by laws did not threby become ineffective.
[95G H]
</s>
|
<s>[INST] Summarize the judgementminal Appeal No. 808 of 1973.
From the judgment and order dated the 30th March, 1973 of the Punjab & Haryana High Court in Election Petition No. 14 of 1972.
R. K. Garg, section C. Agarwala, V. J. Francis add R. C. K. Kaushik, for the appellant.
T. section Krishnamurthi Iyer, K. C. Agarwala, M. M. L. Srivastavta and E. C. Agrwala, for respondent No. 1.
A. T. M. Sampath, for respondent No. 2.
The Judgment of the Court was delivered by BEG, J.
Pritam Singh, the appellant before us under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act '), was elected at an election held on 11 3 1972 for the Haryana State Legislative Assembly, the result of which was declared 47OSCI/75 586 on 12 3 1972.
The Respondent Balbir Singh questioned this election by, means of an election petition alleging that the, election was void as the appellant had committed corrupt practices hit by section 123, sub.
s.4, 5 and 6 of the Act.
The petition was allowed by a learned Judge of the, High Court of Punjab & Haryana, solely on the ground that the corrupt practice, provided for as follows, in Section 123(5) of the Act, was committed by the appellant: " 123(5).
The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub section (1) of section 29 for the poll : Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purposes of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel sp hired is a vehicle or vessel not propelled by mechanical power Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost, for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause".
The appellant assails the judgment of the High Court on the following main grounds with which we will deal seriatim : 1.
That, the High Court erred in relying upon legally unproved entries in what is called a Pukar book or register showing both the hiring out and then payments for the use of certain trucks on 11 31972, the date of election, for purposes of election.
That, the Register itself is inadmissible in evidence under any provision of the Evidence Act.
That, the entries in the Pukar Register are suspicious indicating that the Register itself, or, atleast, the entries involved were not contemporaneous but fabricated after the election was over.
That, the High Court erred in relying upon the evidence of challans by the police on 11 3 1972 of drivers of trucks said to have been used by the appellant when the best evidence in the possession of the police relating to these challans was not forthcoming so that the challans appeared to have been maneuvered for the purpose of supporting a false case.
That, the High Court erred in relying upon merely uncorroborated oral testimony of Motor truck drivers in accepting the respondent 's case which was not really corroborated as the alleged corroborative evidence was not evidence at all in the eye of law, 587 6.
That, the High Court overlooked the well established principle that the charge of a corrupt practice in the course of an election must be treated as quasi criminal in character which has to be proved beyond reasonable doubt.
We will deal with these objections, in the reverse order, starting with the last mentioned ground of attack on the High Court 's judgment.
The judgment rests largely on appreciation of oral evidence.
It could not, therefore, be easily disturbed us as has been repeatedly pointed out by this Court even in first appeals on facts in election cases.
If the High Court overlooks serious infirmities in the evidence adduced to support the case accepted by it or misreads evidence or ignores the principle that a charge of corrupt practice, in the course of an election, is a grave one which, if established, casts a serious reflection and imposes a disability upon the candidate held guilty of it, so that the Court must be satisfied beyond reasonable doubt about its veracity, this Court will not hesitate to interfere.
Learned.
Counsel for the appellant has relied upon the decision of this Court in Rahim Khan vs Khurshid Ahmed & Ors.,(1) where Krishna Iyer, J., speaking for this Court, said (at p. 666) : "An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by Ming election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate.
An election is a politically sacred public act, not of one person or _of one official, but of the collective will of the whole constituency.
Courts naturally must respect this public expression secretly written and show extreme reluctance to act aside or declare, void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced.
Indeed, election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi criminal nature wherein strict proof is necessary.
The burden is therefore heavy on him who assails an election which has been concluded".
In Rahim Khan 's case (supra) our learned brother Krishna lyre also warned us in the word of Sydney Harris (at p. 666) "Once we assuage our conscience by calling something a necessary evil ', it begins to look more and more necessary and less and less evil".
He then proceeded to observe (at p. 666) "For this very reason the Court has to be stern so as induce in the candidates, the parties and workers that temper and truthfulness so appropriate to the process. (1) 1974 2 SCC p. 660 @ P. 666.
588 After pointing out the difficulty of laying down any past iron or rigid rules for testing the veracity of witnesses, this Court said (at p. 672) there "We regard it as extremely unsafe, in the present climate of kilkenny cat election competitions and partisan witnesses wear ingrobes of veracity, to upturn a hard won electoral victory merely becauselip service to a corrupt practice has been rendered by somesanctimonious witnesses.
The Court must look for seriousassurance, undying circumstances, or unimpeachabledocuments to uphold grave charges of corrupt practice whichmight not merely cancel the election result, but extinguish many a man 's public life".
In that case, this Court found the charge of a corrupt practice to be established upon oral and documentary evidence given to support it.
In the case before us, we find that the High Court accepted the evidence of Uggar Sain, P.W. 24, because, inter alia, it was supported by a "Pukar Register_" kept by the Union of truck drivers of trucks hired in the order said to be determined by their places in the Register.
It relied on this evidence despite certain serious objections to the entries in the Register showing payments for the trucks said to have been used by the appellant.
The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokha Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajinder Singh, P.W 38, each of whom had deposed that he was paid a sum of Rs. 150/ on 10 3 1972 for performing election duty for the appellant for carrying voters on 11 3 1972.
The learned Judge observed about these drivers : "None of them is shown to be interested in the petitioner or against the returned candidate nor was the deposition of any one of them shaken in cross examination and I do ,act see any good reason for discarding their sworn word.
As would be seen later, they actually plied their trucks for the returned candidate on the 11th of March, 1972. a fact which clinches the matter against him".
The denial of the returned candidate were rejected by the learned Judge on the ground that threw were made by a highly interested party.
After having been taken through the judgment we are not satisfied that the learned Judge did anything more than to rather mechanically accept the oral and documentary evidence given to support the charge.
We certainly do not find there any consideration or discussion of a number of infirmities which have been placed before us both in the oral and documentary evidence adduced to support the, charge.
We think that this is so because the learned Judge seems to have held the view that a mere consideration of probabilities, without applying a strict standard of proof beyond reasonable doubt to a charge of corrupt practice was enough here.
589 After going through the evidence relating to the use of each truck, and repeating, rather mechanically, that this evidence on behalf of the petitioner was acceptable in each instance given, the learned Judge concluded "As a result of the discussion of the evidence under this issue, I hold that the returned candidate hired and used trucks Nos.
HRR 5155, HRR 5161, HRR 5077, HRR 5013, and HRR 597, for the free conveyance of electors to various polling stations and thus committed the corrupt practice defined in clause (5) of section 123 of the Act".
We find no indication anywhere in the judgment that the stricter standard of proof, which is applicable to such charges, was kept in view by the learned Judge.
The fifth ground of objection set out above seems to proceed on the erroneous assumption that oral testimony cannot be accepted when a corrupt practice is set up to assail an election unless it is corroborated by other kinds of evidence in material particulars.
We are not aware of any such general inflexible rule of law or practice which could justify a wholesale condemnation or rejection of a species of evidence which is legally admissible and can be acted upon under the provisions of Evidence Act in every type of case if it is, after proper scrutiny found to be reliable or worthy of acceptance.
There is no presumption, either in this country or anywhere else, that a witness, deposing on oath in the witless box, is untruthful unless he is shown to be, indubitably, speaking the truth.
On the other hand, the ordinary presumption is that a witness deposing solemnly on oath before a judicial.tribunal is a witness of truth unless the contrary is shown.
It is not required by our law of evidence that a witness must be proved to be a perjurer before his evidence is discarded.
It may be enough if his evidence appears to be quite improbable or to spring from such tainted or biased or dubious a source as to be unsafe to be acted upon without corroboration from evidence other than that of the witness himself.
The evidence of every witness in an election case cannot be dubbed as intrinsically suspect or defective.
It cannot be ,equated with that of an accomplice in a criminal case whose testimony has, according to a rule of practice, though not of law, to be corroborated in material particulars before it is relied upon.
This Court pointed out in Rahim Khan 's case (supra) that there are no golden rules for appraising human testimony.
In assessing its worth Judges can err honestly just as witness can make honestly mistaken statements under oath.
The extraction of what should constitute the credible foundation of judicially sound judgment is an art which nothing except sound common sense and prudence combined with experience can teach.
A sound judgment must disclose a fair attempt to "separate the grain from the chaff" as it has often been said.
Section 3 of the Evidence Act lays down: "A fact is said to be proved when after considering the matters before it, the Court either believes it to exist or con 590 siders its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".
Hence it has sometimes been argued that the same standard of proof applies to all types of cases.
Such a contention seems plausible.
But, what has to be borne in mind is that, in judging the evidence of a grave charge, prudence dictates that the belief in its correctness should form the basis of a judicial verdict of guilt only if that belief reaches a conviction beyond reasonable doubt.
If prudence is the real test, it prescribes differing standards of proof in differing circumstances.
Its requirements preclude any Procrustean a bed of uniformly rigid rules for each type of case.
The circumstances under which reasonable doubt may or may not exist in a case cannot possibly be exhaustively cataloged.
All that one can say is that in deciding whether the stricter standard of proof is satisfied in a case of alleged corrupt practice, resting upon oral evidence only, the Courts should be particularly astute and not omit to examine fairly the effect of every existing substantial ground which could introduce a reasonable doubt in a case.
In doing so, the Court has also to beware of bare suspicion, based on popular prejudices or belief sought to be introduced merely to bias the Court against a witness or a partly of a particular type.
In the case before us, we find that the learned Counsel for the appellant has repeatedly referred to the fact that the respondent, whose election petition succeeded before the learned Judge, was a defeated former Minister of the ruling Congress party.
Learned Counsel wanted us to infer that, because, the respondent had been welcomed and garlanded by the President of the Motor Truck Drivers ' Union of Ganaur,.
the evidence of motor drivers was easily available to him.
In other words, we were asked to assume that the motor drivers would be prepared to commit perjury, at the instance of the President of the Motor Truck Drivers ' Union, only to please a former defeated Minister.
We do not think that it is reasonable to carry such a suspicion to the extent of attributing to every witness appearing in support of the respondent 's case a tendency or desire to commit perjury.
The law does not discriminate against or frown upon a former Minister, belonging to any party, whether in or out of power, so that it must view every witness produced by him with suspicion simply because he had been a Minister.
On the other hand, we think that it would not be unreasonable to believe that a person who has occupied the responsible position of a Minister will be less inclined to suborn witnesses or conspire to produce perjured evidence just because he is defeated in an election which is not the only test of a person 's worth or respectability in society.
We think that a person who has held a responsible office will be acting imprudently if he spoils his public image by deliberately producing perjured evidence.
We are not prepared to uphold the 5th contention of the appellant that, either as a general rule.
in election cases, or on the facts of this particular case, the evidence of the motordrivers must be necessarily rejected simply because it is oral testimony of drivers of trucks who had formed a Union which had once invited 591 and garlanded the respondent.
We, however, think that the evidence had to be more carefully scrutinized than the High Court was disposed to do it.
As was Pointed out in Rahim Khan 's case (supra), evidence considered unsafe to be acted upon by a judicial Tribunal need not be necessarily false.
Turning to the 4th ground of objection, relating the prosecutions of truck drivers by the Police for alleged offenses said to have taken place on 11.3.1972, we find that the High Court accepted the allegation that the ' drivers were challenge on 11.3.
1972 without commenting on some conflicting evidence as to the date on which the motor drivers were challenge.
In reply, it has been contended that witnesses who could have given more, evidence on this question were not only given up by the petitioner respondent but also by the appellant as the date of challans was accepted or not questioned on behalf of the appellant.
Our attention is invited to Miscellaneous application No. 216 E/72 dated 19 10.1972 where learned Counsel for the appellant not merely stated that he did not want to examine either the Mohrir Constable of Police Station Ganaur or a Clerk of the office of the Superintendent of Police, Rohtak, but prayed that "the above two witnesses may kindly be informed telegraphically not to appear on 23.10.72".
It is, therefore, argued, not without force, that the date of the challans was not seriously disputed by the appellant before the High Court so that this question should not be allowed to be argued before us.
It was also contended on behalf of the respondent that there had been some tampering with the record in the Magistrate 's Court which explained the contrary evidence given by Subash Chander, P.W.11, the Ahalmad of a Magistrate 's Court, showing that the challan was dated 17 3 1972.
It was orally prayed that we should summon and examine, at this stage, the original record from the Court of the Magistrate, concerned.
However, as no argument appears to have been addressed on this question in the High Court we think that this as a matter which the High Court can and should itself examine after summoning the record from the Magistrate 's Court as we propose to send the case back to it for reconsideration after taking some further evidence.
It has been argued on behalf of the respondent that there is enough evidence of the motor truck drivers and of the voters carried as well as documentary evidence, including a log book of a driver, to show that the truck used on behalf of the respondent were carrying voters to the election booth, and were, therefore, challaned on 11 3 1972 because carrying of passengers in truck was not permitted.
It was admitted that no entry was made in the general diary of Ganaur Police Station, according to the rules, but this, it was contended for the respondent, is not conclusive as relevant entries relating to some 'petty offences are often missing.
