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<s>[INST] Summarize the judgementAppeal No. 677 of 1963.
Appeal from the judgment and order dated March 31, 1961 of the Mysore High Court in Writ Petition No. 283 of 1959.
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
section V. Venkataranga Iyengar, M. Rama Jois and A. G. Ratnaparkhi, for the respondent.
March 25, 1964.
The judgment of the Court was delivered by AYYANGAR, J.
A very short question regarding the proper construction of Rule 50(b) of the Bombay Civil Services Rules is involved in this appeal which comes before us by a certificate of fitness granted by the High Court of Mysore under article 133 of the Constitution.
The facts giving rise to this appeal which are necessary to be narrated to appreciate the only point urged before us were these: The respondent was recruited as an Upper Division Clerk by the Government of Bombay in 1931 and was later appointed substantively as a Junior Assistant in the Political Department.
While so, on September 17, 1943 his services were transferred on deputation to the office of the Controller of Rationing, Bombay to work as a Senior Assistant in the newly started Rationing department which was a temporary department.
He obtained successive promo tions in this department and by March, 1954 he was drawing a pay of Rs. 460/ p.m. in the grade Rs. 350 30 650 as Rationing Officer.
That department was abolished in March, 1954 and thereafter he was reverted to his parent depart ment.
Though his parent department was the Political De partment, the respondent was, after he ceased to be a Rationing Officer, posted first to the Labour Department and then to the Public Works Department.
When this reversion took place his pay was fixed at Rs. 120/ p.m.
The petitioner protested against this reversion and this loss of his emoluments on the ground that this fixation of pay was contrary to the Rules framed by Government in regard to the service conditions of a Government servant who was appointed on deputation in another department.
He also pointed out that the officer next below him in his parent department had been appointed as an Assistant Secretary by virtue of normal and regular promotion.
therefore, however, final orders were passed on his representation by the Government of Bombay, the came into force and the respondent was allotted to the State of Mysore.
On November 27, 1958 the Government of Mysore informed the respondent through an official memorandum that in view of 473 certain communications received by that Government from the Government of Bombay in answer to his representations he should be considered to have held the post of Senior Assistant on June 1, 1954 on a salary of Rs. 225/ in the grade Rs. 210 15 300.The petitioner 's complaint,however, was that even this order was in violation of the conditions of his service and he claimed that when he was reverted to the parent department he was entitled to be posted as an Assistant Secretary a post which according to him, he would have held on that date had he not been deputed to the department of Civil Supplies on September 17, 1943.
There was no dispute that subject to an argument to which we shall refer presently, the respondent would have held the post of Assistant Secretary because the person next below him one Nadkarni actually held that post on that day.
The respondent claimed that on the basis of the Service Rules to which we shall immediately make reference he should, on his return to the parent department, have been posted as an Assistant Secretary and been allowed the scale of emoluments applicable to that post.
As the Government of Mysore refused to accede to his demand the respondent filed a petition under article 226 for inter alia a writ of mandamus directing the appellant State to include the petitioner in the grade pay of an Assistant Secretary I and fix him above Nadkarni.
The appellant raised a preliminary objection to the writ petition, the objection being that the complaint of the petitioner was not justiciable.
This was primarily based upon the fact that the respondent relied upon a circular of the Government of Bombay dated October 31, 1950 in support of his plea that he was entitled to the benefit that he claimed on reversion to the parent department from his service on deputation.
The material part of that circular ran: "It has come to the notice of Government that Government servants when deputed to other Departments or offices often draw pay in time scales which are identical with the timescales in their parent Departments.
The question therefore, arises on their reversion to their parent Department whether the service rendered in an identical time scale in the Department to which their service had been lent, should be allowed to count for increments in the parent Department under Note 4 below Bombay Civil Service Rule 41.
Government is pleased to direct that all such cases should be regulated under Bombay Civil Service Rule 51 and that only that portion of service in the foreign Department or office should be allowed to count for increments in the parent Department during which the person concerned would have drawn pay in the time scale applicable to the post he holds on reversion, but for his deputation to another Department or office, i.e., the case should be so regulated as to restore the position the person concerned would have occupied in his parent Department had he not been deputed.
" The question as to whether this circular which was treated as an administrative instruction could confer rights en forceable in a court on a Government servant was referred to a Full Bench for its opinion.
Before the learned Judges of the Full Bench the learned Advocate General, however, brought to the notice of the Court that this circular merely gave effect to a statutory rule framed by the Government of Bombay.
The relevant rule in this respect was rule 50(b) of the Bombay Civil Services Rules which ran: "50(b) Service in another post, other than a post carrying less pay referred to in clause (a) of rule 22 whether in a substantive or officiating capacity, service on deputation and leave other than extraordinary leave counts for increments in the time scale applicable to the post on which the Government servant holds a lien as well as in time scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended: Provided that Government may, in any case in which they are satisfied that the leave was taken on account of illness or for any other cause beyond the Government servant 's control, direct that extraordinary leave shall be counted for increment under this clause.
" The position, therefore, that emerged after this was whether an infraction of a statutory rule could give rise to a cause of action to an aggrieved Government servant.
The learned Judges answered this question in the affirmative and there after the Division Bench which heard the petition allowed the writ and granted the respondent the relief that he sought.
It might be mentioned that even by the date of the pendency of these proceedings in the High Court the respondent had retired on account of superannuation and the only question, therefore, was whether he would be entitled to the remuneration to which he, would have been entitled uader the rule in question.
The appellant State applied to the High Court 475 for a certificate to enable an appeal to be filed to this Court and on this having been granted the appeal is now before us.
in view of the decisions of this Court of which it is sufficient to refer to State of U.P. vs Babu Ram Upadhya(1) it was not disputed that if there was a breach of a statutory rule framed under article 309 or which was continued under article 313 in relation to the conditions of service the aggrieved Government servant could have recourse to the Court for redress.
Learned Counsel for the Appellant, however urged two contentions in support of the stand that the respondent was not entitled to be appointed to any higher post than as a Senior Assistant or to receive a salary higher than Rs. 225/in the scale Rs. 210 15 300 which had been granted to him by the impugned order of November, 1958.
The first was that on a proper construction of Rule 50(b), an officer who after serving on deputation in another department is revert ed to his parent department is entitled to nothing more than the increments allowable in the time scale applicable to the substantive appointment which he held at the time of the transfer.
In this connection stress was laid on the words "increments in the time scale applicable to the post on which the Government servant holds a lien" occurring in the subrule.
We are unable to accept this contention.
In the first place, it is not clear whether the case of the respondent was one where he held a lien or one where the lien was suspended, and no material was placed before the Court in this regard, the point in this form not being urged in the High court.
But even assuming that it was a case where the respondent had a lien and his lien had not been suspended it is difficult to see what logic there could be in interpreting the rule as providing different criteria in the two cases. 'Where the lien is suspended the rule speaks of the "post or posts, if any he would have held if his lien had not been suspended".
By the use of the plural, it is clear that the rule ,contemplated the suspended lien being transferred from one post to another in other words, to a promotion from one post to another during the period of the service in another ,department.
If there was any ambiguity in what the rule meant it is wholly dispelled by reference to the circular which ensures to the officer on deputation in another department that he shall be restored to the position he "would have occupied in his parent department had he not been deputed".
It was not suggested that there was any ambiguity in the wording of this circular which, in our opinion, gives proper effect to the provisions of Rule 50(b). (1) ; 476 The other submission of learned Counsel was that a Government servant though he had a right to increments in a time scale applicable to the post that he held on the date of his transfer on deputation and on which he had a lien, had no legal right to be promoted to a higher post and that the construction adopted by the High Court virtually con ceded or guaranteed to officers on deputation a right to an automatic promotion which they would not have had if they had not been posted on deputation.
We see no force in this contention either.
Learned Counsel is right only in so far as the promotion involved relates to a selection post.
But where it is based on seniority cum merit, those considerations are not relevant.
The service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50(b).
So long therefore as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason that that satisfactory service and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotions, which are often on seniority cummerit basis.
What is indicated here is precisely what is termed in official language the "next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted.
If there are adverse remarks against him in the new department or punishments inflicted on him there, different considerations would arise and these adverse remarks etc.
would and could certainly be taken into account in the parent department also, but that is not the position here.
In view of the facts of the case it is not necessary to discuss this aspect in any detail or any further.
The appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]An industrial dispute arose between the appellant and its workmen as to payment of bonus for the years 1957 58 and 1958 59.
The dispute was referred for adjudication to the tribunal.
The respondents claimed bonus on the basis that payment of some bonus at Christmas had become an implied condition of service between the appellant and its workmen.
The workmen claimed 1 1/2 months wages for each year on the basis of an implied term of service.
On these facts the tribunal held on the basis of the decision of this Court in M/s. Ispahani Ltd. vs Ispahani Employees Union that payment of bouns at the rate of 1 1/2 months ' salary as an implied condition of service had been established.
It is this award of the tribunal which ha, , been challenged before this Court.
Held: (i) Where the payment of bonus is connected with a festival it is possible to infer that there is an implied condition to pay something at the time of the festival, even though the payment has not been made at a uniform rate in previous years.
In the present case, the payment has not been uniform over the years and before an implied term of service to pay bonus can be inferred it must be shown that the payment was connected with some festival.
Therefore the tribunal was not right in holding that there could be an implied condition of service as to payment of bonus unconnected with any festival.
In the present case, though the amount paid in December was originally called an advance, at least one month 's salary out of the so called advance always remained with the work men and was treated as bonus connected with Christmas festival.
On the facts of this case it was held that there was an implied condition of service between the appellant and its workmen that something would be paid every year about Christmas time as festival bonus.
M/s. Ispahani Ltd. vs Ispahani Employees ' Union, [1960] 1 S.C.R. 24, relied on.
(ii) In a case of payment which is made at different term and is not at a uniform rate the duty of the court is to connect the payment with a festival (in this case Christmas).
On the evidence in this case it is clear that the minimum is only one month 's salary payable about Christmas time and this was actually paid in 1951 52 and 1953 54.
Therefore the payment of one month 's salary as Christmas bonus is proved as an implied condition of service between the appellant and its workmen on the admitted facts of this case.
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<s>[INST] Summarize the judgementCivil Appeal No. 1746 of 1980.
Appeal by Special leave from the Judgment and Order dated the 4th September, 1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2780 of 1979.
N.D. Garg, S.K. Bisaria and T.L. Garg for the appellant.
Girish Chandra for Respondent No. 3.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
In April 1962, the appellant was appointed as a clerk in the Hoshiarpur Central Co operative Bank Ltd., which is respondent 3 to this appeal.
On August 10, 1976 he was transferred as 'Branch Manager ' of the Dholbaha branch of the Bank.
On October 22, 1977 one Labh Singh s/o Harnam Singh opened an account in the Dholbaha Branch under an introduction given by one Bahram Singh.
Two days later, Labh Singh deposited in that account a draft in the sum of Rs. 5,000 issued by the Royal Bank of Canada on the Chartered Bank, New Delhi.
The amount due on the draft was credited by the Bank in Labh Singh 's account on November 14.
On that very day, Labh Singh withdrew a sum of Rs. 2,500 from his account.
Three days later, he withdrew the remaining amount of Rs. 2,500.
Soon thereafter a person claiming to be the real Labh Singh in whose favour the draft was issued by the Royal Bank of Canada, complained to the Chartered Bank, New Delhi, that the draft was stolen and that the money due thereon was fraudulently collected by the person in whose name an account was opened in the Dholbaha branch.
On November 10, 1978, the Executive Committee of respondent 3 Bank resolved that an enquiry be held for fixing responsibility in the matter of the fraudulent encashment of the draft.
The enquiry was held by the Chief Executive officer, Satish Chander Dutt, who was of the rank of the Assistant Registrar in the Co operative department.
As a result of the report submitted by him, the appellant was dismissed from service on December 30, 1978.
The demand raised by the appellant in regard to his dismissal was referred by the Government of Punjab to the Conciliation 319 officer, who recommended that the appellant 's case should be forwarded for adjudication on the question whether his dismissal from service was justified.
The Labour Commissioner of Punjab, exercising the powers of the State Government, declined to refer the dispute for adjudication on the ground that the appellant was not a workman.
The appellant filed a Writ Petition in the High Court of Punjab and Haryana, challenging the decision of the Labour Commissioner, but that Writ Petition was dismissed summarily.
The appellant has filed this appeal by special leave, challenging the decision of the High Court and of the Labour Commissioner.
The State of Punjab and the Labour Commissioner are respondents 1 and 2 to this appeal.
The grievance made by Shri N. D. Garg, who appears on behalf of the appellant, that the Labour Commissioner ought to have given reasons in support of his decision, is justified.
All that the Labour Commissioner has stated in the order is that the post held by the appellant did not fall "within the category of workman".
This, really, is the conclusion to which the Labour Commissioner came but no reasons are given to justify that conclusion.
We are of the opinion that the Labour Commissioner ought to have given reasons why he came to the conclusion that the appellant is not a "workman" within the meaning of section 2 (s) of the .
We could have remanded the matter to the Labour Commissioner asking him to state his reasons why the appellant is not a workman but, that will entail delay.
Instead, it is advisable from the point of view of not only the appellant but the Bank also that a deference is made either to the Labour Court or to the Industrial Tribunal under section 12 (5) of the , for adjudication of the question as to whether the dismissal of the appellant from the services of the Bank is legal and justified.
Accordingly, we direct that the 2nd respondent, the Laboure Commissioner, Chandigarh, to whom the State Government has delegated its powers under section 12 of the Act shall make a reference to either of the two authorities as he considers proper.
At one stage, we wanted to decide for ourselves the question as to whether the appellant is workman within the meaning of section 2(s) of the .
Considering the time that has gone by, we wish that we could have decided that question but, on the material before us, we find it difficult to do so.
The case of the appellant is that he is a mere matriculate who now possesses a some 320 what exalted and misleading designation of a 'Branch Manager. ' According to him, there are 58 Branches of the Bank in the District of Hoshiarpur, in 29 out of which there are only two officers, one of whom is called the Branch Manager and the other the Cashier.
He contends that the Branch Manager has no administrative or discretionary powers to exercise and is not employed in a supervisory capacity.
His case is that he is a clerk mis called the Branch Manager.
The contention of respondent 3 Bank, on the other hand, is that not only was the appellant 's remuneration in excess of Rs. 500 per mensem but, being employed in a supervisory capacity, he exercised functions mainly of a managerial nature.
It is alleged that he was vested with the power of superintending the working of the office, maintaining registers, sanctioning loans, receiving deposits, borrowing within the limits sanctioned by the Registrar, incurring contingent expenditure, attending meetings of the Board of Directors, the Executive Committee and other Committees constituted under the bye laws and certifying copies of entries in the banker 's books.
The grievance of the appellant is that the Bank did not raise any contention before the Labour Commissioner that he was not a workman within the meaning of the Act with the result that, he had no opportunity to meet that case.
The parties have included in the paper book before us some material bearing on that question but it will be unsatisfactory to decide that question without proper evidence.
After all, the question as to whether the appellant is a 'workman ' is basically a question of fact.
That is why, on the basis of the stray material before us, we do not consider it advisable to decide that question.
When this appeal was argued before us, a prosecution was pending in the Court of the learned Judicial Magistrate, Hoshiarpur, in which three persons were charged for impersonation and cheating in connection with the fraudulent encashment of the draft which led to the dismissal of the appellant.
The appellant was not only not included in the array of the accused in that prosecution but the judgment of the learned Magistrate dated August 19, 1981 shows that during the course of investigation, it was found that the appellant was not responsible for the fraud.
In fact, the appellant was examined as prosecution witness No. 4 in that case.
Two out of the three accused were discharged by the learned Magistrate while accused No. 1, Sham Lal, was convicted under sections 419 and 420 of the 321 Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500.
At the instance of the Bank, a reference was made to an Arbitrator under section 55 of the Punjab Co operative Societies Act, 1961, for deciding the question whether the appellant is liable to repay the amount of Rs. 5,000 to the Bank, which was fraudulently withdrawn by Labh Singh.
By an Award dated November 23, 1982 the Arbitrator dismissed the reference, holding that the appellant was not responsible for the fraudulent encashment of the draft.
The Arbitrator observed that the Bank could recover the amount from Sham Lal, who was convicted in the criminal proceedings, but not from the appellant.
We have referred to these two matters, the prosecution and the arbitration proceedings, in order that the Bank may examine whether it is not possible to drop the proceedings against the appellant and take him back in employment.
If the Bank finds that the appellant was merely negligent in the discharge of his duties as a Branch Manager, it may consider whether the appellant could be taken back in employment without the payment of full back wages.
For these reasons, we allow the appeal and direct respondent No. 2, the Labour Commissioner, Chandigarh, to make a Reference under section 12 of the , as directed by us.
The reference shall be make forthwith and it shall be disposed of within two months after its receipt.
There will be no order as to costs.
M.L.A. Appeal allowed.
[/INST]In the year 1958 59 the State Government framed the Khandsari Licensing Scheme to regulate the supply of sugarcane to sugar factories.
Posts of Khandsari Inspectors initially designated as Licensing Inspectors were created in the pay scale of Rs. 120 250.
Petitioners in the writ petitions were appointed as Khandsari Inspectors between March and May, 1960.
Thereafter some of the respondents were recruited as Khandsari Inspectors and along with some others who were recruited departmentally were approved by Public Service Commission.
On March, 22, 1971 the third respondent the Sugar Commissioner circulated a provisional seniority list of Khandsari Inspectors.
71 The petitioners represented against the seniority list contending that they were assigned lower place in the seniority list even though they were recruited earlier and have been continuously in service.
The representations having been rejected, writ petitions were filed in this Court.
In their writ petitions to this Court, the petitioners contended that when recruitment was made in the year 1960, the post of Khandsari Inspector was not within the purview of the Public Service Commission and that they were regularly recruited to posts which were temporarily sanctioned but indefinitely continued and therefore, in reckoning their seniority, they must be given the benefit of the length of continuous officiation, and that once approval is granted by the Public Service Commission it would relate back to the date of their appointment and that the previous length of service cannot be ignored or denied in computing seniority in the absence of any statutory rule or administrative instruction.
It was further pointed out that petitioner Nos. 4 to 8, who were recruits of 1961 had been assigned places Nos.
34, 42, 35 and 31 respectively in the seniority list while recruits of 1963 had scored a march over them in the provisional seniority list.
The respondents contested the writ petitions contending that by a Government order temporary post of Licensing Inspectors were re designated as Khandsari Inspectors and that the post right from inception was within the purview of the Public Service Commission, that on the framing of the Khandsari Licensing Scheme, it became necessary to urgently appoint Inspectors to implement the scheme, and therefore the third respondent the Sugar Commissioner who was the appointing authority pending regular selection through open competition through Public Service Commission proceeded to make the appointments of the petitioners as stop gap or ad hoc nature and that their appointment created no right to the post.
The drawing up of the tentative seniority list was justified as being based on the recommendations of the Public Service Commission, and it was submitted that the service which can be taken into consideration for determining the length of continuous officiation must commence from the date of substantive appointment and that the provisional seniority list had been drawn up keeping in view the date of approval by the Public Service Commission in respect of each candidate and that there was no error in drawing up the seniority list.
It was further contended that promotions which were granted on the basis of the provisional seniority list were not questioned by the petitioners and they have acquiesced in it, and that the petitioners had moved the Court after a long unexplained delay and that the Court should not grant any relief.
Allowing the Writ Petitions, 72 ^ HELD: (1) The impugned seniority list dated March 21, 1971 in respect of Khandsari Inspectors is quashed.
Respondents 1 to 3 are directed to draw up a fresh seniority list based on the principle of length of continuous officiation reckoned from the date of first appointment if the appointment is followed by confirmation i.e. selection approval by the State Public Service Commission.
[87 F] (2) (i) The Memorandum of 1940 merely prescribed guidelines for the departments of the Secretariat either to frame statutory rules or executive instructions governing conditions of service in respect of existing services if there are no rules, or they may be modified or amended so as to bring them generally in conformity with the 1940 Order, and whenever a new post or a new cadre in a service is set up to frame rules in conformity with guidelines prescribed in the 1940 Order.