These are, however, some of the matters which the High Court can and should consider.
It appears to us that a number of Points, on the worth of various tems of evidence, which have been raised for the 1st time to question 592 the authenticity.
of the evidence relating to the prosecution of drivers of trucks, said to have been carrying voters for the appellant were not advanced before the High Court.
We think that we ought to have the benefit of scrutiny of the whole evidence on this question by the High Court and its findings thereon.
We are not prepared to proceed on the assumption that the respondent could easily get evidence fabricated as he had been a minister.
We may now deal with the first three grounds of objection, all relating to what is called the Pukar Register.
It is true that Uggar Sain, P.W. 24, who was called to prove the Pukar Register, did not actually depose in %*hose handwriting the entries in it were made, or what could or could not be property entered here.
The trend of cross examination, however, shows that it proceeded on the assumption that Uggar Sain, P.W. 24, was actually making entries in it.
But, neither this fact was proved in the examination in chief nor was the course of business, according to which entries could be made in the Register, including entries of alleged payments by the respondent, proved.
A number of question raised before us,( throwing some suspicion on the authenticity of the entries in this Pukar Register and the dates on which they could be or were made seem to us to be entirely new.
They were not suggested to P.W. 24, Uggar Sain, who might have had some explanations for these suspicious features.
Nor do all these defects seem to have been mentioned in the course of arguments before the High Court.
For example, the truck numbers of trucks said to have been sent to the appellant do not appear against the name of the appellant but seem inserted afterwards above the place where they would be expected to be found.
The exact meaning or effect of such a feature could only have been brought out by cross examination of Uggar Sain, P.W. 24 on behalf of the appellant.
As regards the admissibility of the Pukar Register and evidence of prosecution of the truck drivers, we are unable to accept the submission that these are inadmissible under the Evidence Act.
Even though the course of business under which the Pukar Register was kept was not proved, we think that documents, such as the Pukar Register and those relating to the prosecutions of the drivers, who were said to be carrying voters on 11.
3. 1972, could be proved under section 11 of the Evidence Act.
We think that, in view of the importance of the evidence Uggar Sain, P.W. 24 both his examination in chief and his cross examination are must unsatisfactory.
We may here observe that the election Tribunal is not powerless in such cases in the performance of its duty to ascertain the truth.
There is not only Section 165 of the Evidence Act which enables the Court to put any question it likes to a witness,.
but there are also the provisions of order XVI, Rule 14, Civil Procedure Code which Jay down : "Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, 593 where the Court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document".
We think that the ascertainment of a number of essential facts relating to the charge was neither regular nor sufficiently detailed in the case now before us.
We find that the High Court proceeded on the assumption that facts which ought to have been technically proved had been sufficiently proved.
It too readily accepted the evidence, both oral and documentary, without examining all the defects of it which have been sought to be placed before us.
We are left with an unavoidable impression that important aspects of the case were neither satisfactorily brought out clearly by the evidence in the case nor examined by the High Court despite the voluminous evidence led by the parties and the lengthy judgment delivered by the Tribunal.
We also find that the Court adopted a standard of proof which is not strict enough in appraising the worth of evidence produced to support a charge of corrupt practice.
As it is not the practice of this Court to reassess evidence or to perform the duties of the Trial Court, even in election first appeals, unless no other course is left open to it, we think that this is a fit case in which we should send back the case for reconsideration by the High Court after recalling such witnesses as may be considered necessary by it, and, in particular, Uggar Sain, P.W. 24, so that at least the Pukar Register, assumed to have been duly proved, may be proved in accordance with law.
We think that the objections to the proof of this document, and of entries in it do not go beyond objections to the mode of proof.
The entries in it could be accepted as sufficiently reliable only after a much more rigorous examination of their maker than the parties or the Court subjected him to.
We think that we should not give a finding upon the reliability of these entries before the allegedly suspicious features have been specifically put to P.W. 24, Uggar Sain, who was assumed to have made the entries without even asking him whether he did make them.
In the result, we set aside the judgment and order of the High Court and we remand the case to it for disposal in accordance with law after abduction of such further evidence as may be necessary in the interests of justice.
In view of our order remanding the case to the High Court it is unnecessary to consider the three Civil Miscel 594 laneous Petitions for urging addition grounds, for condonation of delay in filing the application for urging additional grounds, and for permission to file a certified copy of the summary register for 21 3 1972 and 22 3 1972 of the Court 'of Judicial Magistrate 1st Class, Sonepat.
These applications are, therefore, dismissed.
Partics may, however, make appropriate applications in the High Court.
The costs of this litigation in the High Court as well as in this Court will abide the result.
The appellant will continue to function as an elected member subject to the result of the Election Petition.
P. B. R. Appeal allowed.
[/INST]The appellant.
an excise contractor secured the privilege of vending arrack in retail in certain taluks in the State of Karnataka for a period of 18 months beginning from 28 12 1967 and ending on 30 6 69.
He purchased attack from the Government at a price of 17 paise per litre and the Government collected besides the sale price of arrack.
excise duty.
health cess and education cess. 'rho Government also collected sales tax on the sale price of attacks on excise duty.
on health cess and on education cess for the period from 28 12 1967 to 31 1 1968 and made similar demands for the month of February.
1968 also.
The appellant and other excise contractors filed writ petitions in the High Court at Karnataka challenging the validity of the levy and collection of excise duty, education cess.
health cess and sales tax.
The High Court accepted some of the contentions of the appellant, granted him reliefs on that basis but rejected the other prayers.
The appellant has filed these appeals on the basis of certificates granted by the High Court against the order.
It was contended for the appellant (i) that no excise duty can be levied on a licensee in respect of the quantity of arrack purchased by him from Government depots, (ii) that the. power to fix the rate of excise duty conferred under section 22 of the Mysore Excise Act of 1965 on the Government was bad for the reason that it was an abdication by the state legislature of its essential legislative function and (iii) that no sales tax could be levied on the price for sale of arrack since section 19 of the Mysore Sales Tax Act, 1957 under which the tax was levied was beyond the legislative competence of the state legislature.
Rejecting the contentions and dismissing the appeals, HELD : (i) It is clear from the return filed before the High Court that the Government purchases arrack from the distillers and keeps it in the warehouses established or licensed under section 16 and that any removal of arrack after the purchase of the same will attract the liability to pay excise duty.
Section 23 provides that excise duty shall be levied on the excisable article issued from a warehouse also.
It cannot be said that a warehouse established or licensed under section 16(e) is not warehouse within the meaning of that expression in section 23.
[609G 610A] (ii) The High Court held that the preamble of the Act would serve as a guidance to fix the rates of excise duty.
It cannot be said with certainty that the preamble of the Act gives any guidance for fixing the rate of excise duty.
But that does not mean that the legislature here has no control over the delegate.
In this case, a. 71 of the Act which provides for the rule making power imposes the necessary check upon) the wide power given to the Government to fix the rate.
The laying of rules before the legislature provides control over delegated legislation.
Again the legislature may also retain its control over its delegate by exercising its power of repeal the power to fix the rate of excise duty conferred on the Government by section 22 is valid.
[ 6140E F; 614 E F] 608 Corporation of Calcutta & Anr.
vs Liberty Cinema, [1965] 2.
S.C R 477, Batwrsi Das vs State of Madhya Pradesh, ; , Municipal Board, Hapur vs Raghuvendra Kripal , Devi Dass Gopal Krishan vs State of Punjab, [1967] 3 S.C.R 557, Municipal Corporation of Delhi vs Birla Cotton Spinding and Weaving Mills, [1968] 3 S.C.R. 251, Sita Ram Bisliambhar Dayal vs State of U.P. ; , Minister of Health vs The King, , Institute of Patent Agents vs Joseph Lockwood, [1894] A.C. 347 and Cobb & Co. vs Kropp, , referred to.
(iii) Section 19 of the Karnataka Sales Tax Act.
makes it clear that notwithstanding anything contained in this Act of 1957, the Government shall in respect of any sale of goods effected by it be entitled to collect by way of tax any amount which a registered dealer effecting such sale would have been entitled to collect by way of tax under the Act.
The section is clear that the Government could collect the tax on the sale made by it as if it were a registered dealer, notwithstanding anything contained in section 2 or & 5.
The section itself creates a right in the State to recover and an obligation on the purchaser from the State to pay the amount.
Any imposition of liability or obligation in respect of sale or purchase of goods will be covered by Entry 54 of List II of the Seventh Schedule of the Constitution.
Section 19 is therefore, not ultra vires the powers of the legislature.
[615A C]
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<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) No. 7309 of 1986 From the Judgment and Order dated 16.4.1986 of the Punjab and Haryana High Court in Civil Revision No. 571 of 1986.
Harbans Lal and G.K. Bansal for the Petitioners.
The Order of the Court was delivered by VENKATARAMIAH, J.
The petitioners were plaintiffs.
They instituted a suit in a representative capacity under Order 1 rule 8 of the Code of Civil Procedure in the Court of the Additional Senior Sub Judge, Barnala for a declaration that they were the owners in posses 833 sion of the suit land along with some others, that the Gram Panchayat, Mehal Kalan, Tehsil Barnala, District Sangrur in the State of Punjab (hereinafter referred to as 'the Panchayat ') had no sort of right in the suit land and that the suit land had been wrongly shown as belonging to the Panchayat by the entries made in the revenue records which were not binding on the plaintiffs and for an injunction restraining the Panchayat from interfering their possession.
The Panchayat in the course of its written statement inter alia pleaded that the Court before which the suit had been instituted had no jurisdiction to try it by virtue of the provisions of section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (Punjab Act No. 18 of 1961) (hereinafter referred to as 'the Act ').
The trial court framed an issue relating to its jurisdiction and tried it as a preliminary issue.
It held that since the question involved in the suit was simply one of title to the suit land and it was not necessary to decide whether the suit land was shamlat deh or not and whether the land had validly vested in the Panchayat or not being shamlat deh, it had jurisdiction to try the suit.
Aggrieved by the said finding recorded by the trial court, the Panchayat filed a revision petition before the High Court of Punjab and Haryana in Civil Revision Petition No. 571 of 1986.
The learned Judge who heard the Revision petition came to the conclusion that the issues involved in the suit were not triable by a civil court by virtue of section 11 read with section 13 of the Act and accordingly he held that the suit was not maintainable before the civil court.
The plaintiffs have preferred this petition before this Court under Article 136 of the Constitution of India requesting the Court to grant leave to prefer an appeal against the decision of the High Court.
Section 2(g) of the Act defines the expression 'Shamlat deh ' as under: "2(g) 'shamlat deh ' includes (1) lands described in the revenue records as shamlat deh excluding abadi deh; (2) shamlat tikkas; (3) lands described in the revenue records as shamlat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the villages; 834 (4) lands used or reserved for the benefit of village community including streets lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gorah deh; and (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records: Provided that shamlat deh at least to the extent of twenty five per cent of the total area of the village does not exist in the village; . . . " The Act was amended by the Punjab Village Common Lands (Regulation) (Amendment) Act, 1976.
Section 7 of the above Amending Act substituted the original sections 11, 12 and 13 of the Act by new sections.
After the amendment sections 11, 12 and 13 read as follows: "11.
Decision of claims of right, title or interest in shamlat deh. (1) Any person claiming right, title or interest in any land vested or deemed to have been vested in a Panchayat under this Act, or claiming that any land has not so vested in a Panchayat, may submit to the Collector, within such time as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed.
(2) Any person or a Panchayat aggrieved by an order of the Collector made under sub section (1) may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may after hearing the appeal, confirm, very or reverse the order appealed from and may pass such order as he deems fit.
Finality of orders.
Save as otherwise expressly provided in this Act, every order made by the Collector or the Commissioner shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceedings.
835 13.
Bar of jurisdiction of civil courts.
No civil court shall have jurisdiction (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property or is not shamlat deh vested or deemed to have been vested in a Panchayat under this Act; or (b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat under this Act; or (c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine" Section 11 of the Act provides that any person claiming right, title or interest in any land vested or deemed to have been vested in a Panchayat under the Act, or claiming that any land has not so vested in a Panchayat, may submit to the Collector, within such time as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and that the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed.
Any person aggrieved by the decision of the Collector is entitled to prefer an appeal to the Commissioner.
Under section 12 of the Act every order made by the Collector or by the Commissioner, as the case may be is final save as otherwise expressly provided in the Act and such order cannot be called in question in any court by way of appeal or revision or in any original suit, application or execution proceedings.
Section 13 of the Act provides that no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or any interest in any property is or is not shamlat deh vested or deemed to have been vested in a Panchayat under the Act or to question the legality of any action taken by the Commissioner or the Collector or the Panchayat under the Act or in respect of any matter which the Commission or the Collector is empowered by or under the Act to determine.
The contention of the Panchayat before the trial court was that the land in question was shamlat deh and it had been vested in it.
It is no doubt true that the plaintiffs who claimed to be the owners along with some others of the suit land had avoided to seek a 836 declaration that the suit land was not shamlat deh.
They had, however, questioned the correctness of the entries in the revenue records which showed that the Panchayat was entitled to the suit land.
The plaintiffs cannot by drawing their plaint cleverly by not claiming a declaration that the land in question was not shamlat deh confer jurisdiction on the civil court when by virtue of section 13 of the Act the jurisdiction of civil courts to try such suits had been taken away.
In the instant case the suit had been filed against the Panchayat and the Panchayat had expressly claimed that the land in question belonged to it as shamlat deh.
It will not be possible in the circumstances for the civil court to make a declaration in favour of the plaintiffs without deciding the question whether the property in question was shamlat deh or not and whether it belonged to the Panchayat or not.
Reliance was however placed by the learned counsel for the petitioners on a decision of the Punjab and Haryana High Court in Bhagu and Ors., vs Ram Sarup and Ors., [1985] Punjab Law Journal Page 366 in which the suit had been held to be maintainable in a civil court even though the defendant had contended that the land involved in that suit was shamlat deh.
The High Court found that plaintiff in that case had only stated in the plaint that the land in question was 'Gali Sheh re aam ' or a throughfare belonging to the Gram Panchayat which was being used by the plaintiff as an approach to his house for about 30 years and had prayed for an injunction restraining the defendant from interfering with his right.
The Gram Panchayat in question had not been impleaded as a defendant.
The plaintiff in that case had not claimed that the suit land belonged to him or that it did not belong to the Gram Panchayat.
The crucial issue which had been framed in that case was whether the land in question over which the plaintiff had asserted his right was a street or not and whether the defendant had blocked the said street.
The High Court held in the circumstances of that suit that the jurisdiction of the civil court had not been taken away by virtue of section 13 read with sections 13A and 13B of the Act which had been inserted by the Haryana Legislature into the Act.
We are of the view that the above decision is clearly distinguishable from the present case since in this case the Panchayat which had been impleaded as a defendant had raised the plea that the suit land was a part of shamlat deh and that the plaintiffs had no right or title in it.
This question has to be decided by the Collector only under section 11 of the Act and not by the Civil court.
We do not, therefore, find any ground to interfere with the judgment of the High Court of Punjab and Haryana against which this petition is filed.
The petition is dismissed.
P.S.S. Petition dismissed.
[/INST]HELD: Having regard to the various aspects of the case and the important points of law which arise for considera tion the petition to revoke the special leave cannot be granted.
Further the special leave, was granted by the Court in the presence of the counsel for the respondents and after hearing his submissions.
The petition has not only culminat ed in criminal appeal but the very same counsel has made a request that the case should be referred to a Constitution Bench ' [92B, 91H]
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<s>[INST] Summarize the judgementAppeal No. 850 of 1974.
From the Judgment and Order dated 24.9.1973 of the Punjab and Haryana High Court in Income Tax Reference No. 21 of 1972.
S.T. Desai, M/s. J.B. Dadachanji, Harish Salve, P.K. Ram and Mrs. A.K. Verma for the appellant.
V.S. Desai, Gauri Shankar and Miss A. Subhashini for the respondent.
The Judgment of the Court was delivered by TULZAPUKAR, J.
This appeal raises the question of granting registration to the appellant firm (the assessee) under section 26 A of the Income Tax Act, 1922 for the Assessment Year 1961 62.
The taxing authorities, the Tribunal and the High Court have refused registration sought by the appellant firm and hence this appeal.
Prior to the Assessment Year 1961 62 the appellant firm was a partnership concern consisting of two partners, Shri Pal Singh and Shri Sadhu Singh, each having 50% share in the profits and losses of the firm and it was being granted registration.
It appears that the two partners met with an accident on 19.10.1958 in which Shri Pal Singh suffered a serious head injury and lost his memory for quite some time while Shri Sadhu Singh suffered an injury to the spinal cord which rendered him invalid for quite a long time and the case put forward was that as the business was on extensive scale and the two partners were physically handicapped (they recovered during the meantime) they entered into a fresh Deed of Partnership on 1.4.1960 by virtue of which Pal Singh and Sadhu 168 Singh of the one part and Sarvashri Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh of the second part became partners with the following share ratio in the profits and losses, namely, Pal Singh and Sadhu Singh the original two partners retained 25% share each while Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh were given 12 1/2% share each.
Admittedly two of the new incoming partners, namely Surjit Singh and Gulzar Singh were relate to Pal Singh being his son and brother respectively who were obviously accommodated within the 50% share originally owned by Shri Pal Singh while the other two incoming partners Hari Singh and Harbans Singh were related to Shri Sadhu Singh both being his brothers who were accommodated within the 50% share originally owned by Sadhu Singh.
Moreover, prior to April 1, 1960 Hari Singh and Harbans Singh were already working as employees in the original firm.
At this stage it will be convenient to indicate some of the salient clauses of the Partnership Deed entered into between the parties on 1.4.1960.
Under cl. 1 the partnership was declared to be one at will determinable by one month 's notice in writing and under cl. 3 the parties of the second part (i.e. the four new incoming partners) were not required to contribute any capital but the original two partners were to do so in equal shares.
Clause 4 provided that Shri Hari Singh and Shri Harbans Singh shall continue to draw their salaries or other remuneration from the firm as was being drawn by them along with any increment as agreed to by the parties of the first part (the original two partners) from time to time.
Clause 5 was significant as it provided that the four new incoming partners "shall not interfere in the management or the affairs or the accounts of the partnership business." Under clause 7 it was provided that none of the four new incoming partners shall sell, mortgage, hypothecate, gift or will away or alienate in any way whatsoever his share to any third person and that in case of need they shall alienate their shares in favour of the parties of the first part (the two original partners) only and not even to any one amongst them.
It was further provided that in case of a dispute among the partners regarding any of the clauses of the deed the decision of the partners of the first part (two original partners) shall be final and conclusive and binding and shall not be called into question in any court of law.
169 For the Assessment Year 1961 62 (the relevant accounting year in respect whereof ended on March 31, 1961) an application duly signed by all the partners seeking registration of the firm under sec.
26 A on the strength of the aforesaid Deed of Partnership was made on 15th September, 1960 and the original Partnership Deed was annexed thereto.
The four new incoming partners were examined by the I.T.O. and their statements were recorded which, the I.T.O. felt, clearly suggested that they were not real partners but dummies brought in to avoid the higher tax incidence.
After considering the several clauses contained in the partnership deed, the statement of the four new incoming partners and the surrounding circumstances including the fact that profits had not been shown to have been distributed in the books and no entries made in the year of account, the I.T.O. rejected the application principally on two grounds: (a) that in law no valid partnership had been created inasmuch as the element of mutual agency was lacking and (b) factually no genuine firm has come into existence inasmuch as the four new incoming partners were y dummies.
Registration was also refused on two other grounds, namely, there was a breach of the terms of the Partnership Deed in that, even in the absence of a provision in that ; behalf, salary and remuneration were credited in the personal r accounts of the two original partners Pal Singh and Sadhu Singh and there was non compliance of income tax rules.
In appeal preferred by the assessee the Appellate Assistant Commissioner after discussing the several issues at great length confirmed the I.T.O. 's order refusing registration.
In the further appeal preferred by the assessee to the Tribunal the view of the A.A.C. was confirmed by the Tribunal but in doing so the Tribunal expressed the view that four new incoming partners were benamidars of Shri Pal Singh and Shri Sadhu Singh.
At the instance of the assessee the following three questions were referred to the High Court for its opinion.
(1) Whether on the facts and in the circumstances of the case and on a true construction of the instrument of partnership dated 1st April 1960 a valid partnership came into existance? (2) Whether on the facts and in the circumstances of the case the assessee is entitled to registration under section 26 A of the Income Tax Act, 1922 read with Rule 6 of the Income Tax Rules, 1922? and 170 (3) Whether on the facts and in the circumstances of the case and in view of the fact that the parties of the second part have been found to be benamidars of the parties of the first part the assessee firm is entitled to the grant of regis tration? The High Court felt that the first question referred to it by the Tribunal did not bring into focus the real issue that arose between the parties and therefore the same was required to be recast or reframed and it reframed the question thus: Whether on the facts and in the circumstances of the case, and on true construction of the instrument of partnership dated 1st April, 1960 there is a genuine partnership, and whether the finding that there is no genuine partnership is based on evidence?" After considering the entire material on the record as also the rival contentions urged before it by counsel on the either side the High Court answered the first question in favour of the department and against the assessee, that is to say, it held that no genuine partnership had come into existence and that the finding of the lower authorities in that behalf was based on ample material on record.
The second question was also answered in the negative in favour of the department and against the assessee.
As regards the third question it was answered in favour of the assessee and it was held that the mere fact that the four new incoming partners were found to be benamidars of the two original partners could not be a proper ground for refusing registration.
However, in view of its answers to the first two questions particularly the first question as reframed refusal of registration was upheld by the High Court.
This refusal to grant registration for the assessment year 1961 62 has been challenged by the appellant firm (assessee) in this appeal and counsel for the assessee raised three or four contentions in that behalf.
On the aspect of the firm 's validity in law counsel contended that the view taken by the taxing authorities as well as the Tribunal that no valid partnership in law had come into existence for lack of mutual agency has proceeded on a misconstruction of section 4 of the Partnership Act as also clause 5 of the Partnership Deed in question; according to him so far as the element of mutual agency is concerned all that is required to constitute a valid firm under section 4 is that the business must be carried on by all 171 or any of them acting for all and therefore, if the control and management of the business of the firm was left by agreement between the parties in the hands of even one partner to be exercised by him on behalf of the others the legal requirement could be said to have been satisfied and clause 5 of the Partnership Deed in question vests such control and management with two partners (the two original partners) who would be acting on behalf of all and the mere exclusion of the four new incoming partners from such control and management cannot affect the validity of the firm and in this behalf counsel relied on a decision of this Court in K.D. Kamath and Co. vs C.I.T. Mysore, 82 I.T.R. 680.
In other words counsel urged that if clause 5 of the Deed is properly read it could not be said that there was any lack of the element of mutual agency.
On the aspect whether a genuine firm had come into existence or not counsel urged that the Tribunal had not recorded any clear finding but had merely proceeded on the basis that no valid firm in law had come into existence but the High Court went out of its way to deal with the question of genuineness of the appellant firm by recasting or reframing the first question referred to it, and recorded an adverse finding thereon which should not have been done by the High Court.
Counsel further pointed out that the Tribunal had erroneously taken the view that because four new incoming partners were benamidars registration could not be granted and he urged that the High Court, having reversed that view, ought to have held that the assessee was entitled to registration under section 26 A of the 1922 Act; and in this regard counsel pointed out that the position under the 1961 Act is different in view of the Explanation that has been inserted in section 185 of that Act but in the absence of any similar provision in the 1922 Act the position was well settled that a firm could not be denied registration merely because some of its partners were benamidars of others and in that behalf reliance was placed on a decision of this Court in C.I.T. Gujarat vs A.Abdual Rahir and Co. 55 I.T.R. 651.
Counsel further urged that undue emphasis was laid on the fact that profits of the previous year ending March 31, 1961 had not been divided or distributed among all the partners by making requisite entries in the books in the year of account and registration was wrongly refused on this basis, though profit and loss account and balance sheet worked out on loose sheets of papers (which were unsigned) had been submitted before the authorities; according to counsel it is not necessary that the requisite entries pertaining to such division or distribution of profits 172 (or losses, if any) should be made in the books in the selfsame year of account and statement prepared by way of profit and loss account and balance sheet for working out such distribution among the partners should have been regarded as sufficient evidence of actual division of profits and in this behalf counsel relied upon a decision of the Orissa High Court in Rao & Sons vs C.I.T. Bihar and Orissa, Further counsel pointed out that such division or distribution had been by making the relevant entries in the assessee 's books on the first day of the following year and books pertaining to the following year containing such entries were produced before us at the hearing.
In substance counsel 's contentions were that the refusal to grant registration to the extent that it was based on the ground that no valid partnership in law had come into existence was clearly unsustainable, that there was no evidence to justify the finding on the genuineness of the appellant firm and that the High Court having held that registration could not be refused merely on the ground that some of the partners were benamidars registration ought to have been granted to the assessee.
On the other hand counsel for the revenue supported the refusal of registration by contneding that even if a valid partnership in law could be said to have been brought into existence by executing the Deed in question it was open to the taxing authority to refuse registration on the ground that factually no genuine firm had come into existence inasmuch as the two grounds were quite distinct from each other and therefore assuming that some fault could be found with the finding of the lower authorities on the question of validity of the appellant firm in law the refusal to grant registration should not be interfered with as the adverse finding on the genuineness of the appellant firm, for which there was ample evidence on record, was sufficient to justify the order.
As regards the reframing of the first question counsel urged that it is well settled that it is open to the High Court to reframe or recast a question formulated by the Tribunal before answering it so as to being out the real issue between the parties and since in this case the question No. 1 as formulated by the Tribunal presumed or assumed the factual existence of the appellant firm (which were very much disputed before the taxing authorities) the High Court reframed it so as to bring into focus the real issue between the parties namely, whether a genuine firm had been constituted or not.
Further counsel for the revenue pointed out that the High Court had rightly observed that the Tribunal had, though in a circuitous 173 manner, taken the view that the appellant firm had not genuinely come into existence.
Counsel agreed that under the 1922 Act no provision similar to the Explanation to sec.