The 1940 Order does not purport to lay down conditions of service governing any cadre either specifically or generally.
It provides a model and unless the model is adopted it is not binding.
[82 D F] (ii) Assuming that the model principle set out in the 1940 order has a binding effect the impugned seniority list does not conform to the prescribed guidelines and is invalid.
[85 F] (3) (i) A fair rule of seniority should ordinarily take into account the past service if the stop gap arrangement is followed by confirmation.
[86 E] (ii) If a stop gap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, there is no justification for ignoring past service.
There is also no justification for two persons selected in the same manner being differently treated.
If once a person in a stop gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made.
In the instant case, that has not been done to all the petitioners.
The error is apparent in the case of petitioner No. 1 and respondent No. 7.
[86 B D] (iii) When a seniority list is challenged as being violative of the guarantee of equality enshrined in Articles 14 and 16 and prima facie it appears that those who came into the cadre later on scored a march over those who were already in the cadre, it would be for the authority justifying the seniority list to plead and point out the rule for determining seniority on the basis of which the list is drawn up.
If any such rule is pleaded it would be for those impugning the seniority list to aver and establish that 73 the alleged seniority rule is violative of the fundamental rights guaranteed by Articles 14 and 16.
[78 G H; 79A] (4) (i) It is open to the Government to lay down general conditions of service governing all services in the State either by rules framed under Section 241 of the Government of India Act 1935, or on the advent of the Constitution under the proviso to Article 309 of the Constitution.
In the absence of statutory rules, conditions of service in a particular cadre may be governed by executive instructions issued by the Government in exercise of its executive power.
[81 C E] (ii) In the absence of any other rule valid for determining seniority under Article 16, seniority being determined by the length of continuous officiation has been accepted as valid by the courts.
[82 H; 83 A] P.S. Mahal and Ors.
vs Union of India and Ors.
and Bishan Sarup Gupta vs Union of India, ; , referred to.
(5) Model Rule 11 suggests as guidelines two independent principles for determining seniority; namely (1) seniority should be reckoned from the date of substantive appointment, and (2) from the date of the order of first appointment if such appointment is followed by confirmation.
[84 A] In the instant case, recitals in the appointment order do not spell out that the appointees were to hold stop gap arrangement till a candidate selected by the Public Service Commission is made available.
On the contrary, the recitals clearly indicate that those appointees will have to face the approval test by the Public Service Commission.
If petitioner Nos. 1 and 2 came to be appointed in 1960 and respondent Nos. 4, 5 and 6 came to be appointed in 1961 and the appointment of each of them had to be approved by the Public Service Commission, once the approval is granted the same will relate back to the date of first appointment.
That is the meaning of the expression in Model No. 11; 'or from the date of the order of the first appointment if such appointment is followed by confirmation. ' [85 A C] (6) Where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
[86 G] Baleshwar Dass and Ors. etc.
vs State of U.P. and Ors.
,[1981] 1 SCR 449, referred to.
74 In the instant case, respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners.
Petitioners went on making representations after representation which did not yield any response, reply or relief.
Further, the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the court.
The contention that the writ petitions should be thrown out on the ground of delay, latches an acquiescence must therefore be rejected.
[87 C D]
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<s>[INST] Summarize the judgementAppeal No. 721 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 27th April 1976 of the Patna High Court in Appeal from Appellate Decree No. 6 of 1974).
Harbans Singh Marwah, for the appellant.
K.K. Sinha, S.K. Sinha and Devi Prasad, for respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of suit for eviction of the tenant.
Two rooms being shop Nos. 17 and 18 of Modi Building in Commissioner 's Compound, Ranchi, were let out by the plaintiff (respondents herein) on a monthly rental to the. defendant (appellant herein).
We will describe them as the plaintiff and the defendant.
It is common ground that fair rent of Rs. 50/ per month (including water tax) was deter mined for the two, shops by an order of the Rent Control ler under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953.
Later on, certain furniture, such as ' five almirahs and six racks, were also let out by the plaintiff to the defendant on a monthly rental of Rs. 28/ .
A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non payment of rent of the said two shops and furniture for three months from July to September 1965.
986 The Munsiff, Ranehi, dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11(1)(d) of the Act.
The Munsiff also held that there was no valid service of notice under section 106 of the Transfer of Property Act.
On appeal the Second Additional Subordinate Judge, Ranchi, reversed the judgment of the trial court and de creed the suit for eviction upholding the ground of default.
The Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs. 78/ per month which included the rent for furniture and hence remittance by the defendant of Rs. 50/ per month was not a valid dis charge of his rental liability and he was a faulter within the meaning of section 11(1)(d) if the Act.
The Subordinate Judge also held that there was no proper service of the notice of eviction.
We are not concerned in this appeal with the question of service of notice.
Since the Subordinate Judge was the final court of facts, it will be appropriate to note the following findings material for our purpose: (1) "I, therefore, decide that the plain tiff was entitled to realise Rs. 50/ as monthly rent.
(2) In view of the evidence of the parties and Ext.
2 I hold that plaintiff had supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs. 28/ per month.
(3) The subsequent supply of furniture and that of sufficient value must be construed as a quite independent contract unconnected with the original tenancy . ".
The defendant 's second appeal to the High Court failed. 'The High Court agreed with the first appellate court that the rent for furniture was also lawfully payable under section 11(1)(d) and hence the ground of default of payment of Rs. 78/ per month from July to September 1965 was avail able to the plaintiff.
The High Court also gave an additional reason for sus taining the eviction decree.
There was an order by the Subordinate Judge, in the course of the appeal, under sec tion 11A of the Act directing the defendant to deposit the rent of the premises at the rate of Rs. 50/per month in terms of that Section.
It appears there was some controver sy before the Subordinate Judge as to whether this order under section 11A was complied with or not by the defendant.
The Subordinate Judge, however, repelled the contention of the plaintiff to strike out the defence of the defendant on the ground of non compliance with the court 's order under section 11A in the following terms: "It was argued on behalf of the appel lant (plaintiff) that the defendant had not deposited subsequent rent in spite of direc tion by the court and so this court had to 987 strike out the defence against ejectment.
The defendant had filed the documents to show subsequent deposit in regular way.
So this plea of plaintiff fails".
A second attempt, and this time successfully, was made in the High Court by the plaintiff to.
press the ground under section 11A of the Act to strike out the defendant 's de fence against ejectment.
It is clear from the judgment of the High Court that there was no material, without further enquiry, to reach a conclusion contrary to that of the first appellate court with regard to non compliance with section 11A of the Act.
The High Court, therefore, allowed parties to produce some documentary evidence and relying upon the same held as follows: "Learned Advocate appearing for the appellant (defendant) contended that inasmuch as the delay in depositing the money in the Bank occasioned on account of the default of the officers of the court, no penalty should be imposed on the appellant (defendant).
Learned Advocate, however, failed to produce any material to.
show as to what detracted the appellant (defendant) to deposit the money himself on 15 3 1974 on the passing of the. challan and what caused the 7handing over the money to.
the Nazir".
In a matter where the first appellate court came to a posi tive finding in favour of the defendant with regard to the non compliance with its order under section 11A, we do not consider that the High Court was right in adopting the course.
it did in a rather unsatisfactory manner to reach a contrary conclusion, for the first time, on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latter 's oral testimony.
There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on March 14, 1974.
The matter would have been different if the High Court, in the interest of justice, had called for addition al evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportu nity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation.
It is true that the High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in great prejudice to the defend ant.
Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of additional evidence before the High Court.
In view of the fact that the first appellate court held the deposit of the amount sufficient ' under the law being within the statutory period Laid down under section 11A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it.
This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in ' the extract from the judgment quoted 15 206SCI/77 988 above.
The only objection of the.
High Court was that the defendant instead of handing over the amount to.
the Nazir should have "himself ' deposited the amount on March 15, 1974.
Since the money was deposited by the Nazir on May 28, 1974, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment.
The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit, therefore, fails.
Further section 11 describes the circumstances under which eviction of tenants can take place.
Under that section a tenant shall not be liable to eviction except in execution of a decree passed by the court on one or more of the grounds specified therein.
Section 11A which was inserted by amendment by Bihar Act 16 of 1955 reads as follows: "Deposit of rent by tenants in suits for ejectment.
If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the ten, ant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the Court, after giving an oppor tunity to the parties to be heard, may make an order for deposit of rent at such rate as may he determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the.
rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.
The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so.
The Court may further order recovery of cost of suit and such other com pensation as may be determined by it from the tenant".
It is submitted by the defendant that an order under section 11A can be passed only by the trial court.
We are, however, unable to accept this position, since appeal is a continuation of the suit.
The advantage which is given to the landlord under section 11A for the purpose of realisa tion of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secured by the landlord at any stage of the litiga tion, whether in the trial court or in appeals.
The penalty of striking out defence for non compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of the Act.
The only ground that remains for consideration is wheth er the defendant defaulted m the payment of rent from July to September, 1965.
If it were merely a finding of fact by the first appellate court 989 there would be nothing wrong for the High Court to dismiss the second appeal.
The question, however, assumes a legal complexion even on the findings of facts of the first appel late court.
The first appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time.
The first appellate court found that the rent of Rs. 28/ per month for the furniture was a subject matter of "subsequent supply" and "a quite independ ent contract 'unconnected with the original tenancy".
It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act.
The High Court has accepted this legal conclusion of the Subordinate Judge.
We are, however, unable to accept the above legal position of the defendant 's default in this case on the finding of facts set out above.
Rent has been always Rs. 50/ per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953.
The parties having been already before the Rent Controller for fixation of fair rent of the premises, the plaintiff could not alter that fixed rent without order of the Rent Controller.
Section 4 of the Act provides that "notwith standing anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to.
in crease, or claim 'any increase in, the rent which is payable for the time being, 'in respect of any building except in accordance with the provisions of this Act".
The two shops, which are building for the purpose of section 2(an) of the Act, were rented out as an unfurnished building.
This amount of rent of Rs.50/ was determined by the Rent Con troller as fair rent under section 5 of the Act.
It is the default in the payment of this rent fixed by the Rent Con troller which will furnish a ground for eviction under section 11(1)(d) of the Act.
Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mis chief of section 11(1)(d) to entitle the landlord to a decree for eviction.
On the findings of the first appellate court the furniture rent remains di vorced from the rent of the building under the original demise.
Even if the furniture be returned, the lease for the building in this case will not be affected.
The plaintiff submits that since the definition of build ing includes furniture the rent becomes consolidated 'and the defendant was liable to pay the total amount of Rs. 78/ and any default for two months to pay the consolidated rent will attract sections 11(1)(d) of the Act.
The plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermina tion of the rent under section 7 of the Act.
We are unable to accept the above submission.
Any alteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller.
Section 7, inter alia, 990 provides that if, at.
any time after the fair rent of a building has been determined, it appears to the Rent Con troller that subsequent to such determination some addition or improvement has been made to the building at the land lord 's expense, the Controller may redetermine the .fair rent of the building.
There is no legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act.
Any other course is bound to lead to mal practices and unholy devices deterimental to the interests of the tenants.
No enhance ment of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act.
Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the article The High Court, and earlier the Addi tional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court.
There was, there fore, no basis for granting decree for eviction under sec tion 11(1)(d) of the Act.
In the result the judgment of the High Court is set aside and the judgment and the decree of the Munsiff dis missing the suit stand restored.
The appeal is allowed with costs.
P.B.R. Appeal allowed.
[/INST]Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act.
1947 provides that a tenant shall not be liable to eviction except in execution of a decree passed by the Court on one or more of the grounds specified there in.
Under section 11A, if in a suit for recovery of possession of any building the tenant contests the suit, the Court may make an order for deposit of rent and arrears, if any, and on failure to deposit the arrears within fifteen days of the date of the order, the Court shall order the defence against ejectment to be struck out.
The plaintiff (respondent) let out two rooms of his premises to the defendant (appellant) at a rent fixed by the Rent Controller under section 5 of the Act.
Sometime later, the plaintiff let out some furniture to the defendant at a mutually agreed rent.
The plaintiff 's suit for eviction of the defendant on the ground of non payment of rent for three months was dismissed by the trial Court holding that failure to pay the rent of furniture along with the rent of the premises did not amount to a default under section 11(1)(d) of the Act.
On appeal, the Subordinate Judge held that non payment of rent of furniture along with the rent of the premises was a default within the meaning of section 11(1)(d).
The High Court upheld the decision of the Subordinate Judge.
On the question of deposit of rent under section 11A, the Subor dinate Judge held that the defendant had filed documents to show subsequent deposit in a regular way.
On the other hand, the High Court came to the conclusion that the defend ant failed to produce any material to show as to what de terred him from "depositing the money himself on the passing of the challan and what caused the handing over of the money to the Nazir.
" On this ground, it allowed the plaintiff 's suit.
Allowing the appeal, HELD: The High Court and the Subordinate Judge committed an error of law in accepting the ground of default under section 11(1)(d) on a wrong appreciation of the legal position on the facts found by the first appellate Court.
There was, therefore, no basis for granting a decree for eviction under section 11(1)(d) of the Act.
[990C] 1.
(a) It is the default in the payment of rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d).
Section 4 of the Act provides that notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in, the rent which is pay able for the time being, in respect of any building except in accordance with the provisions of the Act.
[989E F] In the instant case, the Rent Controller having fixed the rent of the premises, the plaintiff could not alter that rent without an order of the Rent Controller.
Default of the payment of furniture rent agreed to by the defendant subse quent to the lease of the premises could not be brought within the mischief of section 11 (1) (d) to entitle the landlord to a decree for eviction.
The furniture rent remains di vorced from the rent of the building under the original demise.
[989D &P] (b) Any alteration of the fair rent fixed by the Rent Controller will have to receive the imprimatur of the Rent Controller under section 7.
There is no legal impediment if the parties approach the Controller and by consent obtain an order from the Controller fixing the revised rent admissible under the Act.
No 985 enhancement of fair rent is legally permissible except in accordance with the provisions of the Act.
Default of payment of any rent in excess of the fair rent fixed, if without recourse to the Procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Act.
[990A B] The penalty of striking out the defence for non compli ance of an order under s.11A is district from the grounds of eviction permitted under section 11.
[988H] 2.
The contention of the defendant that an order under s.11A could be passed only by the trial Court is without force because an appeal is a continuation of the suit.
The advantage given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite can be secured by him at any stage of the litigation, whether in the trial Court or in appeal.
[988G] 3.
Where the first appellate court came to a positive finding of fact in favour of the defendant, the High, Court was wrong in adopting a different course to reach a contrary conclusion for the first time on a vital fact.
The matter would have been different if the High Court had called for additional evidence under 0.41, r. 28, C.P.C.
But the course adopted by the High Court has resulted in great prejudice to the defendant.
[987E F] In the instant case the High Court itself had accepted that the amount of rent was handed over to the Nazir but the objection was that the defendant, instead of handing over the amount to the Nazir, should have himself deposited it.
In the absence of a proper enquiry into the matter of delay of deposit by the Nazir the High Court was not right in second appeal to penalise the defendant by striking out his defence against ejectment.
[988B]
</s>
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<s>[INST] Summarize the judgementAppeals Nos. 131 and 132 of 1960.
Appeals from the judgment and decree dated April 4, 1952, of the Madras High Court in Appeal No. 816 of 1947 and No. 83 of 1948.
A. V. Yiswanatha Sastri, R. Ganapathy Iyer, K. Parasaran and G. Gopalakrishnan, for the appellants.
K. Bhimassankaran, Durgabai Deshmukh, A. Narayana Swami and R. Thiagarajan, for the respondents 2 to 4.
R. Gopalakrishnan, for respondent No. 2 (In C. A. No. 132 of 1960).
November 19.
The judgment of the court was delivered by SUBBA RAO, J.
These appeals filed by a certificate issued by the High Court of judicature at Madras raise a question of Hindu Law pertaining to marriage in 'Asura form '.
The material facts may be briefly stated : To appreciate the, facts and the contentions of the parties the 247 following genealogy may be usefully extracted Muthusami Naicker | | | Senior wife Junior wife | | Konda Bommu Naicker Kamayasami Naicker (died 23.10.1873) (died 31.
7. 1901) | | | | Kandaswami Naicker Ponnuthayee Naicker (died 31.
7. 1881) (died 13.3 1938) | Banmuga Valla | Konda Bommu Naicker | (died 21.1 1901) | | | | | | | Dorairaja Muthusami Kama Parama | alias (2nd Plff) yasami sivam Married | Thanipuli (3rd Plff)(4th Plff) Errammal | chami (died 2.2.1933) | (1st Plff) | | Bangru Ammual | (died 14.12.1930) | | | married also 8 other wise of whom the last to die were: (a) Meenakshi Ammual (died 5.6. 1938) (b) Krishna Ammual (died 10.11.1938) (c) Vellayammal alias Chinathayammal (died 2.5.
1940).
248 Thevaram is an ancient impartible zamindari in Madurai District.
Shanumugavalla Konda Bommu Naicker was zamindar from 23.8.1876 to 20.1.1901.
On his death on January 21, 1901 Bangaru Ammal, his daughter, got his entire estate under the will executed by him.
To discharge the debts incurred by her father Bangaru Ammal executed on March 13, 1913 a mortgage of her properties for a sum of Rs. 2,15,000/ in favour of one Chidambram Chettiar.
On his death his son Veerappa Chettiar filed on April 16, of 1925 against Bangaru Ammal in the Subordinate judge 's Court, Dindigul for the recovery of a sum of Rs. 5,49,6338 7 being the balance of the amount due under the said mortgage.
The suit was compromised and on July 28, 1928, a compromise decree was passed therein.
Under the compromise decree the mortgaged properties were divided into three Schedules A, B & C and it was provided that if a sum of Rs. 3,75,000/ was paid by July 31, 1931, the mortgage must be deemed to have been fully discharged but in default the properties in Schedule A of the decree were to become the absolute properties of the plaintiff.
B Schedule properties i.e., some of the pannai lands and the C Schedule properties, i.e., those already alienated by Bangaru Ammal were released from the mortgage.
One K. V. Ramasami Iyer, the Manager of the estate was appointed Receiver of the A Schedule properties and he was directed to deposit the surplus income into court towards the payment of the amount due under the compromise decree.
Before the expiry of the period prescribed under the said decree Bangaru Ammal died on December 14, 1930, and her mother Errammal claiming to be her heir on the ground that Bangaru Ammal 's marriage was held in 'Asura form ' filed I.A. No. 190 of 1931 in the court of the Subordinate judge, Dindigul, for directing the Receiver to hand over the estate to her.
Veerappa Chettiar in his turn filed I.A.No.170 of 1932 for 249 directing the Receiver to deliver possession of A Schedule properties on the ground that the term prescribed under the compromise decree had expired and the balance of the amount due under the decree was not paid to him.
In the petition filed by Errammal she raised the question of the validity and the binding nature of the compromise decree on her.
After elaborate inquiry on February 1, 1933, the learned Subordinate judge, though he held that the marriage of Bangaru Ammal was in 'Asura form ', dismissed her petition for the reason that the mortgage was valid and binding on her and allowed the petition filed by Veerappa Chettiar directing the delivery of the possession of A Schedule properties to him.
On February 2, 1933, Veerappa Chettiar had taken delivery of A Schedule properties and on July 19, 1933 he was registered as proprietor of Thevaram estate by the Collector of Madura.
On February 2, 1933, Errammal died executing a will dated January 30, 1933, in favour of her nephew Thangachami Naicker.
It may also be mentioned that three of the co widows of Shanmugavalla survived Errammal.
They died one after another and the last of them Vellayammal passed away on May 2, 1940.
Thangachami Naicker along with one of the widows filed appeals to the High Court against the said judgments but those appeals were dismissed by the High Court on the ground that they were not maintainable.