185 of the 1961 Act obtained and further fairly conceded that the fact that some members were benamidars of others in a firm could be no bar to the grant of registration as held in Abdul Rahim & Co. case (supra) but contended that the said aspect was not decisive of the matter and pointed out, as held that very decision, that notwithstanding the said fact the firm must be found to be otherwise genuine and therefore if the taxing authorities were to record an adverse finding on the factual genuineness of the firm registration could be refused.
On the point of actual division or distribution of profits counsel urged that the lower authorities were justified in not relying on loose sheets indicating the working of such distribution especially when the sheets were unsigned and hence unauthentic and the assessee cannot be allowed to fill the lacuna by producing books for the following year in the fifth Court.
On the aspect of the genuineness of the firm requisite for the grant of registration counsel relied upon two old decisions in Haji Ghulam Rasul Khuda Baksh vs C.I.T. Punjab, and Bafi Zabdul Gafoor and others vs C.I.T.C.P. & U.P., 7 I.T.R. 625 which have been subsequently followed in P.A. Raju Chettiar and Brothers vs C.I.T. Madras, and Hiranand Ramsukh vs C.I.T. Hyderabad, Counsel for the revenue therefore, pressed for the dismissal of the appeal.
On a consideration of the entire material on record and on giving our anxious thought to the rival submissions made by counsel on either side we are of the opinion that in the ultimate analysis the real controversy in the appeal centres round the question whether or not factually a genuine firm had come into existence for the Assessment Year 1961 62 as a result of the execution of the instrument of partnership on April 1, 1960 and whether for recording a negative finding thereon against the assessee as done by the lower authorities there was evidence on the record? This being the real issue which was not reflected in the first question formulated by the Tribunal the High Court in our view was justified in reframing that question.
It is true that the taxing authorities and the Tribunal did go into the question of the appellant firm 's validity in law but it cannot be disputed that the concept of a firm being valid in law is distinct from its factual genuineness and for the purpose of granting registration both the aspects are relevant and must be present and one without 174 the other will be insufficient.
In other words, even if a firm brought into existence by executing an instrument of partnership deed is shown to possess ail the legal attributes it would be open to the taxing authority to refuse registration if it were satisfied that no genuine firm has been constituted.
Moreover, some of the provisions contained in such instrument may not militate against the firm 's validity in law but these can be a pointer against its factual genuineness.
The instant case is clearly a case of that type.
For instance, Clause 5 of the Partnership Deed in question which vests the control and management of the partnership business in the original two partners and denies to the four new incoming partners any right in the management or the affairs of the accounts of the partnership business may not show lack of the element of mutual agency but surely has a vital bearing on the factual genuineness of the firm and read along with other provisions like Clauses 3, 6, 7 and 8 would go a long way to show that the four new incoming partners were not real partners but were dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new incoming partners were very close relatives of the two original partners and that two of them were working as employees in the erstwhile firm whose services as such were continued in the relevant year on existing remuneration with such increments as the two original partners may agree to give cannot be lost sight of.
In addition to these aspects the statements of the four new incoming partners that were recorded in November 1965 clearly show that they had signed the instrument mechanically without knowing or reading, much less after understanding the implications thereof as we shall indicate presently.
For instance, Hari Singh in his statement has stated that he was not aware of the profits of the firm in any of the three accounting years 1960 61, 1961 62 and 1962 63; he asserted that for the relevant year 1960 61 the profit and loss account and balance sheet were prepared in the books and he had inspected these statements which assertions are obviously false because admittedly no such profit and loss account nor balance sheet was drawn up in the books.
When asked as to whether Pal Singh and Sadhu Singh had consulted the incoming partners before the Deed was written out and executed he has emphatically given a negative answer and has added that they (original partners) called all four of them and asked them to sign the Deed which they did.
Harbans Singh 175 in his statement admitted that he used to do the work of painting but could not say how many factories the firm was running nor did he remember the factory in which he used to do his work; he further asserted that no witnesses were called when the Deed was signed which is obviously a false assertion.
Surjit Singh who passed his Intermediate Arts in September 1960, B.A. in 1963 and LL.B. in 1965 has shown utter ignorance of even the share ratio in the profit and loss of the new incoming partners; he stated that he had two annas share in the profits but no share in the losses; when questioned as to how he knew that losses were not to be shared by him he stated that when he was a student of law he was taught that losses should never be shared; he admitted that he had never read the deed which clearly shows that he mechanically signed the document without even attempting to know what he was signing; he was also ignorant of the fact whether he had withdrawn his share of profit in the first year of the partnership, i.e. 1960 61.
Gulzar Singh stated that he was called from the village and was asked to sign the document which he did without bothering to know its contents; in fact he admitted that he knew nothing about the matter.
These answers given by the four new incoming partners clearly go to show that they were not real partners but mere dummies and the Deed appears to have been executed merely as a cloak to secure registration and thereby reduce the tax incidence.
Counsel for the assesee made much of the fact that profit and loss account and balance sheet prepared on loose sheets of paper had been submitted before the ITO and according to him these were wrongly rejected on the ground that requisite entries in regard to division or distribution of profits had not been made in the books in the self same year of account, which counsel urged, was not necessary.
It must, however, be mentioned that the profit and loss account statement so prepared on a loose sheet did not contain any distribution of profits and or allocation thereof to each one of the new partners but such distribution or allocation was indicated on a loose paper on which the balance sheet was prepared but even that loose sheet was an unsigned piece of paper and therefore, being unauthentic was rightly rejected by the taxing authority.
An attempt was made by counsel during the hearing of the appeal to produce before us the books of account pertaining to the following year in which on the opening day entries showing distribution of the earlier years 's profit had been made.
But the late production of such books has deprived 176 the taxing authorities an opportunity to make their comments thereon.
Apart from this aspect the question would be whether even such entries were genuine entries intended to be acted upon or mere paper entries making a show of allocation of the share of profits due to each one of these four new incoming partners and this would require further investigation into relevant facts.
In this context it will not be out of place to mention that from their statements it appears clear that none has made any withdrawal towards his share of profit in any of the three years, 1960 61, 1961 62, 1962 63 and even after the partnership had alleged to have been dissolved after 31.3.1963 and at least one of them Hari Singh stated that a sum of Rs.73,600 became due to him as his share of profits till dissolution and in spite of demand nothing had been paid to him till his statement was recorded in November 1965.
Only two of them drew their remuneration as the employees.
Considering their economic position it is difficult to appreciate that they would have needed no withdrawal from their share of profits in any year till the alleged dissolution.
This aspect throws considerable doubt on the point whether or not entries were intended to be acted upon.
Having regard to the aforesaid discussion it is clear that there was sufficient material on record on the basis of which the taxing authorities as well as the Tribunal could record an adverse finding on the genuineness of the firm against the assessee and registration in our view was rightly refused.
We might observe that there was nothing wrong on the part of the High Court to have confirmed the refusal of registration to the appellant firm even after holding that the fact that some members were benamidars of others was no bar to the grant of registration.
In A. Abdul Rahim and Co. 's case (supra) on which counsel for the assessee relied, the Tribunal had held that one of the partners who had been inducted into the erstwhile partnership was a benamidar of one of the three original partners but had otherwise held that the partnership was genuine and valid and therefore, this Court took the view that the mere fact that one member was a benamidar of another as no bar to the grant of registration and directed registration but the ratio would be inapplicable to a case where the firm is otherwise held to be not a genuine one.
In the result the appeal fails and is dismissed with costs.
A.P.J. Appeal dismissed.
[/INST]Prior to the Assessment Year 1961 62 the appellant f1rm was a partnership concern consisting of two partners, each having 50% share in the profits and losses of the firm and it was granted registration.
Both the partners met with an accident on 19.10.1958 in which they suffered serious injuries and became invalid.
On 1.4.1960 a fresh Deed of Partnership was executed by virtue of which the two original partners retained 25% share each while the four new incoming partners were given 12.1/2% share each.
Prior to April 1,1960 two of the new incoming partners were already working as employees in the original firm.
The fresh Partnership Deed, inter alia, provided that the partnership was at will determinable by one month 's notice in writing.
For the Assessment Year 1961 62 an application duly signed by all the partners seeking registration of the firm under section 26A of the Income Tax Act 1922 on the strength of the fresh Partnership Deed was made on 15th September 1960 annexing therewith the original Partnership Deed.
The four new incoming partners were examined by the Income Tax Officer and their statements were recorded, which, the ITO felt, clearly suggested that they were not real partners but dummies brought in to avoid the higher tax incidence.
After considering the Partnership Deed, the statement of the four new incoming partners and the fact that profits had not been shown to have been distributed in the books and no entries made in the year of account, the ITO rejected the application and refused registration.
The view taken by the Income Tax Officer was confirmed by the Appellate Assistant Commissioner and by the Tribunal.
165 The Tribunal, however, was of the view that four new incoming partners were benmidars of the two original partners.
On Reference made to the High Court, the High Court felt that the first question referred to it did not bring into focus the real issue and, therefore, recast the same.
The High Court upholding the refusal of registration held: (1) that no genuine partnership had come into existence and that the finding of the lower authorities in that behalf was based on ample material on record; (2) that the assessee is not entitled to the registration under s.26A of the Income Tax Act, 1922 read with Rule 6 of the Income Tax Rules, 1922; and (3) that the mere fact that the four new incoming partners were found to be benamidars of the two original partners could not be a proper ground for refusing registration.
In the appeal to this Court on behalf of the appellant it was contended: (i) that refusal to grant registration to the extent that it was based on the ground that no valid partnership in law had come into existence was unsustainable; (ii) that there was no evidence to justify the finding on the genuineness of the appellant firm, and (iii) that the High Court having held that registration could not be refused merely on the ground that some of the partners were benamidars, registration ought to have been granted.
On behalf of the Revenue it was contended: (1) that even if a valid partnership in law came into existence by executing the Deed registration could be refused on the ground that factually no genuine firm had come into existence; (2) that it is open to the High Court to reframe or recast a question formulated by the Tribunal before answering it so as to bring out a real issue between the parties; (3) that the High Court had rightly affirmed the view of the Tribunal that the appellant firm had not genuinely come into existence; (4) that though under the 1922 Act no provision similar to the Explanation to Sec.185 of 1961 Act obtained and the fact that some members were benamidars of others in a firm could be no bar to the grant of registration, if the taxing authorities were to record an adverse finding on the factual genuineness of the firm registration could be refused; and (5) that so far as the actual division or distribution of profits, the lower authorities were justified in not relying on loose sheets indicating the working of the firm and the assessee cannot be allowed to fill the lacuna by producing books for the following year.
Dismissing the Appeal, 166 ^ HELD: 1.The concept of a firm being valid in law is distinct from the factual genuineness and for the purpose of granting registration both aspects are relevant and must be present and one without the other will be insufficient.
[l73 G] 2.
Even if a firm brought into existence by executing an instrument of partnership deed is shown to possess all the legal attributes it would be open to the taxing authority to refuse registration if it were satisfied that no genuine firm has been constituted.
Moreover, some of the provisions contained in such instrument may not militate against the firm 's validity in law but these can be a pointer against its factual genuineness.
[173 G H; 174 A] 3.
Clause 5 of the Partnership Deed in the instant case, vests the control and management of the partnership business in the original two partners and denies to the four new incoming partners any right in the management of the affairs or the accounts of the partnership business, may not show lack of the element of mutual agency but has a vital bearing on the factual genuineness of the firm and read along with Clauses 3,6,7 and 8 would go to show that the four new incoming partners were no real partners but were dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new incoming partners were very close relatives of the two original partners and that two of them were working as employees in the erstwhile firm whose service as such were continued in the relevant year on existing remuneration with such increments as the two original partners may agree to give cannot be lost sight of.
In addition, the statements of the four new incoming partners that were recorded in November 1965 clearly show that they had signed the instrument mechanically without knowing or reading, much less after understanding the implications thereof.
[174 A D] 4.
In the instant case, the profit and loss account statement prepared on loose sheet did not contain any distribution of profits and or allocation thereof to each one of the new partners.
[175 E] 5.
Production of account books in this Court has deprived the taxing authorities an opportunity to make their comments thereon.
Apart from this aspect the question would be whether even such entries were genuine entries intended to be acted upon or mere paper entries making a show of allocation 167 of the share of profits due to each one of these four new incoming partners and this would require further investigation into relevant facts.
This aspect throws considerable doubt on the point whether or not entries were intended to be acted upon.
[175 G H; 176 B] 6.
In the instant case, there was sufficient material on record on the basis of which the taxing authorities as well as the Tribunal could record an adverse finding on the genuineness of the firm against the assessee and registration was rightly refused.
[176 C]
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<s>[INST] Summarize the judgementAppeal No. 96 of 1957.
Appeal by special leave from the judgment and order dated December 17, 1956, of the Punjab High Court (Circuit Bench) at Delhi in Civil Misc.
No. 896 D of 1956, arising out of the judgment and order dated November 1, 1956, of the Court of Commercial Subordinate Judge, Delhi in Suit No. 264 of 1956 under Order XXXVII, C.P.C. ]A. V. Vishwanatha Sastri 'and Naunit Lal, for the appellant.
Bakhshi Gurcharan Singh and Sardar Singh, for the respondent.
February 5.
The following Judgment of the Court was delivered by BOSE J. The defendants, Santosh Kumar and the Northern General Agencies, were granted special leave to appeal.
The plaintiff filed the suit out of which the 1213 appeal arises on the basis of a cheque for Rs. 60,000 drawn by the defendants in favour of the plaintiff and which, on presentation to the Bank, was dishonoured.
The suit was filed in the Court of the Commercial Subordinate Judge, Delhi, under 0.
XXXVII of the Code of Civil Procedure.
The defendants applied for leave to defend the suit under r. 3 of that Order.
The learned trial Judge held that " the defence raised by the defendants raises a triable issue," but he went on to hold that the defendants " have not placed anything on the file to show that the defence was a bona fide one." Accordingly, he permitted the defendants to appear and defend the suit on the condition of their giving security to the extent of the suit amount and the costs of the suit.
" The defendants applied for a review but failed.
They then applied under article 227 of the Constitution to the Delhi Circuit Bench of the Punjab High Court and failed again.
As a result, they applied here under article 136 and were granted special leave.
At first blush, 0.
XXXVII, r. 2(2), appears drastically to curtail a litigant 's normal rights in a Court of justice, namely to appear and defend himself as of right, if and when sued, because it says that when a suit is instituted on a bill of exchange, hundi or a promissory note under the provisions of sub rule (1) ". . the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter provided so to appear and defend." But the rigour of that is softened by r. 3(1) which makes it obligatory on the Court to grant leave when the conditions set out there are fulfilled.
Clause (1) runs " The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
" 1214 But no sooner is the wide discretion given to the Court in r. 2(2) narrowed down by r. 3(1) than it is again enlarged in another direction by r. 3(2) which says that " Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
" The learned counsel for the plaintiff argues that the discretion so conferred by r. 3(2) is unfettered and that as the discretion has been exercised by the learned trial Judge, no appeal can lie against it unless there is a " grave miscarriage of justice or flagrant violation of law" and he quotes D. N. Banerji vs P.R. Mukherjee (1) and Waryam Singh vs Amarnath (2).
Now what we are examining here are laws of procedure.
The spirit in which questions about procedure are to be approached and the manner in which rules relating to them are to be interpreted are laid down in Sangrayn Singh vs Election Tribunal, Kotah, Bhurey Lal Baya (1).
" Now a code of procedure must be regarded as such.
It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a, thing designed to trip people up.
Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.
Of course, there must be exceptions and where they are clearly defined (1) ; , 305.
(2) ; (3)[1955] 2 S.C.R. 1, 8 9. 1215 they must be given effect to.
But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.
" Applied to the present case, these observations mean that though the Court is given a discretion it must be exercised along judicial lines, and that in turn means, in consonance with the principles of natural justice that form the foundations of our laws.
Those principles, so far as they touch the present matter, are well known and have been laid down and followed in numerous cases.
The decision most frequently referred to is a decision of the House of Lords in England where a similar rule prevails.
It is Jacobs vs Booth 's Distillery Company (1).
Judgment was delivered in 1901.
Their Lordships said that whenever the deferce raises a " triable issue", leave must be given, and later cases say that when that is the case it must be given unconditionally, otherwise the leave may be illusory.
See, for example, Powszechny Bank Zwiazkowy W. Polsce vs Paros (2), in England and Sundaram Chettiar vs Valli Ammal (3) in India.
Among other cases that adopt the " triable issue " test are Kiranmoyee Dassi vs J. Chatterjee and Gopala Rao vs Subba Rao (5).
The learned counsel for the plaintiff respondent relied on Gopala Rao vs Subba Rao (5), Manohar Lal vs Nanhe Mal (6), and Shib Karan Das vs Mohammed Sadiq (7).
All that we need say about them is that if the Court is of opinion that the defence is not bona fide, then it can impose conditions and is not tied down to refusing leave to defend.
We agree with Varadachariar J. in the Madras case that the Court has this third course open to it in a suitable case.
But it cannot reach the conclusion that the defence is not bona fide arbitrarily.
It is as much bound by judicial rules and judicial procedure in reaching a conclusion of this kind as in any other matter.
It is unnecessary (1) (2) (3) (1935) 1 (4) (5) A.I.R. (1936) Mad.246.
(6) A.I.R. 1938 Lah.
(7) A.I.R. 1936 Lah.
12l6 no examine the facts of those cases because they are not in appeal before us.
We are only concerned with the principle.
It is always undesirable, and indeed impossible, to lay down hard and fast rules in matters that affect discretion.
But it is necessary to understand the reason for a special procedure of this kind in order that the discretion may be properly exercised.
The object is explained in Kesavan vs South Indian Bank Ltd. (1), and is examined in greater detail in Sundaram Chettiar vs Valli Ammal (supra), to which we have just referred.
Taken by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of trade and commerce.
In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts.
Now, what is the position here? The defendants admitted execution of the cheque but pleaded that it was only given as collateral security for the price of goods which the plaintiff supplied to the defendants.
They said that those goods were paid for by cash payments made from time to time and by other cheques and that therefore the cheque in suit had served its end and should now be returned.
They set out the exact dates on which, according to them, the payments had been made and gave the numbers of the cheques.
This at once raised an issue of fact, the truth and good faith of which could only be tested by going into the evidence and, as we have pointed out, the learned trial Judge held that this defence did raise a triable issue.
But he held that it was not enough for the defendants to back up their assertions with an affidavit; they should also have produced writings and documents which they said were in their possession (1) I.L.R. 1217 and which they asserted would prove that the cheques and payments referred to in their defence were given in payment of the cheque in suit; and he said " In the absence of those documents, the defence of the defendants seems to be vague consisting of indefinite assertions. . . .
This is a surprising conclusion.
The facts given in the affidavit are clear and precise, the defence could hardly have been clearer.
We find it difficult to see how a defence that, on the face of it, is clear becomes vague simply because the evidence by which it is to be proved is not brought on file at the time the defence is put in.
The learned Judge has failed to see that the stage of proof can only come after the defendant has been allowed to enter an appearance and defend the suit, and that the nature of the defence has to be determined at the time when the affidavit is put in.
At that stage all that the Court has to determine is whether " if the facts alleged by the defendant are duly proved " they will afford a good, or even a plausible, answer to the plaintiff 's claim.
Once the Court is satisfied about that, leave cannot be withheld and no question about imposing conditions can arise; and once leave is granted, the normal procedure of a suit, so far as evidence and proof go, obtains.
The learned High Court Judge is also in error in thinking that even when the defence is a good and valid one, conditions can be imposed.
As we have explained, the power to impose conditions is only there to ensure that there will be a speedy trial.
If there is reason to believe that the defendant is trying to prolong the litigation and evade a speedy trial, then conditions can be imposed.
But that conclusion cannot be reached simply because the defendant does not adduce his evidence even before he is told that he may defend the action.
We do not wish to throw doubt on those decisions which decide that ordinarily an appeal will not be entertained against an exercise of discretion that has been exercised along sound judicial lines.
But if the 1218 discretion is exercised arbitrarily, or is based on a mis understanding of the principles that govern its exercise, then interference is called for if there has been a resultant failure of justice.
As we have said, the only ground given for concluding that the defence is not bona flde is that the defendant did not prove his assertions before he was allowed to put in his defence ; and there is an obvious failure of justice if judgment is entered against a man who, if he is allowed to prove his case, cannot but succeed.
Accordingly, interference is called for here.
The appeal is allowed.
We set aside the orders of the High Court and the learned trial Judge and remand the case to the first Court for trial of the issues raised by the defendants.
The costs of the appellants in this Court will be paid by the respondent who has failed here.
Appeal allowed.
[/INST]% Controversies relating to the seniority of the officers in the Indian Forest Service (I.F.S., for short) in this batch of cases from the States of Maharashtra, orissa and Uttar Pradesh, arose as asequal to three decisions of this Court in regard to the constitution of the Indian Forest Service, in Kraipak vs Union of India, AIR 1970 SC 150; Parvez Qadir vs Union of India, and Union of India vs Chothia, ; The Court had to consider in these cases the questions arising out of the selections made by the Special Selection Boards (S.S. Bs.) in place of the selections set aside by the Kraipak case above mentioned, and was concerned with the initial recruitment under section 4(1) of the I.F.S. (Recruitment) Rules, 1966.
The first selections by way of initial recruitments to the State cadres were made sometime in 1966 and 1967.
The Kraipak decision came in 1969.
In the meanwhile, in many of the States, the first selection had been made followed up by subsequent recruitments largely made on the basis of competitive examination under rule 4(2)(a) of the Recruitment Rules and a few also, by promotion under rule 4(2)(b).
As a result of the second (and third) selections made by the S.S.B., a number of officers in the respective State Forest Service (S.F.S.) had been given appointment in the IFS with effect from October 1, 1966, under rule 4(3A) and were placed in a position of higher seniority vis a vis the recruits direct recruits under rule 4(2).
The direct recruits were dissatisfied with this.
In the case of Uttar Pradesh, nine petitioners moved the High Court for relief, out of whom, eight direct recruits of 1968 and 1969 confirmed between 1969 and 1972 came up in appeal to this Court.
In this State, the initial recruitment was made in 1966 67 of 85 officers, 58 to the posts in the senior time scale and 27 to the posts in the junior time scale.
Subsequently, six persons were promoted under rule 4(2)(b) and 286 nine persons were recruited under rule 4(2)(a) of the Recruitment Rules.
the initial recruitment having been declared bad, a fresh S.S.B. was appointed and, on its recommendations, 104 persons were appointed to the service, 60 to senior scale posts and 44 to junior scale posts.
Again, in 1976, six more persons were added and thus 110 persons were taken in by way of initial recruitment as against 85 persons taken in the first selection.
The direct recruits were aggrieved by these selections.
Their case was rejected by the High Court.
In the case of Maharashtra, the first selection was made on 2.2.1967 of 57 officers, 36 for the senior time scale and 21 for the junior time scale.
This was set aside.
On July 13, 1971, at the second selection, 116 officers were found eligible but only 66 were considered suitable for appointment.
39 out of 51 eligible officers were found suitable for the senior scale, of whom, 35 were appointed immediately and four, later.
For junior scale 27 were found suitable, out of whom 23 were appointed initially and four, later.
All these 66 appointments were made w.e.f. t. tO. 1966.
Some persons, who had joined the State Forest Service in 1962 and had put in 4 years ' service as on 1.10.1966, and were thus eligible for consideration for junior scale posts, filed a writ petition in the High Court.
Their grievance was that the government had not considered all the officers who were eligible for the junior posts, as should have been done as laid down in the Chothia case aforementioned.
The High Court allowed the writ petitions.
Some of the respondents, comprising persons, who had been directly recruited under rule 4(2) between 1968 and 1970, appealed to this Court against the decision of the High Court.
In the case of Orissa, eight persons moved this Court by Writ Petitions.
They had joined the orissa State Forest Service as on 1.4.1962.
After two years ' training, they had been appointed Assistant Conservators of Forests on 1.4.1964.
By 1.4.1966, they had four years ' continuous service in the State Cadre.
They had become eligible for selection to junior scale posts in the l.
F.S. Two selections were made by way of initial recruitment, once in January, 1967, when 41 officers were selected, and, then, in 1972, 42 out of 82 eligible officers were selected.
The petitioners were taken into the I.F.S. under rule 4(2)(b) between 1975 and 1977.
The petitioners ' contention was that their names were not considered at all either at the first selection or at the second selection, and the selections were made by considering eligible officers in the order of seniority only to recruit 41 or 42 persons.
The government did not consider all the 82 eligible officers and select 34 out of them arranged in the order of preference, and this vitiated the selection, as 287 held in the Chothia case afore mentioned.
Dismissing the appeals from U.P. and Maharashtra subject to observations and allowing the Orissa writ petitions, and directing the Special Selection Board to redo the selections in the light of the principles set out, the Court, ^ HELD: The initial recruitment regulations clearly envisage that the Special Selection Board should consider the cases of all the officers in the State Forest Service who fulfil the conditions of eligibility and judge their suitability for appointment to posts in the service and prepare a list of such officers in the order of preference.
This selection was done by a Board, the constitution of which was found to be vitiated.
The logical consequence of this would be that the process of selection had to be redone by a validly appointed S.S.B., before which the range of selection was the same as was, or should have been, considered by the initial S.S.B. i.e. Out of those officers in the S.F.S. who were eligible as on 1.10.66.
However, there had been some changes subsequent to 1.10.66 in the C.R.S.
Of some of the officers pertaining to the period upto 1.
10.66, consequent on the representations for expunction or modification of the adverse remarks, and nobody could validly object to these persons also being considered since the case of an officers who has the adverse remark against him struck off or modified, is on the footing as if such adverse remark had not been there at all, or had been in the modified form from the beginning.
The decision in the Kraipak case necessitated a complete review of the first selection.
The subsequent selection Boards could not be compelled to restrict their adjudication regarding suitability to the same number of persons as the first Board had selected, so long as the same list of eligible officers and their records as on 1.10.1966 were considered.
[309D H; 310C D] The first proviso to rule 4(2) of the cadre Rules, only outlines the general principle that whoever has the power to do a particular thing, has also the power to exercise it from time to time, if needed.