As Thangachami Naicker interfered with the right of Veerappa Chettiar with regard to certain tanks and water courses in Zamindari he filed 0.
section 2 of 1934 in the Subordinate judge 's court of Dindigul against Thanchami Naicker and obtained a decree declaring his right to the said tanks.
The appeal filed by Thanchami Naicker against that decree was also dismissed with costs on April 10, 1940.
In execu tion of the decree for costs Veerappa Chettiar got the property alleged to be in possession of Thanchami 250 Naicker attached.
One section Michael (son of Thanchami Naicker) objected to the attachment of the said property on the basis of a sale in his favour by the alleged reversioners to the estate of Bangaru Ammal.
That petition was dismissed on August 23, 1944.
The said claimant section Michael filed 0.
section No. 52 of 1944 in the court of the Subordinate judge, Dindigul for setting aside the said claim order.
To that suit Veerappa Chettiar and Thangachami Naicker were made party defendants.
On January 31, 1945 the alleged reversioners to the estate of Bangaru Ammal filed 0.
section 14 of 1,945 in the Court of the Subordinate judge, Dindigul against Veerappa Chettiar, his younger brother and defendants 3 & 9 who were alleged to be the tenants in possession of some of the items of the plaint Schedule properties.
The plaintiffs in that suit are the grandsons of one Kandaswamy Naicker shown in the genealogy a paternal uncle of Shanmugavalla Konda Bommu Naicker.
They claimed that they are the reversioners to the estate of Bangaru Ammal on the ground that Bangaru Ammal was married in 'Asura form '.
It is alleged in the plaint that succession opened in their favour when Vellayammal died on May 2, 1940 and that the compromise decree passed against Bangaru Ammal was not binding on them and that in any view the property set out in Schedule C and C 1 attached to the plaint did not pass to Veerappa Chettiar under the said decree.
The contesting defendants in both the suits pleaded that the marriage of Bangaru Ammal was not in 'Asura form ', and therefore the plaintiffs in 0.
section 52 of 1944 were not the reversioners to the estate of Bangaru Ammal, that the compromise decree was binding on the estate and that C and C 1 Schedule properties also passed to the decree holder thereunder and that in any view the suit was barred by time.
251 It is seen from the foregoing narration of facts that the same questions of fact and law arise in both the suits for the title of the plaintiffs in 0.
section No. 52 of 1944 was derived under a sale deed from the plaintiffs ' in 0.
section No. 14 of 1945.
Therefore the plaintiffs ' claim in the former suit will stand or fall on the plaintiffs ' title in the latter suit.
For that reason both the suits were heard together by the Subordinate judge and appeals arising from his common judgment by the High Court.
The learned Subordinate judge held on the evidence that the marriage of Bangaru Ammal with the Mannarkottai zamindar was in Asura form as Mannarkottai zamindar had spent Rs. 300/ to Rs. 575 for Bangaru Ammal 's marriage and that circumstance was in view of certain decisions of the High Court would make it an Asura marriage.
He further held that the aforesaid compromise decree was binding on the plaintiffs.
As regards C and C. 1 Schedule properties lie held that they had passed to Veerappa Chettiar under the compromise decree as part of the Thevaram Zamindari and that the plaintiffs were not in possession within 12 years of the suit in regard to item 70 of the C Schedule.
On those findings he dismissed O.S. No. 14 of 1945 with costs.
In O.S. 52 of 1944 he held that the plaintiff therein acquired a valid title as he purchased the land in dispute therein from the plaintiffs in the other suit who are the reversioners to the estate of Bangaru Ammal and that the decree in execution of which the said property was attached was not binding on the estate of said Bangaru Ammal.
In that view he decreed the said suit.
As against the decree passed in O.S. 52 of 1944, Veerappa Chettiar filed an appeal in the High Court of Madras being A.S. No. 816 of 1947.
As against decree in O.S. 14 of 1945 dismissing the 252 plaintiffs ' suit they filed an appeal to the High Court being A.S. 83 of 1948.
Veerappa Chettiar filed cross objections therein.
Both the appeals were heard together by the High Court.
The High Court held that in Bangaru Ammal 's marriage the practice of giving Kambu or flour or what is called the taking of Mappetti (millet flour box) before the betrothal was followed and that the marriage expenses were entirely borne by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties and therefore the marriage was Asura.
The High Court further held that under the compromise decree only Melwaram right in C and C. 1 Schedule properties passed to Veerappa Chettiar but as there was no clear evidence as to who was in actual possession of the said lands and as the persons in actual occupation of the land were not impleaded in the suit, it was necessary in the interest of the parties to reserve the right of the plaintiffs to recover possession of C and C. I Schedule lands in an appropriate proceedings instituted for the purpose.
In regard to item No. 70 of C. Schedule land the High Court agreed with the finding of the Subordinate judge.
The High Court also negatived the plea of limitation, with the result A.S. No. 816 of 1947 was dismissed with costs and A.S. No. 83 of 1948 subject to the said modification was dismissed with costs.
Hence the appeals.
Both the appeals were heard together as they raised common points.
The arguments of Mr. A.V. Viswanatha Sastri, the counsel for the appellant, may be summarised thus : The marriage of Bangaru Ammal with a Mannarcottai Zamindar was not held in Asura form and therefore the plaintiffs in O.S. 52 of 1944 being her father 's uncle 's grand children were not reversioners to her estate.
According to Hindu Dharamshastras the main distinction between Brahma, and Asura form of marriages is that while in the 253 former there is a gift of the bride, in the latter there is a sale of the bride.
Except a bare allegation in the plaints that the said marriage was held in Asura form the plaintiffs did not give any particulars or set tip any custom in the community to which the parties to the marriage belonged.
They have adduced evidence to the effect that a sum of Rs. 1,000/ was paid as parisam by the Mannarcottai Zamindar to the bride 's father for taking the bride but both the courts having rightly held that the said payment was not established by the evidence erred in making out a case of a different consideration for the marriage.
The first court held wrongly that the fact that Mannarcottai Zamindar spent Rs. 300/ to Rs. 575/for the marriage expenses would make it an asura marriage while the High Court went further and erroneously held that there was a general custom in the community to pay the bride 's price by way of giving Kambu grain and Kambu flour at the time of the settlement of marriage and that for the bridegroom 's party to bear the expenditure for celebrating the marriage and that in the case of Bangaru Ammal 's marriage the said Kambu was given and that the expenditure for the marriage was incurred by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties.
Apart from the fact that no such custom was pleaded, there was no evidence to sustain the said custom.
That apart the mere giving of Kambu as a ceremonial relic of the past or the bearing of the expenditure on the marriage wholly or partly by the bridegroom 's party could not be a bride 's price as contemplated by the Sastras, for the bride 's father in those events could not be said to have received any price for the bride.
In short the learned counsel attacks both the legal and the factual findings arrived at by the High Court.
The gist of the learned counsel for the Mr. Bheemasankaran 's contention may 254 be briefly stated thus: According to Dharam Shastras there were eight forms of marriage in Hindu Law, four approved and four unapproved.
But as centuries rolled by most of them became obsolete and at present there are only two forms of marriage, Brahmu and Asura.
Whatever may have been their comparative merits in the bygone days, they have now come to be recognized as two valid 1, forms of marriage that can be followed without any sense of inferiority by all the castes.
Though in remote antiquity the Asura form of marriage night have involved a real sale transaction, at present it would be enough to constitute such a marriage if a ritual form was observed indicating the consciousness of the community or the parties contracting the marriage that it was an Asura marriage.
This consciousness may be indicated by the ceremonial giving of Kambu at the time of betrothal or by the bridegroom 's party meeting the expenses wholly or substantially of the marriage.
Thai apart in the present case there is clear evidence that the practice in the community to which Bangaru Ammal and her husband belonged that Kambu is given by the bridegroom 's party to the bride 's party at the time of betrothal and the bridegroom 's party bears the expenditure of the marriage which clearly indicate that the bride 's father or in his absence by the bride 's relatives entitled to give her away in marriage get a clear benefit for giving the bride, and further there is evidence that the said practice was followed in the case of Bangaru Ammal 's marriage.
What is more to constitute a Brahmu marriage there should be a 'Kanyadhan ' but in this case it has been found that there was no 'Kanyadhan ' and therefore if the marriage of Bangaru Ammal could not have been in 'Brahma form ' it could have been only in the alternative form, namely Asura form.
Before we advert to the arguments advanced we would like to make some general observations.
255 We are not concerned here with the relatives importance of the said two forms of marriages at the present day but only with the conditions laid down by Shastras for the said two forms of marriage and with a question as to which form was adopted in Bangaru Ammal 's marriage.
Nor are we concerned with a question whether the institution of marriage in Brahmu form is now maintained in its original purity.
We are also in these appeals not concerned with any customary form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law.
But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law.
that is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration ' for the sale.
It may be mentioned that in this case the learned counsel for the respondents does not rely upon any custom even in the later sense but only on the practice obtaining in the community in support of the evidence that the said practice was followed in Bangaru Ammal 's marriage.
The main question therefore is what are the ingredients of an Asura form of marriage.
As the Manu Samhita has always been treated by sages and commentators from the earliest time as being of a paramount authority, let us look to it for guidance.
The following verses from Manu Samhita as translated by Manmatha Nath Dutt Shastri read as follows: CHAPTER III, Verse 21: They (different types of marriages) are known as the Brahma, Daiva A 'raha, Prajapatya, A 'sura, Gandharva, Rakshasa and Paisacha, which forms the eighth.
256 Verse 24: The four forms of marriage the seers have ordained as proper for Brahmanas : only the Rakshasa form as proper for Kshatriyas, and the A 'sura form as proper for Vais 'yas and S 'udras.
Verse 25: Thus out of these five forms of marriage, three are lawful, and two are sinful (unlawful).
Let a man never marry a wife either in the Pisacha or in the A 'sura form since these two forms are prohibited.
Verse 27: The form (of marriage) in which well attired bride, decorated with ornaments, is given in marriage to an erudite, good charactered bridegroom especially invited by the bride 's father himself to receive her, is called Brahma.
Verse 31: The form, in which the bridegroom, on paying money to her father and to herself, out of the promptings, of his own desire, receives the bride in marriage, is called A 'sura.
Verse 51 : An erudite father of a girl shall not take anything by way of Sulka from her bridegroom.
By taking a dowry out of greed, he becomes the seller of his off spring.
Verse 53: Even the acceptance of abovine pair (by the father of the bride from the bridegroom) is designated as a dowry by certain authorities, (the acceptance of) 257 a dowry be it costly, or be it of insignificant value, constitutes the sale of the girl.
Verse 54 : A marriage in which the bride 's relations do accept the dowry (voluntarily presented by the bridegroom 's father, etc.) is no sale (of the bride), since such a present is but an adoration of the bride done out of love or affection.
Verse 98 (of Chapter IX) Even a S 'udra must not take any price it.
duty or pecuniary consideration) for the hands of his daughter when giving her away in marriage.
Such acceptance of money constitutes a sale of the girl in disguise.
The gist of the verses is that before Manu Smriti came into existence the A 'sura form was considered to be proper for Vaishs and Sudras but it was prohibited for the Brahmins and Kashatriyas.
But Manu was emphatic that the said form of marriage was sinful for all castes including the Shudras.
There is no ambiguity in the verses in regard to the general prohibition to all castes ' for Verse No. 98 emphasizes that even a S 'udra must not take any price for the hand of his daughter when giving away in marriage.
The next question is what is the criterion of an A 'sura marriage according to Manu.
A contrast between the terminology in the definition of Brahma marriage and that of A 'sura marriage brings out clearly his intention.
The following words stand out in the definitions.
They are 'dana ' (giving) 'Kanyapradanam ' (the taking of the bride), "Dravina ' (wealth), 'dattava ' (after having given), 'Saktitah ' (as much as he can), 'Svacchandya ' (as according to his will).
The word 'Apradana ' is used in the 258 definition of A 'sura marriage in contradistinction to the word 'dana ' in Brahmu form of marriage, while a, in the Brahmu form of marriage the father makes a gift of the bride, in the A 'sura form the bridegroom takes the bride otherwise than by a gift.
In the former the father gives the bride decorated with ornaments, while in the latter the bridegroom takes the bride after giving wealth to the father of the bride and the bride.
While in the former the father voluntarily gives the bride in the latter the bridegroom out of his own will pays as much money as he can to the father and takes his bride.
The words Saktitah ' and 'Svacchandya ' imply that the payment is made because the bridegroom can and the girl is taken because he wills that is to say a bridegroom who seeks the hand of a bride takes her as he can afford to buy her from her father.
The transaction is equated to that of a sale, for all the ingredients of sale were present.
If there is any ambiguity that is dispelled by Verse 51 and Verse 54.
In Verse 51 Manu makes it clear that by taking a dowry out of greed the father becomes the seller of his off spring. 'Sulka ' means the taking of a gratuity or price.
The expression 'dravina ' in Verse 31 is clarified by the use of the word 'Sulka ' in Verse 51.
What is prohibited is Sulka or the price for the bride.
Verse 54 brings out the distinction between 'Sulka ' or 'dravina ' paid by the bridegroom as a price for the bride and the dowry given for the bride as a present out of love or affection or in adoration of the bride.
Verse 98 further empbasizes that what Manu prohibits is the sale of a bride for price.
A 'sura marriage, according to Manu, is a transaction of sale in which the girl is sold for a price.
Practically the same meaning though expressed in different phraseology is given by other Hindu Law givers.
The following translations given by Max Muller in the "Sacred Books of the East ', of 259 the various sages may now be extracted Baudhayana text 1, II, 20 (7) '(If the bridegroom receives a maiden) after gladdening (the parents) by money (that is) the rite of the Asuras (asura). ' Verse 2 : 'Now they quote also (the following verses) It is declared that a female who has been purchased for money is not a wife.
She cannot (assist) as sacrifices offered to the Gods or the manes.
Kasyapa has stated that she is a slave. ' Baudhayana Prasad Adhyaya 11, Kandika 21 Verse 3 : 'Those wicked men who, seduced by agreed, give away a daughter for a fee, who (thus) fall (after death) into a dreadful place of punishment and destroy their family down to the seventh (generation).
Moreover they will repeatedly die and be born again.
All (this) is declared (to happen), if a fee (is taken ).
, Vasishtha Chapter I Verse 35. 'If, after making a bargain (with the father, a suitor) marries (a damsel) purchased for money, that (is called) the Manusha rite. ' Narada Chapter XII Ver8e 42.
When a price is (asked for the bride by the father and) taken (by him), it is the form termed Asura. 'Gautama, 'Chapter IV Verse 11.
The form of marriage in which a bride is purchased for money, is called the A 'suram. ' 260 Vishnu Chapter XXIV Verse 24.
If the damsel is sold (to the bridegroom), it is called an Asura marriage. 'Yagngavalkya ' : 'The asura by largely giving of money ; the Gandharva by mutual consent; the Rakshasa by forcible taking by waging war and Paisacha by deceiving the girl ' Translation of Srisachandra Vidyaamava : 1918 Edition page 126 : In the Mitakshara the said text is commented upon thus : .lm15 " The Asura marriage is that in which money is largely given (to the father and others in exchange for the girl).
'Apastamba ':"If the suitor pays money (for his bride) and marries her (afterwards) that (marriage is called) the Asura rite. ' 'Kautilya ': Arthasastra: Sulkadanat Asura ' the word used is "Sulka" Medhatithi, in his commentary on Verse 54 of Manu Samhita points out that the receipt of money or money 's worth for the benefit of the girl (Kanyarthe) does not amount to her sale, and is desirable as it tends to enhance her self esteem and also raises her in the estimation of others, and concludes with the observation that receipt of a dowry for the girl (kanyartham danagrahanam) is prescribed by thus stating the good arising from it (arthavadena) : Vide at 772.
Apte 's Dictionary : page 239 : Col. III.
Asura is explained thus : 'One of the eight forms of marriage in which the bridegroom purchase ; the bride from her father or other paternal kinsmen ' Manu 331 and Yagnayavalkya 1.61 are cited 261 The said sages and commentators accepted the view expressed by Manu and in effect described A 'sura marriage as the transaction where a bridegroom purchases a girl for a price paid to the father of the girl or to kinsmen who are en titled to give her in marriage.
The distinction between the bride 's price and the presents to the bride is also recognized.
The learned judges of the High Court relying upon the text of Apasthamba observed that 'the payment to the bride 's father is for the purpose of complying with Dharma and not as a consideration for an commercial transaction.
The interpretation may explain away on Dharmic principles the sordid nature of the transaction, but does not detract from its essential incidents.
We, therefore, hold that A 'sura marriage is nothing more than a transaction of marriage whereunder a bridegroom takes a bride for the price paid by him to the bride 's father or others entitled to give her and therefore in substance it is a sale of the bride.
It is said that the incurring of the expenditure of the marriage by the bridegroom is also a consideration for giving the bride.
In this context reliance is placed on the Law and Custom of Hindu Castes by Arthur Steel.
This book was written in 1868.
The author appears to have collected the laws and customs obtaining in the Presidency of Bombay, and had compiled them for the purpose of convenience of reference.
At page 24 the author says: 'There are eight kinds of marriages recognized in the Sastras : 1, Brahm, where the charges are incurred solely by the girl 's father; x x x x x 5, Usoor, where she is taken in exchange for wealth, and married; this species is peculiar in the Wys and Soodra castes, B.S.(Mit), See Munoo, 3.20,34.
It is considered as Uscorwiwuha, and stree soolk, and the money, if unpaid, is an unlawful debt, B 2, 199.
The definition of Asura by the author does not carry the matter further, for it is consistent with that 262 given in the Hindu law Texts but what is relied upon is his definition of Brahmu marriage as one where charges are incurred solely by the girl 's father.
From the said definition a converse proposition is sought to be drawn viz : that marriage would be Asura marriage if the charges were incurred mainly by the bridegroom 's father.
Firstly the definition of Brahmu marriage by the learned Author does not conform with the definition of the said marriage by the lawgivers.
Secondly it does not follow from the passage that if the bridegroom 's father incurs the expenditure the marriage is an Asura marriage.
If that be so, the author would have stated in his definition of Asura marriage that such incurring of the expenditure would make a marriage an Asura marriage.
This valuable compilation of the laws and customs of the day does not throw any light on the question now raised before us.
Let us now see whether there is any merit in the contention that the concept of sale for a price has by progress of time lost its content and that at the present time a mere form of sale irrespective of a real benefit to the bride 's father would meet the requirements of an Asura , marriage.
No text or commentary taking that view has been cited to us.
Indeed the case law on the subject does not countenance any such subsequent development.
The earliest decision on the subject cited to us is that ofthe Divisional Bench of the Bombay High Court "Jaikisondas Gopaldas vs Harkisondas Hulleshandas '.Green j, defines the Asura marriage at page 13 'The essential characteristic of the Asura form ofmarriage appears to be the giving of money or presents by the bridegroom or his family to the father or parental kinsmen of the bride,, or, in tact, a sale of the girl by her father or other relation having the disposal of her in marriage in (1) Bom.
9. 263 consideration of money or money 's worth paid to them by the intended husband or his family. ' In 'Vijarangam and Damodhar vs Lakshuman and Lakshmi ' (1) West j .
gives in interesting background to the origin of the institution of the Asura marriage and observes: "Of the several Shastras called by the plaintiffs and the defendants in this case, all agree that the giving and receiving of money for the bride is the distinctive mark of the Asura form of marriage.
" In 'Muthu Aiyar vs Chidambara Aiyar, the money was paid by the bridegroom 's people to the bride 's father to meet expenses of marriage.
The Subordinate judge found on the evidence that the bride 's father received the money for his own purposes and not for bride 's benefit and therefore the marriage was an Asura one.
The High Court in a short judgment accepted the finding and said.
"it being found that a money payment was made to Thailu 's father we are not prepared to differ from the courts below in their opinion as to the nature of the marriage.
" This decision is relied upon in support of the contention that where the bridegroom incurs the expenditure of the marriage such a marriage is Asura marriage.
But this decision is not a considered one.