The Central Government has the power to alter the strength and composition of the cadres at any time.
However, if the terms of the relevant rules are scruitinized, it will be seen that the strength and composition of the cadres have to be determined by regulations which have to be made by the Central Government in consultation with the State Government.
If the initial composition can be only drawn up in consultation with the State Government and by Regulations, it will not be permissible for the Central Government to modify or alter the same save in the same manner.
It is not possible to accept the contention of 288 the initial recruits that the mere appointment of an excess number of officers should be treated as an automatic expansion of the cadre strength and composition in exercise of the power available under rule 4(1).
[312D E; 313A B] These cases are concerned with a set of Regulations whose whole purpose is to fix the cadre strength.
It is also a provision in regard to an All lndia Service in regard to the constitution of which both the Central Government and the State Governments have a say.
The cadre strength could not be varied without amending the Regulations and schedule or without.
lt consulting the State Government concerned.
[313H;314A] The Cadre Regulations, read with the Cadre Rules, leave no doubt that the strength and composition referred to or prescribed therein, are of the entire cadre of the service in the State concerned and are not restricted to the recruitments made after the initial recruitment.
The total authorised strength referred to is the total number of officers, who, at any point of time, can man the posts in the cadre.
It could not have been the intention that the cadre should consist of an indefinite number of persons recruited by the S.S.B. from the S.F.S. supplemented by the number of officers referred to as the total authorised strength.
There is no difficulty in holding that the total strength of the cadre is to be counted by including the initial recruits and that all the eligible officers adjudged suitable cannot be recruited to the service in excess of the total authorised strength.
[314E F; 316B] The critical and difficult question in these appeals is not that appointments by way of initial recruitment were made in excess of the total authorised strength but that the government has failed to keep in mind the restrictions placed on the number of senior and junior posts in each cadre while making appointments.
The grievance of the appellants is that more recruitments have been made against the junior posts than is permissible under the respective schedule.
[316C E] The initial recruits are right in contending that the Cadre Regulations do not lay down any water tight classification of junior and senior posts in the manner contended for by the direct recruits.
It is true that the Cadre Regulations make a reference to seniors and junior posts, but this is not intended to be an essential element in the composition of the cadre.
The Cadre Rules do not indicate, in respect of some posts, whether they are to be considered as junior or senior, and they contain no definition of the words 'senior ' and 'junior ' posts.
It cannot be postulated that the entrants to the service will first enter on a junior 289 scale post and work their way upward.
All the rules show that an officer, being in the junior or senior time scale or on a junior post or senior post, depends upon various eventualities, and it is not possible to pin down any posts as senior or junior or any officer as on one of the two time scales.
The Court agreed with the initial recruits that the reference to junior and senior posts in the cadre should not be considered to be so rigid or integral a part of the cadre composition as to affect the validity of the appointments made m excess of a particular number.
[318B C; 319B C] One thing plain on the terms of the Regulations is that once a person is found to be eligible and is adjudged suitable for recruitment under the Initial Recruitment Regulations, he has to be taken into service as a part of the initial recruitment either immediately on 1.10.1966 or as and when the vacancies arise in the cadre.
It is necessary to remember that if the vacancies are in senior posts, they can be filled only by S.F.S. Officers with eight years ' continuous service, and exhypothesi such officers will not be available for at least four more years, and if the vacancies are of junior posts, they can be filled in only after a competitive examinations is held, which will take time.
The Court cannot accept the contention that officers of the S.F.S., who have been adjudged suitable by the S.S.B. should not be taken into the service merely because their number exceeds the number of posts available.
True, they cannot be appointed immediately but the consequence cannot be that they should be ignored and persons recruited under rule 4(2) given preference over them.
It is only rational to interpret the rules as laying down that all those officers of the S.F.S. with eight or four years ' experience, who are adjudged suitable for the service should be recruited to the service bef ore any recruitment can at all start under rule 4(2).
Whether all such persons are entitled to the back dating of their appointment to 1.10.1966 or not, they are certainly entitled to contend that their appointment should be given precedence over the appointments of the recruits under rule 4(2) of the Recruitment Rules.
In this view of the matter, the plea of the petitioners that they will get precedence over the surplus officers among the eligible cannot at all be accepted.
It is only right that persons should be adjudged on the basis of the correct C.R.S. Any.
Expunction or modification in the C.R.S.
Of a period naturally relates back to that period and no legitimate objection can be taken if the correct C.R.S are taken into account.
There was nothing wrong in the selections made by the Selection Board.
[319D E; 320D E; 321C E] Rule 4(3A) only places the fresh recruits in the same position as if they had been recruited in the first instance, i.e. on 1.10.1966 as indeed 290 they should have been, and thus involves no retrospective effect beyond the date of commencement of the Act.
It is also not 'correct to suggest that it prejudicially affects the direct recruits in any way.
The appellants acquire under the Rules no right to be in service until after the initial recruitment is over.
Under the Rules, they can rank only after the candidates who get in by way of initial recruitment.
The appellants cannot be aggrieved that those in service in the S.F.S. are found suitable for recruitment to the service and taken into service w.e.f. 1. 10.1966.
Those persons, even if not entitled to appointment as on 1. 10.1966, are entitled to be appointed as and when vacancies arise and must always be given a position of precedence over the recruits under Rule 4(2).
The direct recruits can hardly claim that they are prejudicially affected by the re making of the initial recruitment.
[323D G] So far as Orissa is concerned, all the 82 eligible officers had to be considered for initial recruitment, but the S.S.B. merely selected 42 officers and made an omnibus observation that the others were found unsuitable.
This, as explained Chothia 's case is not a proper compliance with the Rules, and so the selection has to be set aside with a direction that it should be re done properly.[324A B] There has been delay on the part of the petitioners in coming to this Court, but in view of the complicated nature of the issues involved, the petitioners should not be put out of the court on the ground of laches.
All the 82 eligible officers as on 1.10.66 should be considered and not merely some of them.
Their suitability should be adjudged.
If they are not found suitable, reasons should be given which the U.P.S.C. should be able to consider.
If they are found suitable, a list of such officers should be drawn up with ranking given to them in the order of preference for the consideration of the U.P.S.C.
Since this has not been done, the recruitments have to be set aside and the matter remanded with the direction that it should be finalised as per the Recruitment Rules and in the light of the judgment.
[324E G] If the Court had agreed with the direct recruits that there had been some invalidity or infirmity attached to the subsequent selections by way of initial recruitment, the Court would not have rejected the appeals on the ground that the Regulations cannot give rise to a cause of action.
There is no error in the procedure followed by the Government.
[327E] It is not the intention of the Court, nor can it be the result of dis 291 cussion, that the appointments of any officers recruited under rule 4(1) or 4(2) should be considered invalid.
All the officers selected will have to be adjusted, if necessary, by amending the Cadre Regulations.
The only result of the Court 's findings would be the re adjustment of the seniority with necessary and consequential effect on promotions in the service.
[327G] No merit in the appeals from U.P. and Maharashtra, Orissa writ petitions allowed, S.S.B. directed to re do the selections in the light of the principles set out in the judgment.[328A B] Kraipak vs Union of India, AIR 1970, SC 150; Parvez Qadir vs Union of India, ; ; Union of India vs Chothia; , ; Jagat Narain vs Union, CMWP 58 of 1968; Lila Gupta vs Lakshmi Narain, ; at 932; Atlas Cycle Industries Ltd. vs State of Haryana, ; at 1076, 1084, 1085; G.S. Lamba vs Union of India, at 1032; Kapur vs Union of India, ; Union of India vs Harnek Singh, L.P.A. 406/83, decided by the Punjab & Haryana High Court on 20.9.1983; Inderjit Singh vs Union of India, ; Amrik Singh and Ors.
vs Union of India & Ors.
, and R.R. Verma and Ors.
vs The Union of India & Ors., , referred to.
</s>
|
<s>[INST] Summarize the judgementAppeal No. 2134 of 1970.
Appeal by special leave from the judgment and order dated March 5, 1970 of the Madhya Pradesh High Court in (Indore Bench) in Second Appeal No. 618 of 1964.
K. Rajendra Chowdhry, for the appellant.
P. C. Bhartari, D. N. Mishra and J.
B. Dadachanji, for, respondent No. 1. 302 The Judgment of the Court was delivered by BEG, J. This is a Defendant 's appeal by Special Leave against the judgment and decree of the High Court of Madhya Pradesh allowing a second appeal in a partition suit between members of a family governed by Muslim law.
The Defendant Appellant and the Plaintiff Respondent are both sons of Kadir Ali Bohra who died on 5 4 1952 leaving behind five sons, a daughter and his widow as his heirs.
It appears that Kadir Ali had incurred debts so heavily that all his property would have been swallowed up to liquidate these.
Three of his sons, namely, Ghulam Abbas, Defendant No. 1, Abdullah, Defendant No. 2, and Imdad, Defendant No. 3, who had prospered, came to his rescue so that the property may be saved.
But, apparently, they paid up the debts only in order to get the properties for themselves to the exclusion of the other two sons, namely, Kayyumali, Plaintiff Respondent, and Nazarali, Defendant No. 4, who executed, on 10 10 1942, deeds acknowledging receipt of some cash and moveable properties as consideration for not claiming any rights in future in the properties mentioned in the deeds in which they gave up their possible rights in future.
The executant of each deed said : "I have accordingly taken the ' things mentioned above as the equivalent of my share and I have out of free will written this.
I have no claim in the properties hereafter and if I put up a claim in future to any of the properties I shall be proved false by this document.
I shall have no objection to my father giving any of the properties to my other brothers. .".
During the father 's life time, when all chance or expectation of inheritance by either Kayyumali or Nazarali could be destroyed by disposition of property, neither of these two raised his little finger to object.
The only question before us now is whether the Plaintiff and Defendant No. 4 are estopped by their declarations and conduct and silence from claiming their shares in the properties covered by these deeds.
The first Appellate Court, the final court on questions of fact, recorded the following findings, after examining the, whole set of facts before it, to conclude that the plaintiff and defendant No. 4 were estopped from claiming their shares in the inheritance "In the instant case, it is evident that the release deeds exhibit
D/2 and exhibit
D/3 were executed by the plaintiff and defendant No. 4, Nazarali, when the defendants NO. 1, 2 and 3 had with their labour and money straightened the status of his father Kadar Ali and had cleared up the debts which would have devoured the, 303 whole property of Kadar Ali and the plaintiff was doing nothing and was in a way a burden to his father.
In such state of things when the plaintiff and defendant No. 4 executed the release deeds in question, it can be said that it was a family settlement to prevent the future disputes that may arise and to secure the peace and happiness in the family of the parties and thereby induced the defendants No. 1, 2 and 3 to believe that the plaintiff would not claim a share in the suit properties and led them to discharge the debts due to Kadar All and to be in affluent circumstances themselves as they are at present and the plaintiff now seeks benefit of it against his own past undertakings".
The High Court reproduced the passage, quoted above, from the judgment of the First Appellate Court, without any dissent from any of the findings of fact contained there.
It specifically held that the Court below was correct in finding that consideration had passed the Plaintiff and Defendant No. 4 for the relinquishment of their future possible rights of inheritance.
It proceeded on the assumption that, it the law had not prohibited the transfer of his right of inheritance by a Muslim heir, an estoppel would have operated against the Plaintiff and Defendant No. 4 on the findings given.
It held that the rule.
of Muslim Personal law on the subject has the same effect as Section 6(a) of the Transfer of Property Act which lays down: "The chance of an heir apparent succeeding to an" estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
It pointed out that, although, Section 2 of the Transfer of Property Act provided that nothing in the second Chapter of the, Act will be deemed to affect any rule of Mahomedan Law, so that section 6(a) contained in Chapter 2 could not really be applied, yet, the effect of Mahomedan Law itself was that the chance of a Mahomedan heir apparent succeeding to an estate cannot be the subject of a valid transfer or lease" (See : Mulla 's Principles of Mahomedan Law 17th Edn.
ss 54, page 45).
After equating the effect of the.
rule of Mahomed an Law with that of Section 6(a) of the Transfer of Property Act, the High Court applied the principle that no estoppel can arise against statute to what it considered to be an estoppel put forward against a rule of Mahomedan law.
The High Court had relied on a decision of the Madras High ' Court in Abdul Kafoor vs Abdul Razack(l), which had been (1) A.I.R. 1959 Mad.
p. 131.
304 followed by the Kerala High Court without giving fresh reason in Valanhivil Kunchi vs Kengayil Pattikavil Kunbi Avulla(1) in preference to the view adopted by the Allahabad High Court in Latafat Hussain vs Hidayat Hussain(2) followed by the, Travancore Cochin High Court in Kochunni Kachu Muhammed vs Kunj Pillai Muhammed(3) The principal question for decision before us is whether the Madras or the Allahabad High Court view is correct.
The Madras High Court, in Abdul Kapoor 's case (supra) had specifically dissented from the Allahabad view in Latafat Hussain ' case (supra) on the ground that, if an estoppel was allowed to pleaded as a defence, on the strength of relinquishment of a spes successionis for consideration, the effect could be to permit the pro visions of Mahomedan Law to be defeated.