The appeal being a second appeal, the learned judges accepted the finding of fact given by the Subordinate Judge, namely that the money payment was made to the bride 's father and were not prepared to differ from it.
The disinclination of the learned judges to interfere in the second appeal on a question of fact cannot throw any light on the point that has directly arisen before us.
Chandavarkar J. in 'Chunilal vs Surajram '(3) accepted the aforesaid definition when he said: 'Where the person who gives a girl in marriage received (1) (1871) 8 Born.
F. C. Reports 244.
(2) (3) Bom.
264 money consideration for it, the substance of the transaction makes it, according to Hindu Law, not a gift but a sale of the girl.
The money received is what is called bride price; and that is the essential element of the Asura form.
The fact that the rites prescribed for the Brahmu form are gone through cannot take it out of that category, if there was pecuniary benefit to the giver of the girl.
The Hindu law givers one and all condemn such benefit and the Shastras, regarding it as an ineradicable sin, prescribe no penance for the sale of a bride.
" The learned judge also accepted the presumption that every marriage under the Hindu Law is according to the Brahma form but it can be rebutted by evidence.
In 'section Authikesavulu Chetty vs section Ramanujan Chetty ' (1) at the betrothal ceremony a married woman of the caste to which the parties belonged proceeded from the bridegroom 's house to the house of the bride carrying certain presents consisting of cocoanuts, betel and nut, garlands, black beads, saffron red powder, etc.
in a tray.
There was also a pagoda and a fanam in it.
There was also an arrangement at that time that the bridegroom 's father had to pay certain amount to the bride and the bride 's father had also to give some jewels to the bridegroom.
It was contended that the marriage was an Asura marriage.
The learned judges said that the distinctive mark of the Asura marriage was the payment of money for the bride, and that the payment of a pagoda and 2 1/2 annas could not have been intended to be the consideration for the bride where the bride 's father spent thousands of rupees himself and gave presents of considerable value to the bride and the bridegroom.
This decision, therefore, emphasises that mere payment of small amounts as a compliment to one of the parents cannot be treated as a consideration for the sale of the bride.
It also lays down that all the circumstances of the case will have to be looked into to ascertain whether any amount was paid as price for the bride.
(1) Mad.
265 A Divisional Bench of the Madras High Court in 'Gabrielnathaswmi vs Valliammai Ammal ' (1) negatived the contention that the mere fact that a bride 's parents received what is known as 'parisam ' it would lead to the conclusion that the marriage of the girl took place in Asura form and not in Brahma form.
The learned judges observed: "It may be that parisum is a relic of what in old days was regarded as the price for the bride.
x x x x The real test is whether in the community or among the parties the payment of 'parisam ' was tacitly understood as being substantially a payment for taking the girl in marriage.
That will depend generally upon the evidence in the case.
" They also reaffirmed the presumption under Hindu Law in; the following words : 'Ordinarily the presumption is that whatever may be the caste to which the parties belong, a marriage should be regarded as being in the Brahma form unless it can be shown that it was in the Asura form '.
This decision deals with 'parisam ' with which we are also concerned in these appeals.
This is an authority for the proposition that the use of the word 'parisam ' is not decisive of the question that it is a bride 's price, but that it must be established in each case whether the payment small or large, in cash or kind, is made as a bride 's price i. c. as consideration for the bride.
In "Ratnathanni vs Somasundara Mudaliar" (2) a sum of Rs. 200/ was paid to the bride 's mother for the expenses of the marriage as a term of the contract of the marriage.
On that finding Ramesam. ' J. concluded that the payment was made for the benefit of the bride 's mother as in the absence of the payment, she would have had to find the amount in some other way, by borrowing or pledging her jewels or other properties and therefore the marriage was in Asura form.
The learned judge relied upon Steel 's observation that the parents should incur the expenditure of the marriage in the Brahma form and presumably (1) A.I.R. 1920 Mad. 884.
(2) 266 drew a contrary inference that if the bridegroom 's party met the expenditure it would be an Asura marriage.
The learned judge also relied upon that decision in 'Muthu Aiyar vs Chidambara Aiyar '(1).
Spencer, J. in a separate judgement agreed with him.
As we have pointed out we do not see any justification in the Hindu Law texts in support of the view that the bearing of the expenditure of the marriage by the bridegroom is a test of an Asura marriage.
The fact that the expenditure of the marriage is borne by bridegroom 's party cannot in any sense of the term be a consideration given to the father for taking the bride.
Ramesam J. sitting singly in 'Samu Asari vs Anachi Ammal ' (2) restated his view in a more emphatic form.
He observed: 'It seems to me immaterial whether it is the whole of the expenses of the marriage or a substantial portion of it.
To the extent the bride 's father gets contribution of that kind from the bridegroom 's father, he benefits by it; though he does not pocket it, but he spends for the marriage. .
At the same time the learned judge observed that under certain circumstances payments made to the bride 's parents which are either small or relatively small having regard to the scale in which the expenses of the marriage are incurred do not make a marriage an Asura marriage.
This decision therefore makes a distinction between courtesy presents given to the bride 's parents and whole or substantial portion of the expenditure incurred by the bridegroom 's father.
While we agree that courtesy presents to the bride 's parents cannot by themselves conceivably make a marriage an Asura one, we find it difficult to hold that the incurring of expenditure by a bridegroom satisfies the test of consideration for the bride.
In 'Kailasanatha Mudaliar vs Parasakthi Vadivanni ', (3) Varadachar J., speaking for the (1) (2) (3) Mad.
267 Court lays down the test of the Asura marriage in the following manner : "The distinctive feature of the Asura form of marriage is the giving of money or money 's worth to the bride 's father for his benefit or as consideration for his giving the girl in marriage.
" The learned judge distinguishes the case of "Samu Asari vs Anachi Ammal ' (1) on the ground that there money was held to have been paid for the father 's benefit though utilized by him to meet the expense of the marriage which he must have defrayed out of his own fund and points out also the distinction between payment to the father for his own benefit and payments to the bride received by kinsmen not for their own use.
In that case a jewel was presented by the bride 's father and placed on the bride 's neck at the time of the betrothal ceremony as ' parisam ' and the value of the jewel was not even the subject of a bargain but merely left to the pleasure of the bridegroom 's father.
The learned judge observed that such a gift could in no sense be called bride 's price.
In 'Sivangalingam Pillai vs K. V. Ambalavana Pillai, (2) the bride 's father gave a large amount and also jewels to the bride and plaintiff 's brother in law on behalf of the bridegroom gave the bride 's father a present of Rs. 1,000/ and a cloth worth Rs. 65/ .
It was also agreed that all the expenses of the marriage should be borne by the bridegroom.
It was contended that the said presents and the incurring of expenditure on the marriage was a consideration for the bride and therefore the marriage was in an Asura form.
The Divisional Bench rejected the contention.
Pandrang Row J. observed at page 481: "It is a well known fact that, whatever the custom is, the bridegroom and his people also spend a considerable sum of money in respect of the marriage whenever they can afford it.
Such expenditure obviously does not convert the marriage which is otherwise in the Brahma form into one which is in (1) (2) A.I.R. 1938.
479. 268 the Asura form.
" The learned judge proceeded to state at page 480 thus : "So far as our Presidency is concerned, all marriages among Hindus are presumed to be in the Brahma form unless it is proved that they were in the Asura form; in other words, it is incumbent on the party who alleges that a particular marriage was in the Asura form to prove that bride price was paid in respect of the marriage by the bridegroom or his people to the bride 's father" and the present given to the bride 's father the learned judge remarked that this customary present would not necessarily amount to payment of bride 's price.
Abdur Rahman J., added that 'if a party wishes to assert that the marriage was Asuric in form, he must establish that some price was paid for the bride in pursuance of either of an express or implied contract to the bride 's father or on his account.
" This judgment we may say so with respect puts the principle on a correct legal basis and brings out in bold relief the distinction between bird 's price on the one hand and the presents and the expenditure incurred in respect of the marriage by one or the other of the parties on the other hand Patanjali Sastri J., in 'V.S. Velavutha Pandaram vs section Suryamurthi Pillai ' (1) approached the case if we may say so from a correct perspective.
There a sum of Rs.500/ was paid by the bridegroom to the bride 's father for the specific purpose of making jewels for the bride in pursuance of a stipulation for such gift as a condition of giving the girl in marriage.
The learned, judge held that the said payment was not bride 's price and did not make the marriage an Asura marriage.
The learned judge in passing referred to the case of 'Samu Asari vs Anachi Ammal ' (2), and observed as follows : " 'As the father was benefitted by such contribution in that he was relieved to that extent from defraying such expenses (1) (2) 269 himself, the marriage was one in the Asura form.
This view has been criticised in the latest edition of Mayne 's Hindu Law as not really warranted by the Hindu Law texts, and the point may have to be reconsidered when it arises.
" Patanjali Sastri, J., again considered this point in Second Appeal No. 2272 of 1945.
There on the occasion of the marriage one sovereign was given along with the other presents to the bride 's father as Memmekkanoni.
The question was whether the mere adoption of this customary form per se brought the marriage within the category of an Asura or unapproved marriage.
The learned judge expressed the view that the payment of memekanom no longer signifies in substance and in truth consideration for the transfer of the girl but has survived as a token ceremonial payment forming part of the marriage ritual.
The said judgment was confirmed by a Divisional Bench of the said High Court in 'Vedakummpprath Pillai Muthu appellant vs Kulathinkai Kuppan '.
(1) Balakrishna Ayyar, J., speaking for the Bench neatly summarised the law on the subject at page 804 thus : "One essential feature of an Asura marriage, the feature which makes the form objectionable, is that the father of the bride receives a gratuity or fee for giving the girl in marriage.
Ordinarily, it would be expected of every decent and respectable father when he selects a husband for his daughter to make his selection uninfluenced by any considerations other than the welfare of the girl.
But when he receives a payment for his personal benefit, a very objectionable factor would influence his selection and it is clearly this which the ancient lawgivers took objection to and therefore relegated the form to the category we call 'disapproved '.
When the father accepts money and allows his greed or avarice to sway his judgment, he thereby converts what is intended to be a sacrament into a commercial transaction.
" With respect we are in full agreement with the observations of the learned judge.
Commenting upon the (1) 270 argument built upon the payment of one sovereign to the bride 's father the learned judge observed : "In most, though not necessarily in all cases, the payment has lost all its original significance and survives only as a ritualistic form '; it has become a ceremonial symbol devoid of any content or meaning or purpose.
x x x x Now when a father gives such a large amount as stridhanam and receives one sovereign in compliance with traditional form it would be very wrong to say that he had been selling or mortgaging the girl and that he received the sovereign from greed or love of gain.
" The foregoing discussion leads to the following results .
Under Hindu Law marriage is a sacrament and it is the religious duty of the father to give his daughter in marriage to a suitable person but if he receives a payment in cash or in kind as a consideration for giving his daughter in marriage he would be converting a sacrament into a commercial transaction.
Brahma marriage satisfies the said test laid down by Hindu Law.
But from Vedic times seven other forms of marriage were recognized based on custom and convenience.
Asura form is one of the eight forms of marriage.
The essence of the said marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society.
The vice of the said marriage lies in the receipt of the price by the bride 's father or other persons entitled to give away the bride as a consideration for the bride.
If the amount paid or the ornaments given is not the consideration for taking the bride but only given to the bride or even to the bride 's father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an A 'sura marriage.
There is also nothing in the texts to indicate that the bearing 271 of the expenditure wholly or in part by the, bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride 's father or others entitled to give her in marriage do not take any consideration for the marriage, or any way benefit thereunder.
The fact that the 'bridegroom 's party bears the expenditure may be due to varied circumstances.
Prestige, vanity, social custom, the poverty or the disinclination of the bride 's father or some of them may be the reasons for the incurring of expenditure by bridegroom 's father on the marriage but the money so spent is not the price or consideration for the bride.
Even in a case where the bride 's father though rich is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride.
Though in such a case if the bridegroom 's father had not incurred the said expenditure in whole or in part, the bride 's father might have to spend some money, on that account such as indirect result could not be described as price or consideration for giving the bride.
Shortly stated Asura marriage is a marriage where the bride 's father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage.
The test is two fold: There shall not only be a benefit to the father, but that benefit shall form a consideration for the sale of the bride.
When this element of consideration is absent, such a marriage cannot be described as Asura marriage.
As the Asura marriage does not comply with the strict standards of Hindu Law it is not only termed as an unapproved marriage, but it has been consistently held that whenever a question arises whether a marriage is a Brahmu or Asura, the presumption is that the marriage is in Brahma form and the burden is upon the person who asserts the con trary to prove that the marriage was either an Asura or any other form.
272 With this background let us look at the facts of the case.
Though in both the plaints it is stated that Bangaru Ammal had been married in Asura form, no particulars are given but in the evidence the plaintiff 's witnesses in one voice depose that the custom in the Rakambala caste to which Bangaru Ammal and her husband belonged, is to give money in the shape of 'parisam ' to the bride 's father at the time of the betrothal.
The witnesses who depose to Bangaru Ammal 's marrage say that at the time of her betrothal a sum of 1,000/ was paid as ' parisam '.
Both the Courts did not accept this evidence and they held that it had not been established that a sum of Rs. 1,000/ was paid as 'parisam ' at the time of the betrothal of Bangaru Ammal.
This finding is not attacked before us.
It is argued that the evidence discloses that there is a practice in the said caste to give Kambu as IT parisam ' to the bride 's father as a bride 's price and the said practice supports the evidence that in the case of the marriage of Bangaru Ammal also such a 'parisam ' was paid as consideration for the marriage.
On the question of the said alleged practice the evidence does not support it.
P. W. I to P. W. 10 depose.
that "parisam ' is paid in cash for marriages in their community varying from Rs. 150/ to Rs. 1,000/ .
This evidence has been rightly ' disbelieved by both the courts.
The evidence does not bear out the case of giving of 'parisam ' in Kambu.
Some of the witnesses also depose to the payment of Rs. 1000/ as 'parisam ' at Bangaru Ammal 's marriage but that was not accepted by the courts.
The evidence destroys the case that 'parisam ' was paid at her marriage in Kambu.
No witness examined in the two cases says that Kambu is paid at the marriages of the members of the community or was paid at the time of Bangaru Ammal 's marriage as a consideration for the marriage but it is said that the witnesses who had been 273 examined in the earlier suit whose evidence has been marked by consent in the present case deposes to that fact.
Errammal, the mother of Bangaru Ammal, whose evidence is marked as P. 11 (R) deposes that when Thevaram Zamindar married her the 'parisam ' was only Rs. 1,000/ and that when her daughter was married, the 'parisam ' was also Rs. 1000/ .
In cross examination she says that according to the custom of the community, it is the practice to bring a mapelli for the nischithartham (betrothal function) and it is customary also to bring cumbu and flour at the time of the marriage and sprinkle it in the marriage hall.
This evidence indicates that the 'parisam ' is only given in cash but Kambu is brought at the time of the marriage and sprinkled in the marriage hall presumably for the purpose of purification.
This evidence does not show that Kambu is given as "parisam ' for taking the bride.
Sermalai Naicker who gave evidence in an earlier suit which is marked as P. 11 (a) belongs to Rajakambala caste.
In his chief examination he says that he paid Rs. 200/ as 'parisam ' at the time of the marriage and paid Rs. 300/ as "parisam ' for the marriage of his son and received Rs. 200/ as 'parisam ' for the marriage of his daughter.
In cross examination he says that on the betrothal day only one kalam of cumbu and cash are given to the bride 's party and that the Kambu is used by the bride 's people and that at the time of the marriage 3 or 4 marakkals of cumbu are again brought which is thrown over the bride and the bridegroom byway of blessing.
He adds that throwing of the kambu is a ritual in marriage ceremonies and that Kambu and cash are called "Parisam '.
This evidence brings out the distinction between cash paid as the 'Parisam ' and Kambu brought to conform with the traditional ritual.
274 R.W. 3 in the earlier suit whose evidence is marked as D. 317 says that he was a guru of the Rajakambala caste and that he performed the marriage of Moolipatti zamindar.
He further says that Kambu is taken by the bridegroom 's party to the bride 's house when the betrothal takes place and that seven pieces of jaggery, a cloth etc. are also taken and that no money is given in the caste.
We do not see how this evidence supports the practice of paying kambu as 'parisam '.
indeed his evidence shows that Kambu is taken only as a part of the ritual and he is definite that no 'parisam ' is paid in the caste.
Ramasami Naicker Zamindar of Ammaianaickoor.
was examined in the previous suit and his evidence is marked as D 416.
He is definite in the chief examination that no 'parisam ' is paid in his community.
He says that it is rather undignified to receive 'Parisam ' and that he has not seen any parisam paid in his caste.
Whether this witness is speaking truth or not, his evidence does not support the plaintiff.
From the aforesaid evidence it is not possible to hold that either there is a practice in the Rajakambala family to give Kambu as 'parisam ' for the bride or kambu was paid as 'parisam ' at the time of the betrothal ceremony in connection with Bangaru Ammal 's marriage.
Reliance is placed upon Nelson 's Manual of the Madhura Country published in 1.865.
At page 82 of Part II in that /Manual the following passage appears : "After this, the price of the bride, which consists usually of 7 kalams of kambu grain, is solemnly carried under a canopy of white cloth towards the house of the bride 's father 275 its approach being heralded by music and dancing.
The procession is met by the friends of the bride who receive the price, and allege together to the bride 's house.
" Similarly, in Thurston 's Castes and Tribes of Southern India published in 1902 in Volume VII under the heading 'Thotti Naickers ' at page 192, the following passage is given "The bride price is 7 kalams of Kambu and the couple may cat only this grain and horsegram until the wedding is over.
" The evidence adduced in this case does not support the said statement.
Even if those formalities are observed, they are only the relics of the past.
That practice represents only a symbolic ritual which.
has no bearing upon the reality of the situation.
Indeed the witnesses in the present case realizing the ritualistic character of the said observances seek to base the case of the Plaintiffs on a more solid foundation but have miserably failed in their attempt.
These passage s therefore do not help the plaintiffs.
The next question is whether the expenditure for the marriage was incurred by the bridegroom 's party i. e. by the Mannarcottai Zamindar.
The learned Subordinate judge held on the evidence that Thevaram Zamindar spent a large amount of money for the marriage but the Mannarcottai Zamindar also spent a sum of Rs. 300/ or Rs. 575/ for the marriage expenses.
He expressed the view that if the matter was res integra, he would have held that the incurring of such an expenditure by the bridegroom 's party would not have made the marriage.
an Asura marriage but felt bound by some of the decisions 276 of the Madras High Court to come to the opposite conclusion.
The learned judges of the High Court came to the conclusion that the marriage expenses in their entirety were borne by the Mannarcottai Zamindar and it must have been either in pursuance of the custom or arrangement among the community.
The evidence as regards the custom of the bride groom 's party incurring the expenses of the marriage is unconvinc ing.
Indeed the learned counsel for the respondent does not rely upon custom but he prefers to base his case on the finding of the High Court that the entire marriage expenditure was incurred by the Mannarcottai zamindar.
Let us now consider the evidence in this regard in some detail.
P.W. 1 says in his evidence that Bangaru Ammal was the only child of the Thevaram Zamindar, that he was very affectionate to her and that he spent heavily for the marriage though he was not able to say how much he spent.
P. W. 4 also says that Thevaram Zamindar gave her lot of jewels and finally gave her his entire estate.
The evidence that Thevaram Zamindar spent large amounts on the marriage and gave lot of jewels to Bangaru Ammal must be true, for even in 1895 when the marriage of Bangaru Ammal took place it is inconceivable that the marriage would have been celebrated with a few hundred rupees that was given by the Mannarcottai zamindar.
He must have spent much larger amount than that consistent with his status and position in life and particularly when he was celebrating the marriage of his only daughter.
Now coming to the documentary evidence in support of the contention that Mannarcottai Zamindar met the entire expenditure, the respondents relied upon P. , P. and P. is a letter dated August 8, 1885, written by persons representing the Mannarcottai zamindar to the 277 Thevaram Zamindar office.
Therein he stated :"You should soon get ready there all the materials and samans for the shed and 'Panthal ' in connection with muhurtham.
We will start and come without fail".
This letter does not show that Mannarcottai Zamindar gave the money for the materials and samans for the said 'Panthal '.
It was only an intima tion that everything should be made ready for the marriage as Mannarcottai people would be coming there without fail.
Exhibit P. 23 is the account of expenditure incurred on Bangammal 's marriage from 1.9.1895 to 5.9.1895.
It is said that it represents the amount spent on behalf of Mannarcottai zamindar and the amount recouped from him.
The document is not very clear.
The account does not appear to represent the entire expenditure incurred at the time of marriage because the entry about charges for pounding 50 kalams of paddy shows that 50 kalams of paddy must have been supplied from Thevaram stores and there is nothing on the account to show that 50 kalams were purchased on Mannarcottai account.
Be that as it may this account only shows that Mannarcottai zamindar paid about Rs. 300/ but the learned counsel for the respondents argued relying upon exhibit P. 27 that even the balance of Rs. 295/14/in exhibit P. 23 shown as the excess amount spent by Thevaram Estate was paid off by the Mannarcottai zamindar to the Thevaram Zamindar.
Exhibit P. 27 is an entry dated September 30, 1885 in the account book of Thevaram Zamindar.
It show that the Maha raja meaning Thevaram Zamindar gave to Thevaram office Rs. 290.
It does not establish the respondent 's version.
The only merit of the contention is that the two figures approximate each other.
If that figure represents the amount paid by Mannarcottai Zamindar to Thevaram in full discharge of the amount due from the former to the latter, the entry would have run to the effect that the balance of the amount due from Mannarcottai under Ex.p.23 was paid and it would have been credited in Mannarcottai 278 account.
It may have been that the sum of Rs. 290/was the balance out of the amount that Thevaram Zamindar took with him when he went to Mannarcottai for meeting his expenditure.
The other accounts P. 25 and P. 26 filed in the case are neither full nor clear and no definite conclusion could be arrived at on the basis of the said account.
We therefore hold on the evidence and probabilities that Thevaram Zamindar had spent large amounts in connection with the marriage and Mannarcottai zamindar spent only about Rs. 300/ in connection with the said marriage.
Such a finding does not bring the marriage within the definition of Asura marriage as explained by us.
earlier.
The expenditure incurred by the bridgegroom 's party was not and could not have been the consideration for the Thevaram Zamindar giving his daughter in marriage.
It is contended that the High Court found that there was no 'Kanyadhan ' at the time of the Bangaru Ammal 's marriage and as 'Kanyadhan ' was necessary ingredient of Brahmu marriage, Bangaru Ammal could not have been married in that form.
The High Court relying upon the evidence of Veluchami Naicker who is stated to be the Guru of the caste held that 'Kanyadhan ' had not been observed in Bangaru Ammal 's marriage.
The learned counsel for the appellant contests the correctness of the finding and he relies upon some invitations in support of his contention that 'Kanyadhan ' was observed in Bangaru Ammal 's marriage but the documents are not clear on the, point.
The Guru only narrates some of the ceremonies held in marriages in the community but he does not expressly state that the ceremony of 'Kanyadhan ' was not observed at Bangaru Ammal 's marriage.
In this state of evidence the presumption in.
Hindu Law that the marriage was performed in Brahmu form must be invoked.
As we have pointed out under the Hindu Law whether a marriage was in Brahmu form or Asura form the Court will presume 279 even where the parties are Shudras that it was in the Brahmu form.
Further where it is proved that the marriage was performed in fact the Court will also presume that the necessary ceremonies have been performed.
See 'Mauji Lal vs Chandrabati Kumari '(1).
This presumption has not been rebutted in this case.
That apart the argument of the learned counsel for the respondents mixes up an essential ingredient of the Brahmu marriage, namely the gift of the girl to the bridegroom with a particular form of ritual adopted for making such a gift.
In both forms of marriages a girl is given by father or in his absence by any other person entitled to give away the girl to the bridegroom.
In the case of Brahmu marriage it takes the form of a gift while in the case of Asura marriage as price is paid by the bridegroom, ,it takes the form of a sale.
As we have held that in Bangaru Ammal 's marriage no consideration passed from the bridegroom to the bride 's father, the father must be held to have made a gift of the girl to the bridegroom.
To put in other words there was 'Kanyadhan ' in Bangaru Ammal 's marriage.
We therefore reject this contention.
Lastly reliance is placed on the conduct of the appellant in not questioning the correctness of the finding given by the learned Subordinate judge in his application for delivery that the marriage was in Asura form.
The learned counsel for the appellant sought to explain his conduct but in our opinion nothing turns upon it.
If the marriage was not in Asura form as we held it was not, the conduct of the appellant could not possibly make it an Asura marriage.
In this view it is not necessary to give opinion on the other questions raised in the appeals.
In the result the decrees of the High Court are set aside and both the suits are dismissed with costs throughout.
One hearing fee.
Appeals allowed (1) (1911) L.R. 38 I.A.122.
[/INST]The main question involved in both the appeals was whether the marriage of Bangaru Ammal was in Asura form or in Brahma form.
The contention of the appellant was that it was not in Asura form.
Except a bare allegation in the plaint that the said marriage was held in Asura form, the plaintiffs did not give any particulars or set up any custom in the community to which the parties to the marriage belonged.
They had given evidence that 'a sum of Rs. 1000 was paid as 'Parisam ' to the father of bride but that evidence had been rejected by both the courts.
Respondents pointed out to the giving of Kambu by bridegroom 's party to the bride 's party at the time of betrothal and expenditure of Rs. 300/ by bridegroom 's party in connection with the marriage of Bangaru Ammal and maintained that it was Asura marriage.
Held, that the marriage of Bangaru Ammal was not in Asura form but in Brahma form.
There was nothing to show that there was a practice in the family to give Kambu as 'Parisam for the bride or Kambu was paid as 'parisam ' at the time of the betrothal ceremony in connection with the marriage of Bangaru Ammal.
The father of the bride had spent large amounts and the bridegroom 's party had spent only about Rs. 300/ in connection with the said marriage.
The expenditure incurred by the bridegroom 's party was not and could not have been the consideration for the father giving his daughter in marriage.
There is a presumption in Hindu Law that every Hindu marriage is in Brahma form and that pre sumption has not been rebutted in this case.
The court was entitled to presume that the necessary ceremony of Kanyadan must have been performed.
As no consideration passed from the bridegroom to the father of the bride, the father must be held to have made a gift of the girl to the bridegroom.
245 The essence of the Asura marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society.
The vice of the said marriage lies in the receipt of the price by the bride 's father or other persons entitled to give away the bride as a consideration for the bride.
If the amount paid or the ornament given is not the consideration for taking the bride but only given to the bride or even to the bride 's father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an Asura marriage.
There is also nothing in the texts to indicate that the bearing of the expenditure wholly or in part by the bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride 's father or others entitled to give her in marriage do not take any consideration for the marriage, or in any way benefit thereunder.
The fact that the bridgeroom 's party bears the expenditure may be due to varied circumstances.
Prestige, vanity, social custom, the poverty or the disinclination of the bride 's father or some of them may be the reasons for the incurring of expenditure by bridegroom 's father on the marriage but the money so spent is not the price or consideration for the bride.
Even in a case where the bride 's father, though rich, is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride.
Though in such a case if the bridegroom 's father had not incurred the said expenditure in whole or in part, the bride 's father might have to spend some money on that account, such an indirect result could not be described as price or consideration for giving the bride.
Asura marriage is a marriage where the bride 's father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage.
The test is two fold.
There shall not only be a benefit to the father, but that benefit shall form a consideration for the sale of the bride.
When this element of consideration is absent, such a marriage cannot be described as Asura marriage.
Jaikisondas Gopaldas vs Harikisandas Hulleshandas Born.
9, Vijarangam vs Lakshman, (1871) 8 Born.
H. C. Report.
244, Muthu Aiyar vs Chidambara Aiyar, , Chunilal vs Surajram, (1909) I. L.R. 33 Born.
433, section Authikesayulu Chetty vs section Ramanvjan Chetty" (1909) 1.
L. R. , Gabrielnathaswami vs Valliammai Ammal, A. 1.
R. , Ratnathanni vs Somasundara 246 Mudaliar, , Samu Asari vs Anachi Ammal, ; Kailasanath Mudaliar vs Parasakthti Vadivanni, Mad. 488, Sivangalingam Pillai vs K. V. Ambalayana Pillai, A. 1.
R. ; V. section Velavutha Pandaram vs section Suryamurthi Pillai (1941) 2 M. L. J. 770 and Vedakummapprath Pillai vs Kulathinkai Kuppan, , referred to.
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<s>[INST] Summarize the judgementminal Appeal No. 3 of 1972.
Appeal by special leave from the judgment and order dated January 25, 1971 of the Madhya Pradesh High Court, Indore Bench in Criminal Appeal No. 391 of 1969.
section K. Gambhir, for the appellant.
M. N. Shroff, for the respondent.
The, Judgment of the Court was delivered by Beg, J. Shiv Govind, the appellant , has obtained Special.
Leave to appeal against only that part of the Judgment and order of the High Court of Madhya Pradesh by which his sentence of one, year 's Rigorous Imprisonment, passed by the Additional Sessions ' Judge, Indore, upon a conviction under Section 366 Indian Penal Code, was enhanced to seven years ' Rigorous Imprisonment 836 and a fine of Rs. 100/ , and, in.
default of payment of fine, to three months ' further rigorous imprisonment.
The appellant, aged about 20 years at the time of the alleged offence of 9th of August, 1969, was the youngest of three persons who were jointly charged and tried for offences punishable under Section 366 and 354 I.P.C. The prosecution case was : Kumari Seema, a girl below 18 years of age, was offered a lift on his bicycle by the accused, Kamal Singh, aged 30 years, while she was returning to her homefrom her School on 9th August, 1969.
The girl hesitated.
But, as she reposed confidence in Kamal Singh, whom she looked upon as her uncle, she accepted the offer.
Kamal Singh took Kumari Seema on his bicycle to the Regal Cinema where she part took of some.
refreshment ordered by Kamal Singh.
Meanwhile, the appellant Shiv Govind and the accused Punani, aged 26, arrived in a car.
Kamal Singh asked Kumari Seema to go with the two younger men in their car.
Seema refused.
Then, Kamal Singh asked her to go on his bicycle to Yashwant Talkies.
She complied with this request.
At this Cinema, Kanial Singh deposited his Cycle at the Cycle stand.
The appellant Shiv Govind and his companion Punam had followed in their car.
The three men succeeded in persuading Seema, despite her initial refusal, to sit in the car and to go for a short pleasure trip in it on the, definite assurance that she will soon be reached home.
After the girl had sat in the car she was driven to a place called Mandow, a number of miles away from Indore, and was made to alight at a tourist 's bungalow.
There two rooms were engaged by the accused.
, Kamal Singh occupied one of the two rooms and the girl was closeted in the other room with the appellant and his companion Punam, who were both drunk.
One of the two youngmen caught hold of the hands of the girl while the other tried to undress her with the object of raping her.
Kumari Seema, at this point, feigned sudden indisposition so that the two youngmen had to bring her out into the gallery for fresh air.
She managed to escape while the accused went inside to fetch some water for her, She rushed into the house of one Babulal Kamdar and complained to him about the incident.
This led to a communication of information of the offences to the Police which went to the tourist 's bungalow.
and arrested the three accused who were brought to Police Station Nalcha where a First Information Report was lodged.
The Trial Court had examined the evidence given in support of the case stated above.
This included medical evidence on the question of the age of the girl, because, while the prosecution alleged that she was below 16 years of age, the accused pleaded that she was above 18 years of age.
Evidently, the case of the accused 837 Was that Kumari Seema was a consenting party to whatever took place.
Although the girl was attending a School, the entry of her age in the School Register was not disclosed.
Despite some discrepancies in the evidence relating to the age of the girl, the trial court came to the conclusion that it was between 16 to 19 years.
It relied mainly on expert evidence of Doctors who had used the ossification test.
The Trial Court had also noticed the discrepancies between the prosecution version, as set out above by Kumari Seema in her evidence in Court.
and the story given out by her in the First lnformation Report where she had stated that she had joined the party of the accused at the crossing of Bijasan Road.
The earlier version suggested that the girl had herself gone to meet the party of the accused by appointment.
The consent of the girl was, however, immaterial in view of the finding of the Trial Court about the age of the girl.
The fact that she was taken to Mandow, where something happened at the tourist 's bungalow which she disapproved of, was corroborated by the evidence of Babulal Kamdar, and Kailash Sharma, in addition to the two police constables of Mandow out post.
The Trial Court which had the advantage, of watching the demeanour of the girl, had come to the conclusion that, although the girl may have tried to improve her version and pretend that she was unwilling to accompany Kamal Singh, who had come in a car for her according to the first version, yet, the charge under Sec.
366 I.P.C., was established against each of the three accused and the charge under Sec.
354 I.P.C. was established against Shiv Govind, appellant, and his companion Punam.
The three accused were, therefore, convicted under Sec. 366, and each was sentenced to one year 's rigorous imprisonment.
The two accused Shiv Govind and Punam were also convicted under Sec.
354 I.P.C., and sentenced to four months rigorous imprisonment, but the two sentences were ordered to run concurrently.
When the case came up in appeal to the High Court, a notice: of enhancement of the sentence under Sec.
366 I.P.C. was issued to each of the three appellants, and their sentences were enhanced, as indicated above, after the appellants had been heard.
It is only Shiv Govind who has appealed to this Court.
Shiv Govind had also applied under Sec.
561A. Criminal Procedure Code to the High Court, after the dismissal of his appeal and enhancement of the sentence, by the High Court, claiming the benefit of Sec. 6 and 11 of the Probation of Offender 's Act.
But this application was rejected by the learned Judge who had enhanced the sentence passed upon the appellant, although he 838 round that the report of the Probation Officer about the conduct of the accused while undergoing the sentence, which was sent far, was favourable to the appellant.
It appears from the two Judg ments given by the learned Judge who enhanced the sentence of the appellant and who subsequently dismissed the application Linder Sec.
561A Criminal Procedure Code also, that the view taken by him was that, having regard to the facts and circumstances and of the case and the offence committed by the appellant, the enhanced sentence was deserved by him.
We have, therefore, examined the Judgment of the High Court Linder appeal before us in order to discover the special reasons Which induced the learned High Court Judge to differ from the ( )pinion of the Trial Court about the appropriate sentence to be imposed upon the appellant.
The only reason given by the learned Judge for enhancing the sentence was that Kumari Seema had reposed confidence in Kamal Singh, whom she regarded as an Uncle, so that she could not expect foul play from him.
The learned Judge thought the girl 's trust and confidence in Kamal Singh explained why she did not protest when she was taken in the car and then made to get down at the tourist 's bungalow.
It seems, however, from the account of the occurrence given in the Judgment under appeal, that the learned Judge was shocked by the plight of Kumari Seema, due to the perfidy of Kamal Singh, and by.
a contemplation of the possible consequences to her if she had not behaved in a particularly.
brave and intelligent manner so as to escape from her predicament.
The learned Judge mentioned that the girl had risked her life to escape.
We, however, find that there was no suggestion in the evidence anywhere that any threat to the life of Kumari Seema was held out.
There was no evidence that the girl had seriously struggled to escape or had raised shouts for help which would have brought people around to her aid.
Nor was there any evidence that the accused tried to obstruct her or to chase her when she escaped from the tourist 's bungalow allegedly by resorting to a ruse.
The High Court was so impressed by the girl 's uncorroborated version of her own heroism, which did not tally with her first version in the First Information Report, that it overlooked the infirmities in the girl 's evidence discussed by the trial court.
We find the trial court 's view of the whole case to be, quite balanced and objective.
We do not think that the severer view of the High Court could be reasonably justified.
It seems clear to us that the High Court had overlooked the principles, laid down by this Court repeatedly, which should 839 govern the exercise of powers of the High Court to enhance sen tences Imposed by trial courts.
In Bed Raj vs The State of Uttar Pradesh.
this Court observed at page 588 589 "A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; See for example the observations in Dalip Singh vs State of Punjab , 156) and Nar Singh vs State of Uttar Pradesh [1955](1) S.C.R. 238, 2411.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In our opinion, the lese principles have not been observed.
It is impossible to hold in the circumstances described that the Sessions Judge did not impose a subs tantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate.
In the circumstances.
bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored".
We think that what was laid down by this Court.
in Bed Raj 's case (Supra) is fully applicable to the case before us.
We may also mention the similar views expressed by this Court in.
Alamgir & A nr., vs The State of Bihar (2).
We may observe that decision of this Court in Nabi Bux and Ors.
vs The State of Madhya Pradesh(: '), is distinguishable from the case before us.
In that case the High Court had enhanced a sentence having regard to all the facts and circumstances justifying the enhancement.
In the case before us we find that the High Court had not noticed a number of facts duly considered by the trial Court so that the exercise of power of enhancement of the sentence under Sec.
366 I.P.C. could not be reasonably justified here.
Consequently, we allow this appeal by setting aside the order of enhancement of sentence by the High Court of Madhya Pradesh and restore the sentence of one year 's rigorous imprisonment (1) [1955] (2) S.C.R. p. 583.
(2) [1959] Supp.
(1) S.C.R. 464.
(3) ; 840 passed upon the appellant by the learned Sessions Judge for the offence under Sec.
366 I.P.C. of which the appellant was convict ed.
The concurrent sentence of four months rigorous imprisonment under Sec.
354 I.P.C., which was not interfered with by the High Court, is maintained.
We understand that the appellant has already undergone more than one year 's imprisonment awarded to him and that he is in jail as his application for bail was rejected.
If this is so, the appellant will be released forthwith unless wanted in some other case.
K.B.N. Appeal allowed.
[/INST]The High Court set aside an order of acquittal of the appellants on various charges and convicted them.
One of the items of evidence on which the High Court relied was the first information report.
Though it was not proved through its maker when be gave evidence in the trial court.
the High Court held it to be admissible under section 157 of the Evidence Act.
in appeal to this Court, HELD : (1) The High Court was wrong in holding that the First Information Report would be admissible under section 157 of the Evidence Act.
Under that section.
it could not be used as substantive evidence but only to corroborate its maker.
The appellants were also denied the opportunity of cross examination on the First Information Report.
[627 A D] (2) The High Court, however, was correct in setting aside the order of acquittal and convicting the appellants on the other evidence.
[1639 D G] In dealing with an appeal against acquittal the High Court can go into questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the principles for such review.
These principles are giving due regard to, the views of the trial Judge as to the credibi lity of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to any benefit of doubt and the slowness of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
The appellate court ill coming to its own conclusion should not only consider every matter oil record having a bearing on questions of fact and the reasons given by the trial court in support of the order of acquittal but should also express reasons for holding that the acquittal was not justified.
If two conclusions can be reached with a plausible appearance of reason the court should lean in favour of that which leads to acquittal and not to that which lead, to conviction.
But once the appellate court comes to the conclusion that the view of the trial court was unreasonable that itself would provide a reason for interference.
[629 H; 630 A E. 631 B D] In the present case, the High Court bid kept in view the rules and principles of appreciation of evidence in setting aside the order of quitting.
In such a case.
this Court would not ordinarily interfere with the order of conviction by the High Court in an appeal against an acquittal, or review the evidence.
[630 E; 631 B D] Harbans Singh and Anr.
vs State of Punjab, [1962] Supp. 1 S.C.R. 104, Senwat Singh & Ors.
vs State of Rajasthan, ; Nihal Singh & Ors.
vs State of Punjab, ; , State of Bombay vs Rusy Mistry, A.T.R. and Laxman Kalu Nikalje State of Maharashtra. , followed.
623 Khedu Mohton & Ors.
vs State of Bihar, ; and Sheo Swarup vs, King Emperor, 61 I.A. 398, referred to.