Hence, it held that such an attempt would be struck by section 23 of the Indian Con tract Act.
The object however, of the rule of Mahomedan law which does not recognise a purported transfer of a spes succession is as a legally valid transfer at all, is not to prohibit anything but only to make it clear what is and what is not a transferable right or interest in property just as this is what section 6(a) of Transfer of Property Act is meant to do.
Its purpose could not be to protect those who receive consideration for what they do not immediately have so as to be able to transfer it at all.
It could, if protection of any party to a transaction could possibly underlie such a rule, be more the protection of possible transfers so that they may know what is and what is not a legally enforceable transfer.
With due respect, we are unable to concur with the view of the Madras High Court that renunciation of an expectancy, as a purported but legally ineffective transfer, is struck by Section 23 of the Indian Contract Act.
As it would be void as a transfer at all there was no need to rely on Section 23 Contract Act, If there was no "transfer".
of property at all, which was the correct position but a simple contract, which could only operate in future, it was certainly, not intended to bring about an immediate transfer which was all that the rule of Muslim law invalidated.
The real question was whether quite apart from any transfer or contract, the declarations in the deeds of purported relinquishment and receipt of valuable consideration could not be parts of a course of conduct over a number of years which, taken as a whole, created a, bar against a successful assertion of a right to property when that Tight actually came ' into being.
An equitable estoppel operates, if its elements are established, as a rule of evidence preventing the assertion of rights which may otherwise exist.
(1) A.F.R. 1964 Kerala P. 200 (2) A I R. 1936 All. 573.
(3) A.I.R. 1956 Travancore 217.
305 High Court in Asa Beevi vs Karuppan(1) where Macnaghten 's "Principles and Precedents of Moohumudan Law", Sir Roland Wilson 's Digest of Anglo Mohhamadan Law" P. 260, and Ameer Ali 's "Mohommedan Law" (Vol.
II, third edition, p. 50 51), and Tyabji 's "Muslim Law" have been referred to in support of the conclusion that ",here is a large preponderance of authority in favour of the view that a transfer or renuniciation of the right of inheritance before that right vests is prohibited under the Mahomedan Law".
The whole discussion of the principle in the body of the judgment, however brings out that the real reason is not a prohibition but that there cannot be a renunciation of a right which is incohate or incomplete so long as it remains in that state.
In fact, it is not correct to speak of any right of inheritance before it arises by the death of the predecessor who could have, during his life time, deprived the prospective heir of his expectation entirely by dispositions inter vivos.
Sir Roland Wilson, in his "Anglo Mohhamadan Law" (P 260, paragraph 208) states the position thus : "For the sake of those, readers Who are familiar with the joint ownership of father and son according to the most widely prevalent school of Hindu Law, it is perhaps desirable to state explicitly that in Muhammadan, as in Roman and English Law, nemo est heres viventis a living person has, no heir.
An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession; see Abdul Wahid, L.R. 12 I.A., 91, and All., 456 (1885) which was followed in Hasan Ali, 1 1 All. 456 (1889).
The converse is also true : a renunciation by an expectant heir in the lifetime of his ancestor is not valid, or enforceable against him after the vesting of the inheritance".
This is a correct statement, so far as it goes, of the law, because a bare renunciation of an expectation to inherit not bind the expectant heir 's conduct in future.
But if the expectant heir goes further and receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him other words, the principle, of estoppel remains untouched by this statement.
As the Madras Full Bench pointed out, the subject was dis cussed more fully, in Ameer Ali 's "Mohammedan Law" (Vol. 11), than elsewhere.
There we find the reason for or the object underlying the rule.
It is that there is nothing to renounce in such a case because an expectancy remains at most before it has mate (1) [1918] (41 Madras) I.L.R. 365.
306 rialized only an "incohate right".
It is in this light that the following observations in Hurmoot Ool Nisa Begum vs Allehdia Khan,(`) is explained by Ameer Ali : "According to the Mahomedan Law the right of inheritance may be renounced and such renunciation need not be express but may be implied from the ceasing or desisting from prosecuting a claim maintainable against another.
" Ameer Ali explained, citing an opinion of the law officers, given in Khanum Jan vs Jan Bibi; (2 .lm15 "Renunciation implies the yielding up of a right already vested, or the ceasing or desisting from prosecuting a claim maintainable against another.
It is evident that, during the life time of the mother the daughters have no right of inheritance and their claim on that account is not maintainable against any person during her life time.
It follows, therefore, that this renunciation during the mother 's life time of the daughters ' shares is null and void it being in point of fact giving up that which had no existence.
" In view of the clear exposition of the reason for the rule contained in the authorities relied upon by the Full Bench of the Madras High Court in Asa Beevi 's case (supra), we think that it described, by oversight, a rule based on the disability of a person to transfer what he has not got as a rule of prohibition enjoined by Mohamedan Law.
The use of the word "prohibited" by the Full Bench does not really bring out the object or character of the rule as explained above.
It may be mentioned here that Muslim Jurisprudence, where theology and moral concepts are found sometimes mingled with secular utilitarian legal principles, contains a very elaborate theory of acts which are good (because they proceed from 'hasna '), those which are bad (because, they exhibit "qubuh"), and those which are neutral per se.
It classifies them according to 'varying degrees of approval or disapproval attached to them (see Abdur Rahim 's "Muhammadan Jurisprudence" P. 105).
The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered "prohibited".
The binding force in 'future of such a renunciation would, even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part.
I In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim law will be found, on investigation, to be completely in consonance with it.
(1) [1871] 17 W.R.P.C. 108 (2) [1827] 4 S.D.A. Rep. 210.
307 As already indicated, while the Madras view is based upon the erroneous assumption that a renunciation of a claim to inherit in future is in itself illegal or prohibited by Muslim law, the view of the Allahabad High Court, expressed by Suleman, C.J., in Latafat Hussain 's case (supra) while fully recognising that "under the Mahomedan law relinquishment by an heir who has no interest in the life time of his ancestor is invalid and void", correctly lays down that such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued.
After considering several decisions, including the Full Bench of, the Madras High Court in Asa Beevi 's case (supra) Suleman, C.J., observed at page 575 : "The question of estoppel is really a question arising, under the Contract Act and the Evidence Act, and is not a question strictly arising under the Mahomedan Law.
" He pointed out (at page 575 576) "It has been held in this Court that contingent reversioners can enter into a contract for consideration which may be held binding on them in case they actually succeed to the, estate : See , and It was pointed out in , at PP.
876 7, that although a reversionary right cannot be the subject of a transfer, for such a transfer is prohibited by section 6, T.P. Act, there was.
nothing to prevent a re versioner from so acting as to estop himself by his own ,conduct from subsequently claiming a property to which he may succeed.
Among other cases reliance was placed on the pronouncement of their Lordships of the Privy Council in 40 All 487, where a reversioner was held bound by a compromise to which he was a party.
" Incidentally, we may observe that, in Mohammad Ali.
Khan vs Bisar Ali Khan,(1) the Oudh Chief Court has relied upon Hurmoot Ool Nisa Begum 'section case (supra) to hold that "according to Mahomedan Law there may be renunciation of the right to inheritance and such renunciation need not be express but may be implied from the ceasing or desisting from prosecuting a ,claim maintainable against another".
As we are clearly of opinion that there is nothing in law to bar the application of the principle of estoppel, contained in Section 115 of the Evidence Act, against the plaintiff and (1) A.I.R. 1928 Oudh 67.
308 Defendant No. 4, upon the totality of facts found by the final Court of facts, which were apparently accepted by the High Court,, it is not necessary for us to deal at length with the question whether the facts found could give rise to the inference of a "family settlement" in a technical sense.
It is true that in Latafat Hussain 's case (supra) Suleman, C.J., had observed that the conclusion of the Subordinate Court, that there had been an arrangement between a husband and a wife "in the nature of a family settlement which is binding on the plaintiff", was correct.
This was held upon circumstances which indicated that a husband would not have executed a deed of Wakf if the wife had not relinquished her claim, to inheritance.
In other words, an arrangement which may avoid future disputes in the family, even though it may not technically be a settlement or definition of actually disputed claims, was referred to broadly as a "family arrangement".
It was in this wide sense that in the case before us also, the first Appellate Court had considered the whole set of facts and circumstances examined by it to be sufficient to raise the inference of what it described as a "family settlement".
As our law relating to family arrangements is based on English law, we may refer here to a definition of a family arrangement in Halsbury 's Laws of England, (1) where we find: A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
We also find there : The agreement may be implied from a long course of ,dealing, 'but it is more usual to embody or to effectuate the against in a deed no which the term 'family arrangement ' is :applied.
" It is ,pointed out there : "Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.
" As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No. 4 were estopped by their conduct, on an application of Section 115 Evidence Act, from claiming any Tight to inheritance which accrued to them, on their father 's death, covered by the deeds of relinquishment for consideration, irrespective of the question whether the, deeds could operate as legally valid and effective surrenders of their spes successionis.
Upon the facts and circumstances in (1) Halsbury 's Laws of England, 3rd.
17, p. 215,216.
309 the case found by the courts ,below we hold that the plaintiff and defendant No. 4 could not, when rights of inheritance vested in them at the time of their father 's death, claim, these as such a claim would be barred by estoppel.
The result is that we allow this appeal, set aside the judg ment and the decree of the High Court, and restore that of the first Appellate Court.
In the circumstances of this case, we order that the parties will bear their own costs.
K.B.N. Appeal allowed.
[/INST]The Food Inspector purchased 1 1/2 seers of Shakkar from the appellant after paying its price.
He divided the sample into three parts, gave one to the appellant and retained the other two with him.
One of the samples retained ' was sent to the Public Analyst for examination.
The Public Analyst found it to be adulterated because of excess of extraneous matter.
The food Inspector filed a complaint before the Magistrate who convicted the appellant 'for an offence under section 16 read with section 7 of the .
In appeal the Sessions Judge acquitted the appellant but in further appeal to High Court the appellant was again convicted.
He appealed to this Court by special leave.
The contentions on behalf of the appellant were : (i) that Shakkar is not jaggery and since no standard of quality has been prescribed for Shakkar under the rules framed under the Act the Shakkar was not adulterated; (ii) that he had not kept the Shakkar for sale but for manufacturing Rab out of it and therefore the convicion under section 16 read with section 7 of The Act was bad.
HELD : (i) Shakkar is a product obtained by following processing juce pressed from out of sugar cane and therefore in view of the definition of jaggery in para A.07.05 of Appendix B of the rules framed under the Act Shakkar is jaggery.
In Chambers 20th Century Dictionary (revised edition) also the Hindi equivalent of jaggery given as Shakkar.
Therefore the finding of the High Court on the basis of the report of the Analyst that the Shakkar did not conform to the standard of quality prescribed for jaggery and was thus adulterated was correct and had to be maintained.
[353 B F] (2) The finding of the High Court was that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article of food after mixing Shelkhari in it.
There was no reason to think that the finding was wrong.
But assuming that the finding was wrong and that the appellant kept the Shakkar not for sale, but for manufacturing Rab out of it, the appellant would still be guilty.
If Shakkar is an article of food, it does not matter whether the appellant kept it, for sale or for manufacturing Rab out of it provided the appellant bad sold it.
And a sale to the Food Inspector is a sale for the purpose of 16(1) of the Act.
[C D] The Food Inspector, Calicut Corporation v, Charukanttil Gopalan and another, , followed and applied.
The appeal must accordingly be dismissed.
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<s>[INST] Summarize the judgement126 of 1958.
Petition under Article 32 of the Constitution of India, for enforcement of Fundamental Rights.
N. C. Chatterjee and B. V. section Mani, for the petitioners.
B. Sen and R. H. Dhebar, for the respondent.
November 20.
The Judgment of the Court was delivered by DAS GUPTA J.
The petitioners who describe them selves as Road side Station Masters challenge in this petition under article 32 of the Constitution the constitutionality of the channel of promotion for Guards to higher grade Station Masters ' posts as notified in the issue of the Central Railway 'Weekly Gazette No. 3 dated November 23, 1951.
Under this Notification Guards have two lines of promotion open to them.
One is that by promotion, C grade Guards may become B grade Guards on Rs. 100 185 and thereafter by further promotion A grade Guaids on Rs. 150 225.
The second line of promotion open to them is that by an examination described curiously enough as Slip 45 examination C grade Guards are eligible for promotion to posts of Station Masters on RS.
150 225 scale and thereafter to all the further promotions that are open to the Station Masters, viz., higher ,cales of Rs. 200 to Rs. 300, Rs. 260 to Rs. 350, Rs. 300 to Rs. 400 and finally Rs. 360 to Rs. 500; B grade Guards and A grade Guards are also on passing Slip 45 examination eligible for promotion to posts of Station Masters on Rs. 200 300 pay scale and thereafter to further promotions to the higher scales in the Station Masters ' line.
The Road side Station Masters on pay scale of Rs. 80 to Rs. 170 313 (the scale was formerly Rs. 64 170) can also reach by promotion the grade of Rs. 150 225 but only after going through an intermediate stage of Rs. 100 185.
Similarly Station Masters on Rs. 100 185 scale may also reach the stage of Rs. 200 300 but only after passing through the intermediate stage of Rs. 150 225.