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<s>[INST] Summarize the judgementiminal Appeal No. 90 of 1952.
Appeal under article 134(1) (c) of the Constitution of India from the Judgment and Order, dated 28th November, 1954, of the Punjab High Court in Criminal Revision No. 865 of 1951, arising out of the Judgment, dated 2nd August, 1951, of the Court of Additional Sessions Judge, Rohtak, Gurgaon, in Criminal Revision No. 4 of 1951.
M. C. Setalvad, Attorney General for India (Tek Chand and Rajinder Narain, with him) for the appellant.
Gopal Singh and K. L. Mehta for the respondent.
section M. Sikri, Advocate General for the State of Punjab (Jinder Lal and P. G. Gokhale, with him) for the Intervener (The State of Punjab).
October 12.
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J.
This appeal, by leave of the High Court of Judicature at Simla, raises a novel and interesting question of law, viz., whether a person accused of an offence under the Indian Penal Code and committed in a district which after the partition of India became Pakistan, could be tried for that offence by a Criminal Court in India after his migration to that country, and thereafter acquiring the status of a citizen.
The material facts relevant to this enquiry are these: The respondent, Ram Narain, acting on behalf of his firm, Ram Narain Joginder Nath, carrying on business at Mailsi in Multan District, was allowed a cash credit limit of rupees three lakhs by the Mailsi branch of the Central Bank of India Ltd. (the appellant) on the 23rd 699 December, 1946, shortly before the partition of British India.
The account was secured against stocks which were to remain in possession of the borrowers as trustees on behalf of the bank.
On 15th August, 1947, when British India was split into two Dominions, the amount due to the bank from Ram Narain was over Rs. 1,40,000, exclusive of interest, while the value of the goods pledged under the cash credit agreement was approximately in the sum of Rs. 1,90,000.
On account of the disturbances that followed in the wake of the partition of the country, the bank 's godown keeper at Mailsi left Mailsi some time in September, 1947, and the cashier, who was left in charge, also was forced to leave that place in October, 1947, and thus no one was in Mailsi to safeguard the bank 's godowns after that date.
It is alleged that in January, 1948, when, Mr. D. P. Patel, Agent of the Multan branch of the appellant bank, visited Mailsi, he discovered that stocks pledged by Messrs. Ram Narain Joginder Nath, against the cash credit agreement had disappeared.
On inquiry he found that 801 cotton bales pledged with the bank had been stolen, and booked by, Ram Narain to Karachi on the 9th November, 1947, and that he had recovered a sum of Rs. 1,98,702 12 9 as price of these bales from one Durgadas D. Punjabi.
The bank claimed this amount from Ram Narain but with no result.
It then applied under section 188, Criminal Procedure Code, to the East Punjab Government for sanction for the prosecution of Ram Narain for the offences committed in Pakistan in November, 1947, when he was there, in respect of these bales.
The East Punjab Government, by its order dated 23rd February, 1950, accorded sanction for the prosecution of Ram Narain, under sections 380 and 454, Indian Penal Code.
Ram Narain, at this time, was residing in Hodel, District Gurgaon, and was carrying on business under the name and style of Ram Narain Bhola Nath, Hodel.
In pursuance of this sanction, on 18th April, 1950, the bank filed a complaint against Ram Narain under sections 380 and 454, Indian Penal Code, and also under section 412 of the Code before the District Magistrate of Gurgaon.
700 Ram Narain, when he appeared in Court, raised a preliminary objection that at the time of the alleged occurrence he was a national of Pakistan and therefore the East Punjab Government was not competent to grant sanction for his prosecution under section 188, Criminal Procedure Code, read with section 4, Indian Penal Code.
This objection was not decided at that moment, but after evidence in the case had been taken at the request of both sides the Court heard arguments on the preliminary point and overruled it on the finding that Ram Narain could not be said to have acquired Pakistan nationality by merely staying on there from 15th August, till 10th November, 1947, and that all this time be had the desire and intention to revert to Indian nationality because he sent his family out to India in October, 1947, wound up his business there and after his migration to India in November, 1947, he did not return to Pakistan.
It was also said that in those days Hindus and Sikhs were not safe in Pakistan and they were bound to come to India under the inevitable pressure of circumstances over which they had no control.
Ram Narain applied to the Sessions Judge, Gurgaon, under sections 435 and 439, Criminal Procedure Code, for setting aside this order and for quashing the charges framed against him.
The Additional Sessions Judge dismissed this petition and affirmed the decision of the trial magistrate.
Ram Narain then preferred an application in revision to the High Court, Punjab, at Simla, and with success.
The High Court allowed the revision and quashed the charges and held that the trial of respondent, Ram Narain, by a Magistrate in India was without jurisdiction.
It was held that until Ram Narain actually left Pakistan and came to India he could not possibly be said to have become a citizen of India, though undoubtedly he never intended to remain in Pakistan for any length of time and wound up his business as quickly as he could and came to India in November, 1947, and settled in Hodel.
It was further held that the Punjab Government had no power in February, 1950, to sanction his prosecution under section 188, Criminal Procedure Code, for acts 701 committed in Pakistan in November, 1947.
The High Court also repelled the further contention of the appellant bank that in any case Ram Narain could be tried at Gurgaon for the possession or retention by him at Hodel of the sale proceeds of the stolen cotton which themselves constitute stolen property.
Leave to appeal to this Court was granted under article 134(1) (c) of the Constitution.
The sole question for determination in the appeal is whether on a true construction of section 188, Criminal Procedure Code, and section 4 of the Indian Penal Code, the East Punjab Government had power to grant sanction for the prosecution of Ram Narain for offences committed in Pakistan before his migration to India.
The relevant portion of section 4, Indian Penal Code, before its amendment read thus: "The provisions of this Code apply also to any offence committed by (1) any Native Indian subject of Her Majesty in any place without and beyond British India; Since 1950, the wording is: "Any citizen of India in any place without and beyond India Section 188, Criminal Procedure Code, formerly read thus : " When a Native Indian subject of Her Majesty commits an offence at any place without and beyond the limits of British India he may be dealt with in respect of such offence as if it had been committed at any place within British India at which he may be found. " These wordings were subsequently adapted after the formation of two Dominions and read as follows: When a British subject domiciled in India commits an offence at any place without and beyond all the limits of the provinces he may be dealt with in respect of such offence as if it had been committed at any place within the Provinces at which he may be found." After 1950, the adapted section reads as follows " When an offence is committed by 90 702 (a)any citizen of India in any place without and beyond India. he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. " The learned Attorney General contended that Ram Narain was, at the time when sanction for his prosecution was given by the East Punjab Government, a citizen of India residing in Hodel and that being so, he could be tried in India being a citizen of India at that moment, and having committed offences outside India, and that the provisions of section 4, Indian Penal Code, and section 188, Criminal Procedure Code, were fully attracted to the case.
In our opinion, this contention is not well founded.
The language of the sections plainly means that if at the time of the commission of the offence, the person committing it is a citizen of India, then even if the offence is committed outside India he is subject to the jurisdiction of the Courts in India.
The rule enunciated in the section is based on the principle that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the offence.
If, however, at the time of the commission of the offence the accused person is not a citizen of India, then the provisions of these sections have no application whatsoever.
A foreigner was not liable to be dealt with in British India for an offence committed and completed outside British India under the provisions of the sections as they stood before the adaptations made in them after the partition of India.
Illustration (a) to section 4, Indian Penal Code, delimits the scope of the section.
It indicates the extent and the ambit of this section.
I runs as follows: "(a) A, a coolie, who is a Native lndian subject commits a murder in Uganda.
He can be tried and convicted of murder in any place in British India in which he may be found.
" In the illustration, if (A) was not a Native Indian subject at the time of the commission of the murder, the provisions of section 4, Indian Penal Code, could not apply to his case.
The circumstance that after the commission of the offence a person becomes domiciled in another country, or acquires citizenship of that 703 State ' cannot confer jurisdiction on the Courts of that territory retrospectively for trying offences committed and completed at a time when that person was neither the national of that country nor was he domiciled there.
The question of nationality of Ram Narain really does not arise in the case.
The real question to be determined here is, whether Ram Narain had Indian domicile at the time of the commission of the offence.
Persons domiciled in India at the time of coming into force of our Constitution were given the status of citizens and they thus acquired Indian nationality.
If Ram Narain had Indian domicile at the time of the commission of the offence, he would certainly come within the ambit of section 4, Indian Penal Code, and ,section 188, Criminal Procedure Code.
If, on the other hand, he was not domiciled in India at the relevant moment, those sections would have no application to his case.
Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of 'domicile ' The simplest definition of this expression has been given by Chitty J. in Craignish vs Craignish(1), wherein the learned Judge said: " That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom. " But even this definition is not an absolute one.
The truth is that the term domicil ' lends itself to illustra tions but not to definition.
Be that as it may, two constituent elements that are necessary by English Law for the existence of domicil are: (1) a residence of a particular kind, and (2) an intention of a particular kind.
There must be the factum and there must be the animus.
The residence need not be continuous but it must be indefinite, not purely fleeting.
The intention must be a present intention to reside for ever in the country where the residence has been taken up.
It is also a well established proposition that a person may have no home but he cannot be without a domicil and the law may attribute to him a domicil in a country where in reality he has not.
A person may be a vagrant (1) , 192.
704 as when he lives in a yacht or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicil in one particular territory.
In order to make the rule that nobody can be without a domicil effective, the law assigns what is called a domicil of origin to every person at his birth.
This prevails until a new domicil has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevetheless his domicil of origin adheres to him until he actually settles with the requisite intention in some other country.
It has been held by the High Court that Ram Narain remained in Multan District of the West Punjab, where he and his ancestors had lived till his migration to India.
The contention that as no Hindu or Sikh could possibly remain in Pakistan and therefore every such person must have been bound upon making his way to India as quickly as possible and that merely by forming an intention to come to India be became an Indian subject and was never even for a moment a subject of Pakistan, was negatived, and it was said that "though there is no doubt that so far as Punjab is concerned the vast majority of Hindus and Sikhs came to India but even in the Punjab the exodus has not been complete and in the East Bengal there are a considerable number of non Muslims who no doubt by now have become full citizens of Pakistan.
" In view of these findings it was concluded that the only possible way by which a resident of the territories which became Pakistan could become an Indian subject was by actually coming to India and unless and until any such person did come to India he retained Pakistan domicil, and was not covered by the words "Native Indian subject of Her Majesty" in the meaning which they automatically acquired as from the 15th August, 1947, and he certainly could not be described as a citizen of India in November, 1947, The learned Attorney General combated this view of the learned Judge and laid considerable emphasis on his following observations: 705 " There does not seem to be any doubt in the evidence produced that Ram Narain never intended to remain in Pakistan for any length of time.
In fact, he wound up his business as quickly as he could and came to India later in November 1947 and settled in Hodel" and he further emphasized the circumstance relied upon by the trial magistrate and Sessions Judge that Ram Narain had sent his family to India in October, 1947.
In our opinion, none of these circumstances conclu sively indicate an intention in Ram Narain of permanently removing himself from Pakistan and taking up residence in India.
It has to be remembered that in October or November, 1947, men 's minds were in a state of flux.
The partition of India and the events that followed in its wake in both Pakistan and India were unprecedented and it is difficult to cite any historical precedent for the situation that arose.
Minds of people affected by this partition and who were living in those parts were completely unhinged and unbalanced and there was hardly any occasion to form intentions requisite for acquiring domicil in one place or another.
People vacillated and altered their programmes from day to day as events happened.
They went backward and forward; families were sent from one place to another for the sake of safety.
Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode.
They overnight became refugees, living in camps in Pakistan or in India.
No one, as a matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that he was doing so for ever or that be was for ever abandoning the place of his ancestors.
Later policies of the Pakistan Government that prevented people from going back to their homes cannot be taken into consideration in determining the intention of the people who migrated at the relevant moment.
Ram Narain may well have sent his family to India for safety.
As pointed out by the learned Judge below, he and his ancestors lived in the Multan District.
He had considerable business there.
706 The bank had given him a cash credit of rupees three lakhs on the security of goods.
He had no doubt some business in Hodel also but that was comparatively small.
There is no evidence that he had any home in India and there is no reason to go behind the finding of the learned Judge below that he and his ancestors had been living in Mailsi.
In these circumstances, if one may use the expression, Ram Narain 's domicil of origin was in the district of Multan and when the district of Multan fell by the partition of India in Pakistan, Ram Narain had to be assigned Pakistan domicil till the time he expressed his unequivocal intention of giving up that domicil and acquiring Indian domicil and also took up his residence in India.
His domicil cannot be determined by his family coming to India and without any finding that he had established a home for himself.
Even if the animus can be ascribed to him the factum of residence is wanting in his case; and in the absence of that fact, an Indian domicil cannot be ascribed to Ram Narain.
The subsequent acquisition by Ram Narain of Indian domicil cannot affect the question of jurisdiction of Courts for trying him for crimes committed by him while he did not possess an Indian domicile The question in this case can be posed thus: Can it be said that Ram Narain at the time of the commission of the offence was domiciled in India ? That question can only be answered in one way, viz., that he was not domiciled in India.
Admittedly, then he was not a citizen of India because that status was given by the Constitution that came into force in January, 1950.
He had no residence or home in the Dominion of India.
He may have had the animus to come to India but that animus was also indefinite, and uncertain.
There is no evidence at all that at the moment he committed the offence he had finally made up his mind to take up his permanent residence in India, and a matter of this kind cannot be decided on conjectural grounds.
It is impossible to read a man 's mind but it is even more than impossible to say how the minds of people worked during the great upheaval of 1947.
707 The learned Attorney General argued that Ram Narain was a native Indian subject of Her Majesty before the 15th August, 1947, and that description continued to apply to him after the 15th August, 1947, whether he was in India or in Pakistan, but we think that the description 'Native subject of Her Majesty ' after the 15th of August, 1947, became applicable in the territory now constituted India only to residents of provinces within the boundaries of India, and in Pakistan to residents of provinces within the boundaries of Pakistan and till the time that Ram Narain actually landed on the soil of India and took up permanent residence therein he cannot be described to be domiciled in India or even a Native Indian subject of His Majesty domiciled in India.
For the reasons given above we are of the opinion that the decision of the High Court that Ram Narain could not be tried in any Court in India for offences committed in Mailsi in November, 1947, is right and that the Provincial Government had no power under section 188, Criminal Procedure Code, to accord sanction to his prosecution.
The result is that the appeal fails and is dismissed.
Appeal dismissed.
[/INST]The great grandfather of the appellant executed a trust deed in respect of certain properties.
The trustees were enjoined to.
apply the income of the trust towards charities as also for the benefit of the settlor and his family and descendants.
The appellant filed a suit to enforce his rights under the trust and the trial court granted him maintenance to the extent of Rs. 50/ per mensem out of the trust properties instead of the sum of Rs. 10/. allowed under the trust deed.
In appeal, however, the High Court dismissed the appellant 's suit and reversed the order of the trial court granting him the said increased maintenance.
In this Court The contentions of the appellant which fell for consideration were: (i) whether the dominant purpose of the trust was the maintenance of the settlor 's family, the grant to.
the charities being only secondary; (ii) whether the cy pres doctrine applied to the case, justifying the payment of maintenance money as decreed by the trial court to the appellant.
HELD: (i) The provisions in the deed of trust and the direction to the trustees, first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity.
The words "for the aforesaid charity" were of important significance.
The entire accumulation was for charity.
The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam to be celebrated in the specified Devasthanams.
[303 E F] Further the provisions regarding maintenance and education were to be at the sole discretion of the trustees who could stop the same.
This power of the trustees was a complete negation of the appellanT 's contention that the intention of the settlor was that education and maintenance expenses were the dominant purpose of the settlement.
The settlor could never have allowed his dominant intention to be repelled by a discretion conferred on the trustees to stop such expenses.
[303 G H] The tenor of the document thus pointed to the inescapable conclusion that the predominant and over whelming intention of/he settlor was to benefit the charities and provide for the same.
[304 A] (ii) The cy pres doctrine applies where a charitable trust is initially impossible or impracticable and the court applies the property cy pres.
viz. to some other charities as nearly as possible.
resembling the original trust.
In the present case, the maintenance and education expenses were neither charitable trust nor similar objects of charity and the High Court therefore rightly interfered with the trial court 's order granting increased maintenance at Rs. 50/ per mensem to the appellant.
[304 C D]
</s>
|
<s>[INST] Summarize the judgementivil Appeal No, 3201 of 1989.
From the Judgement and Order dated 28.2.1989 of the Punjab and Haryana High Court in C.W.P. No. 7769 of 1988.
Dr. N.M. Ghatate and C.V.S. Rao for the Appellants.
P.P.Singh for the Respondent.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. Whether a personal hearing is required before disposing of a petition filed under Section 117(2) of The (`Act ' for short) against an order of the Summary Security Force Court? This in short is the question involved in this appeal filed by the Union of India.
The facts that give rise to this appeal may be noted at the outset.
The sole respondent who was working as Mounted Constable in the Border Security Force (`BSF ' for short) was charged for an offence under Section 31(b) of the for extracting a sum of Rs. 14,000 from a person without proper authority.
A chargesheet was issued to the respondent.
The evidence in support of the same was recorded.
Thereafter a Summary Security Force Court as provided under the was constituted and the respondent was put on trial on 17,2.1988.
During the recording of the evidence, though the respondent was given an opportunity to cross examine the witnesses he declined to do so and according to the enquiring authorities, he pleaded guilty and prayed that a lenient view may be taken.
During the trial he was also given an opportunity to examine defence witnesses, if any but he did not do so.
It is also averred that since the respondent pleaded guilty, Summary Security Force Court passed the orders and sentenced him to rigourous imprisonment for one year in civil prison and also to be dismissed from service.
Aggrieved by the said order the respondent preferred a petition under Section 117(2) of the to the Director General, BSF who 185 after going through the petition as well as other records of the case rejected the same as devoid of any merit.
The said decision was informed to the respondent.
Aggrieved by the same, the respondent filed a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab & Haryana.
It was urged that there was violation of principles of natural justice e since he had not been heard before disposing of the petition filed under Section 117(2) of the .
The High Court without going into the merits allowed the writ petition and directed a fresh hearing of the petition filed by the respondent in accordance with law after hearing him.
Aggrieved by the saidorder the Union of India has filed the present appeal.
Learned counsel for the appellants submitted that Section 117 (2) of the does not provide for personal hearing and that the courts, which examined the similar provisions in the Army , have held that the personal hearing need not be given particularly having regard to the nature of the act and the post held.
The learned counsel appearing for the respondent, on the other hand, submitted that the statute does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.
Before we examine the decisions cited by either side, it is necessary to refer to some of the provisions of the and the Army .
The BSF is an armed force of the Union of India constituted under Item 2 of List I of Schedule 7 of the Constitution of India and is primarily connected with the defence of the country.
The preamble states that the is to provide for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith.
Section 4 provides for constitution of an Armed Force of the Union called the Border Security Force for ensuring the security of the borders of India and subject to the provisions of the , the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed.
Chapter III deals with offences and Chapter IV with punishments that can be awarded by the Security Force Court.
Chapter VI deals with the constitution of the Security Force Courts and their powers of try the offences punishable under the .
Chapter VII contains the procedure, the witnesses can be summoned and examined.
Section 87 lays down that the Evidence , shall, subject to the provisions of the , apply to all proceedings before the Security Force Courts.
For the purpose of this appeal it may not be necessary to go into the details of this procedure.
As per Section 107 no finding or sentence of a Security 186 Force Court shall be valid except so far as it may be confirmed as provided under the .
Sections 108 and 109 deal with the authorities empowered to confirm the decision of the General Security Force Court or an ordinary Security Force Court.
Under Section 117, the aggrieved person is entitled to file a petition to the concerned authority mentioned therein against the order passed by any Security Force Court.
Section 117 reads as under: "117(1) Any person subject to this who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.
" The next relevant Section is Section 118 which reads thus: "The Central Government, the Director General, or any prescribed officer may annul the proceedings of any Security Force Court on the ground that they are illegal or unjust.
" In the instant case, we are concerned with the post confirmation petition presented under Section 117(2) to the Director General, BSF.
As already mentioned the Director General rejected the same holding that it is devoid of merit without giving any personal hearing.
The petition filed by the respondent under Section 117(2) is marked as Annexure `C ' in this appeal before us.
We have gone through the same and we find that request for personal hearing as such has not been made.
With this background we shall now examine whether it is ob 187 ligatory that a personal hearing should be given and whether there has been violation of principles of natural justice? The doctrine of principles of natural justice and audi alteram partem are part of Article 14 and there are any number of decisions rendred by this Court regarding the scope of this doctrine.
We shall, however, refer to one or two important cases relied upon by the learned counsel for the appellants.
In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 all the earlier important cases are referred to.
Suffice it to say that it is laid down that principles of natural justice apply to administrative orders affecting the rights of citizens.
But it is also observed that: "The audi alteram partem rule may, therefore, by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitute or the urgency of the situation so demands.
But, at the same time, it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands.
It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case.
The Court must make every effort to salvage this cardinal rule to the maximum extend permissible in a given case.
" In State of Haryana vs Ram Krishan and Others, ; the question was whether in a case of premature termination of mining leases by the Government, it was necessary to give an opportunity of hearing.
The Court held that: "Since there is no suggestion in the section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right.
The Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development.
Not to do so will be violative of the principles of natural justice.
Reference may be made to the observations of this Court in Baldev Singh vs State of Himachal Pradesh, , that where exercise of a power results in civil 188 consequences to citizens, unless the statute specifically rules out the application of natural justice, such rule would apply.
The learned counsel appearing for the Union of India, however, submitted that the courts have not gone to the extent of holding that in every petition or revision by way of representation filed against an order of a Tribunal under special statute should also be given an opportunity of hearing before disposal of the same.
Most of the other decisions cited deal with the question of giving an opportunity before disposal of a petition filed under Section 164(2) of the Army which is in pari materia to Section 117(2) of the .
We may usefully extract Section 164 of the Army which reads thus: "164.
Remedy against order, finding or sentence of court material Any person subject to this who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates.
(2) Any person subject to this who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government,the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit.
" In Som Datt Datta vs Union of India & Ors., ; a question came up whether it was necessary for the confirming authority or upon the Central Government to give reasons while disposing of a petition under Section 164.
It was held that: "Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, 189 we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision." (emphasis supplied) In Union of India vs Jyoti Prakash Mitter, ; a question came up whether an order passed by President acting under article 273 of the Constitution of India is justiciable.
This Court held that the appreciation of the evidence by the President is entirely left to him but the Court will not sit in appeal over the judgement of the President.
Now coming to the question of personal hearing it was further held that: "The President had given ample opportunities at diverse stages to the respondent to make his representations.
All evidence placed before the President when he considered the question as to the age of the respondent was disclosed to him and he respondent was given an opportunity to make his representation thereon.
There is nothing in clause (3) of Article 217 which requires that the Judge whose age is in dispute, should be given a personal hearing by the President.
The President may in appropriate cases in the exercise of his discretion give to the Judge concerned an oral hearing, but he is not bound to do so.
An order made by the President which is declared final by clause (3) of Article 217 is not invalid merely because no oral hearing was given by the President to the Judge concerned".
(emphasis supplied) In Lt. Col.
K.N.S. Sidhu vs The Union of India and Others, All India Service Law Journal, a Division Bench of the Punjab & Haryana High Court has considered this very question and held that the rejection of a representation made under Section 164(2) of the Army without giving a personal hearing does, not suffer from any illegality and after referring to A.K. Gopalan vs State of Madras, ; and Union of India vs Jyoti Prakash Mitter, ; , held that: "From the observations reproduced above, it is abundantly clear that there is no hard and fast rule for the applicability of principles of natural justice and that in each case it has to be definitely ascertained if the statute governing it leaves 190 any discretion for involving their assistance.
" It was further observed that: "The applies to a class of people who are the backbone of the country.
They are governed by the codified law.
Discipline is maintained by resorting to the provisions of the codified law.
There would hardly be any justification for importing the principles of natural justice in a completely codified statute".
In Captain Harish Uppal vs Union of India and Others, ; also the question whether an opportunity to be heard is necessary before confirmation under Section 164 of the Army , was considered and it was held that: "The contention that Brig.
Bhilla should either have given a hearing to the petitioner or the Chief of Army Staff should have given a hearing to the petitioner before confirming the subsequent sentence by the court martial is not a requirement under the .
While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the court martial, is a contention which cannot be accepted.
To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed Personnel.
It is not a requirement of the principles of natural justice.
Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Staff for confirmation it was open to the petitioner to have availed himself of the remedy provided under Section 164 of presenting a petition to the confirming officer, i.e. the Chief of the Army Staff in this case.
He does not appear to have done so." (emphasis supplied) In this decision this Court has held in unambiguous terms that the confirming authority need not give a personal hearing and this ratio applies with equal force to a post confirmation petition under Section 164(2) and consequently to an application under Section 117(2) of the .
In a recent decision in Shri S.N. Mukherjee vs Union of India, JT (1990) 3 630 a Constitution bench of this Court having noted the principle that requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities, however, proceeded to hold that "There is nothing in the language of sub section (2) of Section 164 which indicates that recording of reasons for an order passed on the post confirmation petition was necessary".
In arriving at this finding, the Bench referred to the ratio laid down in Som Datt Datt 's case.
At this stage we may refer to another decision of this Court in Union of India vs cor.
J.N. Sinha and Anr., [1971] 1 SCR 791 wherein it is held: "Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights.
As observed by this Court in Kraipak and Ors.
vs Union of India, AIR 1970 SC 150, "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law but supplement it.
xx xx xx Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power".
From the above discussion it emerges that in cases of special enactments like Army , all the principles of natural justice cannot be imported.
The same ration applies to a petition under Section 117(2) of the also.
We may also point out her that Chapter XIII consisting of Rules 167 to 169 of the BSF Rules deals with petitions filed under Section 117 of the .
Even in them there is nothing to indicate that a hearing has to be given before disposal of a petition.
192 As noted above, under Section 117(2) the respondent in only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice.
The respondent has been tried by observing the due process of law and the verdict of the Security Force Court was confirmed and it is only a post confirmation petition that was filed under Section 117(2) of the and authority which disposed of the same is not a court any every order passed administratively cannot be subjected to the rigours of principles of natural justice.
For the aforesaid reasons, the order of the High Court is set aside and the matter is remitted back to the High Court for disposal on merits.
The appeal is accordingly allowed.
In the circumstances of the case, there will be no order as to costs.
R.P. Appeal allowed.
[/INST]The respondent in the appeal, a Mounted Constable in the Border Security Force, was charged for an offence under section 31(b) of the for extracting a sum of money from a person without proper authority.
A charge sheet was issued, evidence in support of the same was recorded, and thereafter a Summary Security Force Court as provided under the Act was constituted and the respondent was put on trial.
During the recording of evidence, the respondent was given an opportunity to cross examine prosecution witnesses, but he declined, pleaded guilty and prayed for a lenient view to be taken.
The Summary Security Force Court passed an order sentencing him to rigorous imprisonment for one year civil prison and also to be dismissed from service.
Aggrieved by the aforesaid order, the respondent preferred a petition under section 117(2) of the Act to the Director General, B.S.F., who after going through the petition and the records of the case, rejected the same as devoid of any merit.
The respondent thereupon filed a petition under Articles 226 and 227 of the Constitution before the High Court urging that there was violation of the principles of natural justice since he had not been heard before disposing of his petition.
The High Court allowed the writ petition, and directed fresh hearing of the petition of the respondent, after giving him an opportunity of being heard.
The Union of India appealed to this Court against the decision of the High Court contending that section 117(2) of the Act does not provide for 183 a personal hearing.
The appeal was contested by the respondent contending that as the ` does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.
On the question: whether a personal hearing is required before disposing of a petition under s.117(2) of the against an order of the Summary Security Force Court, Allowing the appeal, this Court, HELD: 1.
The doctrine of principles of natural justice and audi alteram partem are part of Article 14 of the Construction.
Although principles of natural justice apply to administrative orders affecting the rights of citizen yet it is also clear that in cases of special enactments, like Army Act, all the principles of natural justice cannot be imported.
The same ratio applies to a petition under section 117(2) of the also.
[187A B; 191G] 1.2 Chapter XIII consisting of Rules 167 to 169 of the Border Security Force Rules deals with petitions filed under s.117 of the .
Even in them there is nothing to indicate that a hearing has to be given disposal of a petition.
[191G H] Maneka Gandhi vs Union of India, [1978] 2 SCR 621; Som Datt Datta vs Union of India & Ors., [1969] 2SCR 177; Union of India vs Jyoti Prakash Mitter,[1971] 1 SCC 396; Captain Harish Uppal vs Union of Inida and Others, ; ; Shri S.N. Mukherjee vs Union of India, JT 1990 (3) 630 and Union of India vs Col. J.N. Sinha and Anr.
,[1971], 1 SCR 791, relied on.
Lt. Col.
K.N.S. Sidhu vs The Union of India and Others, All India Service Law Journal 1977 page 721, referred to.
2.1 Under section 117(2) of the , the person aggrieved is only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice.
[192A] 2.2 The authority disposing of the petition under section 117(2) is not a court, and every order passed administratively cannot be subjected to the rigours of principles of natural justice.
[192B] 3.
In the instant case, the respondent had been tried by observing 184 the due process of law, and the verdict of the Summary Security Force Court was confirmed and it was only a post confirmation petition that was filed under s.117(2) of the .
The order was passed by an authority and not by a court and every order passed administratively could not be subjected to the rigours of principles of natural justice.
[192A B]
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<s>[INST] Summarize the judgementION: Criminal Appeal No. 52 of 1955.
Appeal from the judgment and order dated the 15th February, 1955, of the Calcutta High Court in Criminal Appeal No. 40 of 1955 arising out of the 751 judgment and order dated the 22nd January, 1955, of the Additional Sessions Judge, 24 Parganas, Alipore, in Trial No. 1 of January Sessions for 1955.
A. C. Roy Choudhari, K. R. Choudhari and Sukumar Ghosh, for the appellant.
A. C. Mitra, K. B. Bagchi and P. K. Bose, for the respondent.
October 24.
The following Judgment of the Court was delivered by SINHA J.
This appeal on a certificate granted by the High Court at Calcutta, under article 134(1)(c) of the Constitution, is directed against the order of a Division Bench of that Court, dated February 15, 1955, summarily dismissing an appeal from the judgment and order dated January 22, 1955, passed by the learned Second Additional Sessions Judge of Alipore, accepting the unanimous verdict of guilty returned by the jury holding the appellant guilty under section 376 of the Indian Penal Code, for having committed rape on a young girl, named Sudharani Roy, said to be about 14 15 years of age.
The learned trial judge, accepting the unanimous verdict of the jury and agreeing with it, imposed a " deterrent punishment " of rigorous imprisonment for 5 years, in view of the fact that he was in loco parentis to the large number of girls who were the inmates of the Nari Kalyan Ashram of which the appellant had been the secretary for a pretty long time.
The learned counsel for the State of West Bengal raised a preliminary objection that the certificate granted by the Bench of the Calcutta High Court presided over by the learned Chief Justice, was bad on the face of the judgment given by him while granting the certificate.
We have, therefore, first to examine whether the preliminary objection is sound.
As already stated, the Division Bench before which the appeal came up for admission, summarily dismissed it without giving any reasons.
Apparently, the Bench was not satisfied that there was any error of law or mis direction in the learned Sessions Judge 's charge to the jury which had returned a unanimous verdict of 752 guilty against the appellant.
On March 7, 1955, the Bench consisting of Chakravarty C. J. and section C. Lahiri J. passed the order to the effect that having heard the argument on behalf of the applicant for the certificate of fitness for the proposed appeal to this Court on March 4, they had the opportunity of reading through the charge delivered by the learned trial judge, and that they had " come to feel that before the application is disposed of, we should see the depositions in full.
" Accordingly, they directed the records of the original trial to be called for and placed before them.
The case, therefore, stood adjourned till the arrival of the records.
The matter was heard again on March 17, and on March 18, the learned Chief Justice delivered a judgment which appears at pages 220 to 231 of the record.
It is a full judgment giving the facts and history of the case and the evidence adduced on behalf of the prosecution.
The learned Chief Justice, in the course of his very elaborate judgment, observed that the " learned Judge delivered an exhaustive charge to the jury from which he does not appear to have omitted any part of the evidence which was of any materiality whatsoever.
The jury appear to have applied their minds critically. .
Having examined the grounds taken in the appeal as presented to the High Court, he made the following observations: " I have gone through the grounds taken in the petition of appeal to this Court and I have no hesitation in saying that if those were the grounds urged before the learned Judges, no one need be surprised that their Lordships saw nothing arguable or worth attention in the case.
Except one, not one of the grounds urged by Mr. Roy Choudhury before us is to be found in the petition of appeal. . ." On an examination, in great detail, of the grounds urged before the Bench hearing the application for certificate, the learned Chief Justice observed: " Mr. Roy Choudhury, however, urged before us six several points.
Except one, in respect of which there is something to be said, none of them impresses me.
" 753 It was not clearly indicated in the judgment what that single ground was.
The penultimate paragraph of the order passed by the learned Chief Justice, contains the following: " We are oppressed by the feeling that there were arguable points, although they might not bear examination and the accused has not had the satisfaction of feeling that he has been fully heard by the Court of appeal.
I would therefore grant him the leave he asks for, not because we take any view in his favour of the evidence in the case, but because justice should also appear to have been done and therefore the evidence ought to have received a full consideration by the appellate Court, although the result might be to confirm the conviction.
" We have set out the findings of the learned Chief Justice while granting "leave to appeal" to this Court, in his own words, to appreciate the reasons for granting " leave to appeal ".
It appears that the learned Chief Justice and his brother judge, contrary to the legal position that one Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench, have, in fact, done so.
But in the instant case, the learned Chief Justice has gone further and observed that the summary dismissal of the appeal by the Criminal Bench, has not given satisfaction to the appellant that he had been fully heard, and that it did not appear to him that justice had been done.
Such observations are not conducive to the maintenance of a healthy atmosphere for the administration of justice in the highest Court in the State.
Furthermore, the observation almost amounts to a condemnation of the practice of summary dismissal of appeals, especially against orders passed in a case tried by a jury where the appellant has to make out clear grounds of law.
Such a practice prevails, so far as we know, in almost all the High Courts in India and has the sanction of the statute law as contained in the Code of Criminal Procedure.
This Court has repeatedly called the attention of the High Courts to the legal position that under 754 article 134(1)(c) of the Constitution, it Is not a case of granting leave" but of "certifying that the case is a fit one for appeal to this Court.
" Certifying " is a strong word and, therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case, requiring an authoritative interpretation by this Court.
On the face of the judgment of the learned Chief Justice, the leave granted cannot be sustained vide the case of Haripada Dey vs The State of West Bengal (1), and a number of decisions of this Court referred to therein.
In view of those authorities of this Court, it is clear that the certificate granted by the High Court is not a proper one.
The preliminary objection is, therefore, upheld.
But the appeal having been placed before this Court, we have to satisfy ourselves whether there are any grounds on which this Court would have granted special leave to appeal under article 136 of the Constitution.
In order to appreciate the grounds raised in support of the appeal by the learned counsel for the appellant, it is necessary to state the following facts: The appellant was the honorary secretary of a large institution for receiving and looking after young girls and women who had no homes of their own or had gone astray.
It is called the ' Nari Kalyan Ashram ' and is located in one of the quarters of the city of Calcutta.
The appellant in his capacity as the secretary, used to come to the Ashram daily in the evening at about 7 p.m., and stay there till mid night or past mid night.
In his office room, there was a bed stead with a bedding spread thereon.
He used to occupy the bed and requisition the services of girls to massage his body.
Between January and April, 1954, the accused who was in the 'habit of calling the girls named Sudharani, Narmaya, Kalyani and others, for that purpose, is said to have committed rape on those girls.
The subject matter of the charge in this case is the offence of rape said to have been 755 committed on the two girls Narmaya and Sudharani, one after the other, on the night of April 20, 1954.
On April 29, 1954, at about 10 p.m., the officer in charge of the Maniktala police station, accompanied by Sub Inspector Nirmal Chandra Kar, went to the Ashram in connection with collecting information regarding the escape of some girls from the Ashram.
Narmaya and Sudharani are said to have given information to the said officer in charge of the police station, alleging rape on them.
They also pointed out a steel locker in the room of the secretary, where, it was alleged, he used to keep rubber sheaths used by him before he had sexual intercourse with each of them.
The police officers aforesaid obtained the key from the appellant, with which the steel locker was opened and a leather bag inside the locker was pointed out by the girls.
The bag was found to have contained a rubber sheath along with other articles.
After recording the information, the police officer in charge of the Maniktala police station, investigated the case and submitted a charge sbeet against the appellant.
After the preliminary inquiry by a magistrate, the appellant was committed for trial to the Court of Session on a charge of rape upon the two girls, under section 376, Indian Penal Code.
The defence of the appellant was that the case against him was completely false and had been concocted by the police with the help of the inmates of the Ashram and the Assistant Secretary, Tarun Kumar Sarkar who was one of the prosecution witnesses.
At the trial, the prosecution examined 23 witnesses, in support of the case against the accused.
The two victims of the alleged outrage by the appellant, were examined, namely, Sudharani Roy, P.W. 2 and Narmaya, P.W. 5, who both deposed that the appellant used to come to the Ashram in the evening at about 7 p.m., and used to stay there till after mid night in his special room which contained a bedstead and a bedding and a steel almirah and other pieces of furniture.
On the &ate of the occurrence in question, first Narmaya was called in by the appellant and then Sudharani, and the appellant is said to have committed rape first on 96 756 Narmaya and then on Sudharani, in the presence of both of them, against their will and without their consent.
They further deposed that the appellant had intercourse with them after putting on the sheath.
In between the two acts, he had a cup of tea with which he swallowed " a black pill " which is suggested to have been an aphrodisiac.
The accused paid them each eight annas and warned them not to divulge those acts on pain of being severely dealt with, if they disclosed the same.
Kalyani, P.W. 19, is another young girl who was an inmate of the Ashram on the material dates.
She is a girl who was both deaf and dumb, and her intelligence was below normal.
As she was feeble minded, she was not allowed to continue her studies at the school.
She has given evidence by signs which were interpreted by the principal of the Deaf and Dumb School, who had taught her at that school.
Her evidence, if accepted, would be a corroboration of the testimony of the victims aforesaid of the outrageous act of the appellant.
Besides this direct oral testimony, there was also evidence tending to show that the appellant was in the habit 'of having himself massaged at night by the girls of the Ashram, and that the police found a rubber sheath in his bag kept in the steel locker inside his special room.
There was also the evidence of a woman employee of the Ashram that she had been asked by the ' appellant to keep a number of rubber sheaths which she had buried underground, and which on her pointing out, had been discovered by the police.
There was also the evidence of a complaint made the next day by the victim girls to the assistant secretary when be came to the Ashram in connection with his work there.
The prosecution also led evidence to show the age of the girl Sudharani to be below 16.
It produced the register of the girls in the Ashram which has a column for mentioning the age of the inmates.
The estimate of her age by medical evidence, was given after X ray examination and the stage of ossification and other indicia for determining the age of a person.
The medical estimate of her age was that she was between 13 and 757 14 years on the date of the X ray examination, that is May 19, 1954.
That, in barest outline, is the prosecution case and the evidence adduced in support of it.
Beyond cross examining the prosecution witnesses and pointing out contradictions and omissions in their evidence, the accused did not adduce any positive evidence in support of his defence.
The appellant was tried by a jury assisted by the learned Additional Sessions Judge at Alipore.
The jury returned a unanimous verdict of guilty against the accused in respect of the charge of committing rape on Sudharani and a unanimous verdict of riot guilty in respect of the charge of rape on Narmaya.