Obviously the provisions enabling Guards to become Station Masters on the pay scale of Rs. 150 225 places the Station Masters of Rs. 80 170 scale at a disadvantage as against Guards on that pay scale and also puts the Road side Station Masters on the pay of Rs. 100 185 pay scale at a disadvantage as against Guards on that scale of pay.
The petitioners contend that the channel of promotion in so far as it enables Guards to be promoted as Station Masters in addition to the other line of promotion open to them as Guards amounts to a denial of equal opportunity as between Road side Station Masters and Guards in the matter of promotion and thus contravenes the provisions of article 16(1) of the Constitution.
It was further alleged in the petition that taking advantage of this channel of promotion, Guards become Station Masters on Rs. 150 225 at a very much younger age than Road side Station Masters and thus block the chances of higher promotion to Road side Station Masters who reach the Rs. 150 225 scale when they are much older.
As instances of how the impugned provisions in the channel of promotion are harmful to the Road side Station Masters, the petitioners state: that while the petitioner No. 2 even after completing 32 years of service has remained in the grade of Rs. 100 185 as Station Master, Guards of equal status and standing have reached gazetted rank within the same period of service; that whereas the petitioner No, 3 has come by promotion to the grade of Rs. 150225 after putting in 21 years of service, Guards of his standing have risen to the grade of Rs. 360 500 by virtue of the impugned channel of promotion and several of his juniors who entered the Railway service long after him as Guards have superseded him and are working in the grade of Rs. 360 500; that while the 314 petitioner No. 4 having entered into service as Telegraph Candidate and having passed all the requisite examinations prescribed for the higher grade of Station Master within a period of 2 1/2 years after putting in 6 1/2 years of service is still in the grade of Rs. 80 170, Guards of his length of service and departmental qualification are entitled for promotion as an Assistant Station Master in the grade of Rs. 150 225 within about the same length of service.
The respondents the General Manager, Central Railways, Bombay, V.T., the Chairman Railway Board, New Delhi and the Union of India, who contest the application contend that the channel of promotion providing these opportunities to Guards does not in any way contravene the provisions of article 16(1) of the Constitution.
They also deny the correctness of the allegation that as a result of these opportunities Guards become Station Masters on Rs. 150 225 pay scale at a Younger age than Road side Station Masters.
On the material before us it is not possible to come to a firm conclusion as regards the relative age at which Guards or Road side Station Masters ordinarily reach the pay scale of Rs. 150 225.
Assuming, however, the position to be as stated in the petition, that may only evoke some sympathy for the Road side Station Masters, but does not in any way affect the decision of the question whether article 16(1) of the Constitution is contravened by this channel of promotion.
article 16(1) of the Constitution is in these words: There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State '.
" The impugned provisions of the channel of promotion are in respect of promotion of persons already employed under the State and not in respect of the first employment under the State.
If the "equality of opportunity " guaranteed to all citizens by article 16(1) does not extend to matters of promotion the petitioners ' contention that the provisions are void must fail at once.
If, however, matters of promotion are 315 also " matters relating to employment" within the meaning of article 16(1) of the Constitution, the next question we have to consider is whether the impugned provisions amount to denial of equality of opportunity within the meaning of that Article.
We propose to consider the second question first, on the assumption that matters of promotion are Cc matters relating to employment ".
So multifarious are the activities of the State that employment of men for the purpose of these activities has by the very nature of things to be in different departments of the State and inside each department, in many different classes.
For each such class there are separate rules fixing the number of personnel of each class, posts to which the men in that class will be appointed, questions of seniority, pay of different posts, the manner in which promotion will be, effected from the lower grades of pay to the higher grades, e.g., whether on the result of periodical examination or 'by seniority, or by selection or on some other basis and other cognate matters.
Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of recruitment, pay and prospects and other conditions of service which may vary considerably between one class and another.
A member joins a particular class on recruitment; he leaves the class on retirement or death or dismissal, discharge, resignation or other modes of termination of service, or by joining another class of employees whether by promotion thereto or direct recruitment thereto on passing some examination or by selection in some other mode.
It is clear that as between the members of the same class the question whether conditions of service are the same or not may well arise.
If they are not, the question of denial of equal opportunity will require serious consideration in such cases.
Does the concept of equal opportunity in matters of employment apply, however, to variations in provisions as between members of different classes of employees under the State? In our opinion, the answer must be in the 316 negative.
The concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated.
Equality of opportunity in matters of employment can be predicated only as between persons, who are either seeking the same employment, or have obtained the same employment.
It will, for example, plainly make no sense to say that because for employment as professors of colleges, a higher University degree is required than for employment as teachers of schools, equality of opportunity is being denied.
Similarly it is meaningless to say that unless persons who have obtained employment as school teachers, have the same chances of promotion as persons who have obtained employment as teachers in colleges, equality of opportunity is denied.
There is, in our opinion, no escape from the conclusion that equality of opportunity in matters of promotion, must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes.
The Petitioners ' Counsel did not seriously challenge the correctness of the above proposition.
They contended however that Road side Station Masters and Guards really form one and the same class of employees.
In our opinion, there is no substance in this contention.
It has to be noticed first that Appendix 11 of the Indian Railway Establishment Code (Vol. 1) which prescribe rules for the recruitment and training of subordinate staff of Indian Railways classify the subordinate staff governed by the rules into 7 branches: (1) Transportation (Traffic); (2) Commercial; (3) Transportation (Power); (4) Civil Engineering ; (5) Store department Staff; (6) Office clerks and (7) Medical.
Each branch again has been divided into groups.
The first branch, i.e., the Transportation (Traffic) is shown as having 3 groups: (i) Station Masters, (ii) Guards, (iii) Outdoor Clerical Staff.
Rule 2, the definition section defines a " group " to mean a series of classes which form a normal channel of promotion.
Rule 8 shows the classes of posts 317 included in the Station Masters ' group and the normal channels of their promotion which are as follows: Signaller Assist.
Head Signallers Assist.
Station Masters (lower grade) Head Signallers Station Masters (lower grade) Telegraph Inspectors Assist.
controllers Assist.
Yard Foreman Station Masters Controllers Yard Foremen Transportation Inspectors Rule 9 lays down the qualifications necessary for the recruitment to this "group".
Rule 10 says that the recruitment will be initially made as students and further provides that the recruits may be (a) persons to be trained in telegraphy in railway telegraph training schools and (b) persons who have completed a training in telegraphy in recognized private telegraph training schools.
Note 2 of this Rule provides that recruits in either, category will on the satisfactory completion of their training, be eligible for appointment as signallers and will remain on probation for one year after such appointment.
Provisions for training appear in Rule 11.
Rule 12 provides for Refresher and Promotion Courses.
Rules 13 to 17 are in respect of Guards.
Rule 13 states the classes included in this group and the normal channels of their promotion thus: Probationary Guards Goods or passengers guards Assistant Station Masters (higher grades) Assistant controllers Assist.
Yard Foremen Station Masters Controllers Yard Foremen Transportation Inspectors Rule 14 lays down the qualifications necessary for recruitment in this line.
Rule 15 provides that the 41 318 recruitment will normally be to the lower grade of Guards.
Rule 16 provides that during the one year period of probation recruits will undergo training for a period to be fixed by the administration.
Rule 17 provides for the periodical refresher courses at stated intervals and promotion courses as necessary may be prescribed.
In deciding the question whether Road side Station Masters and Guards belong to one and the same class of employees or not, we must not be misled by the words " groups " or " classes of posts " used in the above rules.
The crux of the question is the nature of the differentiation between Road side Station Masters and Guards in recruitment, prospects and promotion.
We find that Road side Station Masters and Guards are recruited separately, trained separately and the several classes of posts which are ordinarily open to them are also distinct and separate.
The only point of contact between them is provided by the rule that Guards may become Station Masters by passing the Slip 45 examination.
If after becoming Station Masters these Guards could continue also as Guards there might be some scope for suggesting that the two classes have coalesced.
It is not disputed however that Guards once they become Station Masters cease to be Guards and continue as Station Masters.
The fact that the qualifications necessary for recruitment as Guards or Station Masters are approximately or even wholly the same can in no way affect the question whether they form one and the same class, or form different classes.
As on the admitted facts the Roadside Station Masters and Guards are, as already stated, recruited separately and trained separately and have separate avenues of promotion, the conclusion is irresistible that they form two distinct and separate classes as between whom there is no scope for predicating equality or inequality of opportunity in matters of promotion.
In view of this conclusion it is unnecessary for the purpose of the present case to decide the other question: whether matters of promotion are included in the words " matters relating to employment in 319 Article 16(1) of the Constitution.
For even assuming that they are so included, the present application must be rejected on the simple ground that the petitioners belong to a wholly distinct.
and separate class from Guards and so there can be no question of equality of opportunity in matters of promotion as between the petitioners and Guards.
The learned Counsel for the petitioners stated before us that this channel of promotion for Guards is peculiar to the Central Railways, and is not now to be found in the other Zones of Indian Railways.
If that be the position, the matter may well deserve the attention of the Government; but this has nothing to do with the merits of the petition before us.
For the reasons mentioned above, we dismiss the application, but in view of all the circumstances, we order that parties will bear their own costs.
Petition dismissed.
[/INST]The question for determination in these appeals was whether and to what extent the municipal activities of the Corporation of 943 Nagpur City fell within the term 'industry ' as defined by section 2 (14.) of the C.P. and Berar Industrial Disputes Settlement Act, 1947.
Disputes having arisen between the said Corporation and its employees in its various departments, the State Government referred them for adjudication to the State Industrial Court under section 39 of the Act and that Court by its award held that the Corporation and all its departments were covered by the said definition.
Against that award the Corporation made an application to the High Court under article 26 of the Constitution.
The High Court rejected its contention that the Corporation was not an industry within the meaning of the said section and remanded the case to the Industrial Court for determination as to which of its departments fell within the definition and making an award accordingly.
Thereafter The Industrial Court found all the departments of the Corporation except those dealing with (1) assessment and levy of house tax (2) assessment and levy of Octroi, (3) removal of encroachment and removal and pulling down of dilapidated houses, (4) prevention and control of food adulteration, and (5) maintenance of cattle pounds, to be industries within the meaning of the definition and passed its award accordingly.
The Corporation appealed to this Court by special leave but there was no appeal on behalf of the employees of the five departments excluded from the definition.
Held, that the decision of the Industrial Court except so far as it related to the five departments in respect of which the re was no appeal, must be affirmed.
The definition of the word 'industry ' in section 2 (14) of the C.P. and Berar Industrial Disputes Settlement Act, 1947, although in a language somewhat different from that of section 2 (1) of the , is very comprehensive.
It is in two parts, cl.
(a) defines it from the standpoint of employers and cl.
(b) from that of the employee.
An activity that falls within any of the two clauses must be ,in industry.
D.N. Banerji vs P. R. Mukherjee ; and Baroda Borough Municipality vs Its Workmen.
; , applied.
It is not necessary that an activity of the Corporation must share the common characteristics of an industry before it can come within the section.
The words Of section 2 (14) of the Act are clear and unambiguous and the maxim noscitur a socii can have no application.
The history of industrial disputes and the legislation, however, recognises the basic concept that the activity must be an organised one and not one that pertains to private or personal employment.
State of Bombay vs The Hospital Mazdoor Sabha.
; and Heydon 's Case b., referred to.
But the definition, however wide, cannot include the regal, primary and inalienable, functions of the State though statutorily delegated to a corporation and the ambit of such functions cannot be extended so as to include the welfare activities of a modern state and must be confined to legislative power, administration of law and judicial power.
120 944 Richard Coomber vs The Justices of the County of Berks, Berks.(1883 84) 9 A.C. 61 and The Federated State School Teachers ' Association of Australia vs The State of Victoria.
; , County Council of Middlesex vs Assessment Committee of St. George 's Union.
(1896) 2 Q.B.D. 143, Verisimo Vasquez Vilas vs City of Manila, 220 U. section 345, and The Federated Municipal and Shire Council Employees ' Union of Australia vs Mclbourne Corporation.
; , referred to.
The real test as to whether a service undertaken by a corporation is an industry must be whether that service, if ' performed by an individual or a private person, would be an industry.
Monetary cosideration cannot be an essential characteristic of industry in a modern State.
It was, therefore, incorrect to say that only such activities as were analogous to trade or business could come within section 2 (14) of the Act.
D. N. Banerji vs P.R. Mukherjee, ; , explained.
The Federated Municipal and Shire Council Employees ' Union of Australia vs Melbourne Corporation.
(19l8 19) ; , Federated Engine Drivey and Fireme 's Association and Ors.
vs The Broken Hill Proprietary Company Limited and Ors.
5 and The Federated State School Teachers ' Association Australia vs The State of Victoria; , , referred to.
Where a service rendered by a Corporation is an industry, the employees of the departments connected with that service, whether financial, administrative or executive, would be entitled to the benefits of the Act.
Baroda Borough Municipality vs Its Workmen.
[1957] S.C.R. 33, referred to.
If a department of a municipality discharges many functions, some within and some without the definition of industry given by the Act, the predominant functions of the department shall be the criterion for the purposes of the Act.
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