The jury answered the judge 's question as regards the charge with respect to Narmaya in these words: "Not guilty as we found with consent and she is above 16 years of age." As the jury did not give any such clue in respect of their verdict of guilty so far as rape on Sudharani was concerned, it is difficult to say whether they found consent in her case also, and returned a verdict of guilty because they were of the opinion that she was under 16 years of age.
In this Court, the learned counsel for the appellant raised a large number of contentions, but as most of them concerned the appreciation of evidence with reference to omissions and contradictions, it is not necessary to deal with those arguments.
It is only necessary to notice the following points raised, namely, (1) that the learned judge refused permission to counsel for the appellant to read out the written statement filed on behalf of the appellant at the Sessions stage, (2) that there was a serious misdirection in respect of corroboration of the testimony of the alleged victims of rape, and (3) that the direction as to the age of the girl Sudharani was not complete.
In our opinion, there is no substance in any one of these contentions.
Firstly, as regards the refusal to permit the written statement of the accused being placed before the jury, it has to be observed that there is no provision in the 758 Code of Criminal Procedure for such a written statement being filed at the Sessions stage.
Section 256(2) which occurs in Chapter XXI, headed " Of the trial of Warrant Cases by Magistrates ", does contain the specific provision that if the accused person puts in a written statement, the magistrate shall file it with the record.
But there is no corresponding provision in the Code, requiring a Sessions Court to accept a written statement at that stage on behalf of the accused.
But the accused has the right to make a statement under section 342 of the Code, which has to be considered by the Court for what it is worth.
In a jury trial, the Court has got to be circumspect to see that nothing is allowed to be placed before the jury which is not evidence.
It is not necessary to decide whether in the case of a Sessions trial without a jury, such a statement is receivable.
But if such a written statement is allowed to be used at a Sessions trial by a jury, it may throw the door open to irrelevant and inadmissible matter and, thus, throw an additional burden on the presiding judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the written statement.
In view of these considerations, in our opinion, the learned Sessions Judge rightly refused to allow the written statement put in by the appellant, to be read out before the jury.
On the question of corroboration, the learned judge in his charge to the jury, has, at more than one place, pointed out the necessity of corroboration of the evidence of the victims of the alleged crime.
Referring to the evidence of Kalyani, P.W. 19, aforesaid, the learned judge has charged the jury in these terms: ". whether her evidence is a corroboration with respect to the committing of rape by accused on Sudharani Roy on 20th April, 1954.
If the evidence of Kalyani appears unreliable to you or the evidence of Tarun, there remain the uncorroborated testimonies of Sudharani and Narmaya.
The rule of prudence demands that it is unsafe to convict an accused on the uncorroborated testimony of an accomplice or accomplices.
But I must tell you, gentlemen, that it 759 is within your legal province to convict upon such unconfirmed evidence, provided you can come to the conclusion in the particular circumstances of this case that corroboration can be dispensed with.
" It will be noticed that if the learned judge has made any mistake, the mistake is in favour of the accused and.
not against him in so far as the learned judge refers to the evidence of the two girl victims as that of accomplices.
A girl who is a victim of an outrageous act is, generally speaking, not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it.
Hence, the girl Sudharani was not exactly in the position of an accomplice though the judge may, as a rule of prudence, warn the jury that such a rule of prudence required corroboration of the testimony of the prosecutrix, but that it was open to the jury to convict even on the uncorroborated testimony of the prosecutrix if the jury, in the particular circumstances of the case before it, came to the conclusion that corroboration was not essential to conviction.
Hence, the learned Sessions Judge was fully justified in telling the jury that there was no rule of law or practice that there must be corroboration in every case, before a conviction for rape.
If the jury had been apprised of the necessity, ordinarily speaking, of corroboration of the evidence of the prosecutrix, it is for the jury to decide whether or not it will convict on the uncorroborated testimony of a prosecutrix in the particular circumstances of the case before it.
In other words, insistence on corroboration is advisable but is not compulsory in the eye of law.
In the instant case, apart from the evidence of the two victims aforesaid, there was the evidence of the deaf and dumb girl, Kalyani, and the other circumstantial evidence in support of the prosecution case.
It is well established that the nature and extent of corroboration, necessary, vary with the circumstances of each case.
The nature of the corroborative evidence should be such as to lend assurance that the evidence of the prosecutrix can be safely acted upon.
See, in this connection, the observations of this Court in the case 760 of Rameshwar vs The State of Rajasthan (1) to the following effect: "The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.
" Lastly, we do not find anything basically wrong with the direction in the charge to the jury as regards the age of the girl Sudharani and as to the nature of the evidence to prove her age.
The learned judge pointed out the several items of evidence which had been adduced by the prosecution bearing on the question of the girl 's age.
The only conclusive piece of evidence may be the birth certificate, but, unfortunately, in this country such a document is not ordinarily available.
The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available.
The girl 's father was dead.
Her mother apparently has left her to her own fate, and according to the evidence of the police, the mother 's whereabouts were not traceable.
It was sought to be argued that the police officer who himself made the inquiry, should have been examined, otherwise, the result of the inquiry is a mere hearsay.
An inquiry whether made by one or the other police officer, would, almost in every case, be the result of hearsay.
The girl is said to be a displaced person.
The difficulty of tracing evidence of the parents of such a person is all the greater.
Hence, in all the circumstances of the case, the learned Sessions Judge has not committed any error in this part of his charge to the jury.
On this part of the case, the learned judge gave the following concluding directions: " In criminal trial the accused must get the benefit of doubt and there should not be any conviction unless it can be clearly and unequivocally said that (1) 761 the age of the girl was below 16.
But, gentlemen, in this case you have seen the girls, you have heard the evidence of the experts and you should also take into consideration the various factors found out in cross examination and in considering all these facts you can arrive at the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence on 20th April, 1954, taking into consideration the facts that ossification test is not a sure guide, even in spite of this, you can come to the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence, i.e., on 20th April, 1954.
1 would tell you, gentlemen, that the question of consent would be immaterial." In our opinion, the learned Sessions Judge placed the evidence pro and con very fairly and fully, and left it to the jury to come to their own conclusion.
According to the medical evidence, Sudharani was between 13 to 14 years of age on the relevant date, whereas the other girl in respect of whom, the accused was acquitted, was found by the medical test to be between 15 and 16 years.
The jury, therefore, took the commonsense point of view and appeared to have come to the conclusion that Narmaya may well have been above 16, and that, therefore, the accused could not be convicted for rape on her.
In respect of the girl Sudharani, they may have come to the conclusion that she was not above 16, and that, therefore, the prosecution had succeeded in bringing the charge home to the accused.
We have read the charge of the learned judge to the jury more than once, and, in our opinion, it is a very fair and full charge, erring more on the side of verbosity than of brevity.
In our opinion, there is no merit in the appeal.
It is accordingly dismissed.
Appeal dismissed.
[/INST]The respondents brothers of the deceased instituted a petition before the Motor Accidents Claims Tribunal under the , claiming compensation for the death of their brother in an accident on the ground that they were the heirs and legal representatives of the de ceased.
The Tribunal awarded a compensation of Rs.32,000 to the claimants, and directed the Gujarat State Road Transport Corporation to pay the said amount to the claimants.
The appeal of the Gujarat State Road Transport Corporation under Section 110D of the Act was dismissed by the High Court.
In the special leave petition to this Court it was contended that the Tribunal and the High Court were in error in awarding compensation in favour of the brothers of the deceased, since in law they were not entitled to any compen sation under the provisions of the , and it was submitted that the provisions in Chapter VIII of the were merely procedural in character under which an alternative forum is created for deciding the question of compensation payable in respect of injuries and death caused on account of motor vehicles accidents, that they have not modified in any manner the substantive law governing the said question, and, therefore, the principles contained in the law of torts as modified by the , alone would govern the said question even now.
Dismissing the special leave petition, this Court 405 HELD: 1.
Where a pedestrian, without negligence on his part, is injured or killed by a motorist whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all.
[416C] 2.
T0 a limited extent relief has been granted under Section 92A to the legal representatives of the victims who had died on account of motor vehicle accidents.
Compensation of Rs. 15,000 can be claimed without proof of any negligence on the part of the owner of the vehicle or of any other person.
This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident.
To that extent the substantive law stands modi fied.
[416H, 417A B] 3.
The brother of the person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110A of the Act if he is a legal representative of the deceased.
[422C] 4.
Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110A to 110F of the Act.
These provi sions are in consonance with the principles of law of torts that every injury must have remedy.
It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110B of the Act and to specify the person or persons to whom compensation shall be paid.
The determination of the compen sation payable and its apportionment as required by Section 110B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110A of the Act have to be done in accordance with well known prin ciples of law.
[421F H, 422A] 5.1 Clause (b) of sub section (1) of Section 110A of the Act provided that the application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased.
The proviso to sub section (1) of Section 110A provides that where all the legal representatives of the deceased have not joined in any such application for compen sation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application.
[419A B] 406 S.2 The expression 'legal representative ' has not been defined in the Act.
Section 2(11) of the Code of Civil Procedure, 1908 defines 'legal representative ' as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representa tive character, the person on whom the estate devolves on the death of the party so suing or sued.
[419C D] 5.3 A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an indi vidual.
[419D] 5.4 A legal representative in a given case need not necessarily be a wife, husband, parent and child.
[420B] In an Indian family brothers, sisters and brothers ' children and some times foster children live together and they are dependent upon the bread winner of the family and if the bread winner is killed on account of a motor vehicle accident, there is no justification to deny them compensa tion relying upon the provisions of the , which has been substantially modified by the provi sions contained in the Act in relation to cases arising out of motor vehicle accidents.
[422A B] 5.6 The fact that the Parliament declined to take any action on the recommendation of the Law Commission to ' define the expression 'legal representative ' suggests that Parliament intended that the expression 'legal representa tives ' in Section 110A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.
[422G] 6.1 Although Chapter VIII of the Act provides for an alternative forum for realisation of compensation payable on account of motor vehicles accidents, these provisions are not merely procedural.
They substantially affect the rights of the parties.
As the right of action created by the was "new in its species, new in its quality, new in its principles, in every way new", the right given to the legal representatives under the Act to file an application for compensation for death due to motor vehicle accident is equally new and an enlarged one.
This new right cannot be hedged in by all the limitations of an action under the .
New situations and new dangers require new strategies and new remedies.
[415G, 420E F] 407 6.2 While the provides that a suit shall be for the benefit of the wife, husband, parent and child of the deceased, Section 110A(1) of the says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased.
Section 110A(1) in a way is a substitute for the provisions of Section 1 A of the .
Similarly, Section 110B which authorises the Claims Tribunal to make an order determining the amount of compensation which appears to it to be just, and specifying the person or persons to whom the compensation shall be paid takes the place of the third paragraph of Section I A of the , 18 '55 which provides that in every such action, the court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such application shall be brought.
[420A C] 6.3 Persons for whose benefit such application can be made and the manner in which the compensation awarded may be distributed amongst persons for whose benefit the applica tion is made are dealt with by Sections 110A and 110B and to that extent the provisions of the Act do supersede the provisions of the , insofar as motor vehicle accidents are concerned.
[420D] Megjibhai Khimji Vira and another vs Chaturbhai Taljab hai and others, AIR 1977 Gujarat 195 affirmed; Budha vs Union of India and Ors., [1981] M.P. 151 overruled; Minu B. Mehta and Another vs Balkrishna Ramchandra Nayan and Another, ; ; Rylands vs Fletcher, ; , 340; P.B. Kader and others vs Thatchamma and others, A.I.R. 1970 Kerala 241; Dewan Hari Chand and Others vs Municipal Corporation of Delhi and another, A.I.R. 1973 Delhi 67; Perumal vs Ellusamy Reddiar, ; Vanguard Insurance Co. Ltd. vs Hanu mantha Rao, Pradesh); Mohammed Habi bullah and another vs K. Seethammal, A.I.R. 1967 Mad. 123; Veena Kumari Kohli vs Punjab Roadways, and Smt.
Ishwar Devi Malik vs Union of India, A.I.R. 1969 Delhi 183, referred to.
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<s>[INST] Summarize the judgementminal Appeal No. 109 of 1960.
Appeal by special leave from the judgment and order dated April 18, 1958, of the Andhra Pradesh High Court in Criminal, Misc.
Petition No. 1421 of 1957.
H. J. Umrigar and T. M. Sen, for the appellant.
The respondent did not appear.
March 8.
The Judgment of the Court was delivered by MUDHOLKAR, J.
The State of Andhra Pradesh has come up in appeal against the order passed in revision by the high Court of Andhra Pradesh quashing the charges framed against nine persons by Mr. Syed Firasath Hussain, Special Judge, Vijayawada.
The revision petition was preferred by only two of those persons.
The accused No. 1 Parthasarathi, who was a lower division clerk in the Central Excise Circle Office at Narasaraopet was in charge of the TP 1 permit books (transport permit) intended for issue to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco.
According to the prosecution two of those books containing 25 permit forms each were found missing from the aforesaid office.
The allegation is that Parthasarathi sold those books to the remaining accused for a consideration of Rs. 400.
It was found during the investigation that seven permit forms from out of these books bad been used for transport of non duty paid tobacco after blanks in those forms had been filled and the signa tures of certain Central Excise Officers forged on them.
Further, according to the prosecution, accused nos.
2 to 8 got authorisation letters prepared with the help of accused No. 9 'by forging the signatures of the supposed consignors of the tobacco.
With the help of 197 these documents the accused nos.
2 to 8 are said to have transported tobacco to the licensed premises of certain persons and received payments for the tobacco delivered to them.
The prosecution alleged that all this was done by all the accused by entering into a conspiracy, the object of which was to procure and utilise blank TP 1 forms, fill them in, forge the signatures of Central Excise Officers and use them as genuine for the purpose of transporting tobacco without paying duty upon it.
The charge sheet states that the accused nos.
1 to 9 have committed the offence under section 120 B, Indian Penal Code read with a. 5(2) of Prevention of Corruption Act, 1947 (II of 1947).
It further states that the accused No. 1 had committed offenses under section 5(1)(c) and 5(1)(d) of Prevention of Corruption Act, 1947 as also offenses under sections 420, 463 and 464, Indian Penal Code.
The accused nos.
2 to 8 are said to have abetted all these offenses.
Each of these accused is in addition said to have committed offenses under section 420, Indian Penal Code.
The Subordinate Judge, Vijayawada was appointed as Special Judge under the provisions of section 6 of the Criminal Law Amendment Act, 1952 (II of 1952) to try offenses under the Prevention of Corruption Act, 1947.
He framed the following charges: "CHARGE NO.1.
That you, Accused 1 to 9 on or about 19 9 1953 to 5 11 53 agreed to do by illegal means to wit, A 1 being a public servant in the Central Excise Department dishonestly sold two blank T.P. 1 books for Rs. 350 to one late Jogayya and obtained pecuniary advantage for himself and A 2 to A 8 and that A 9 forged 7 T.P. 1 forms, out of the above two books, which forged T.P. 1s were used by A 2, A 3, A 5, A 7, A 8 with the assistance of A 4 and A 6 and cheated the merchants of Markapur and Cumbum by using the said forged T.P. 1s for the above purpose of cheating; and that the above acts were done by all of you in pursuance of a conspiracy and that thereby you A 1 have committed an offence punishable under Section 120B of the I.P.C. read with and (d) punishable under Sec.
5(2) of the Prevention of Corruption Act and also under Sec.
109 I.P.C. read with Sec.
490, 466 and 467 of the I.P.C. and that you,A 2 to A 9 under See.
120 B read with Sec.
5(1)(c) and (d) punishable under See.
5(2) of Act 11 of 1947 and See.
420, 466 and 467 and 471 I.P.C. and within my cognizance.
CHARGE NO.
That you A 1, being a public servant in the Central Excise Department, being a Lower Division Clerk in the office of the Superintendent of Central Excise, Narasaraopet Circle, since 1951 and in such capacity were entrusted since 1951 with blank T.P. 1 books dishonestly sold two of the above said T.P. 1 books under your control to one late Jogayya for Rs. 350, in or about the month of April, 1953 and dishonestly, fraudulently misappropriated the said amount and thereby committed the offence of misconduct punishable under Section 5(2) read with See.
5(1)(c) of the Prevention of Corruption Act, 11 of 1947 and within my cognizance.
CHARGE NO. 111.
That you A 1, in the above capacity, by corrupt and illegal means, and by abusing your position as a public servant, obtained for yourself an amount of Rs. 350 being the sale proceeds of the two Blank T.P. 1 books, from one late Jogayya and obtained for A 2 to A 8, a pecuniary advantage of Rs. 10,120 14 0, th e amount of revenue due to the Central Govern ment and thereby committed the offence of Criminal misconduct punishable under See.
5(2) read with Sec.
5(1)(d) of the Prevention of Corruption Act 11 of 1947 and within my cognizance.
CHARGE TO.
That you, A 9, on or about the days between September and November, 1953 forged 7 blank T.P. ls Nos. 610432, 610443, 610460,610448,61044, 610468, 610446 as if they are documents to have been made by the Central Excise Officials in their official capacity by filling up the same within false particulars and fixing the signatures of different 199 Central Excise Officials so as to show that they are genuine T.P. 1 permits 'hat you thereby committed an offence punishable under Section 466 I.P.C. and within my cognizance.
CHARGE No. V.
That you, A p, on or about the days between September and November, 1953 forged the 7 T.P. 1 permits mentioned in Charge No, IV purporting to be valuable securities with intent and that they may be used for transporting tobacco as duty paid tobacco and that you thereby committed an offence punishable under Section 467 of the I. P. C. and within my cognizance.
CHARGE No. VI.
That you, A 2 to A 8, on, or about the days between 12 9 53 and 5 11 53 at Chodavaram, Satulur, Velpur and Tenali dishonestly used the above seven forged T.P. Is mentioned in Charge No. IV as genuine, Which you know at the time you used them as forged documents and transported 26,989 lbs.
non duty paid tobacco as duty paid tobacco by quoting the above fictitious documents as proof of payment of duty and that you ' thereby committed an offence punishable under Section 465 and 471 of the I.P.C. and within my cognizance.
CHARGE No. VII.
That you, A 2 to A 8, on or about the days between 19 9 53 and 6 11 53 at Cumbum and Mar kapur cheated (1) B. Ranga Subbayya of Cumbum (2) P. C, h. Venkata Subbaiah and (3) Shri B. Seshaiah of Markapur and thereby dishonestly inducing them to deliver you, Rs. 10,994 10.3, was the property of the above said persons; and that you thereby committed an offence punishable under Section 420 I.P.C. and within my cognizance.
" While seven of the accused persons were content with the charges,, two preferred an application for revision before the High Court which, as already stated, accepted it and quashed the charges and directed the Special Judge to frame fresh charges on the lines indicated in the judgment.
200 Mr. Umrigar, who appears for the State of Andhra Pradesh, while conceding that Charge No. 1 as it stands, is involved and obscure and requires to be reframed takes exception to the observation of the High Court that the charge is bad for multiplicity.
,It not quite clear what the High Court me ant.
If it meant that separate charges should be framed for different offenses there can be no objection; but if it meant that all these accused cannot be tried at the same trial then we have no doubt that it was in error.
The High Court pointed out that this is an omnibus charge containing as many as 203 offenses and that it is 'in direct violation of sections 234, 235 and 239 of the Code of Criminal Procedure.
No doubt, sub section
(1) of section 234 provides that not more than three offenses of the same kind committed by an accused person within the space of 12 months can be tried at the same trial.
But then section 235(1) provides that if in any one series of acts so connected together as to form the same transaction more offenses than one are committed by the same person, he may be charged with and tried at one trial for every such offence.
Therefore, where the alleged offenses have been committed in the course of the same transaction the limitation placed by section 2314(1) cannot operate.
No doubt, the offence mentioned, in charge No. 1 is alleged to have been committed not by just one person but by all the accused and the question is ' whether all these persons can be jointly tried in respect of all these offenses".
To this kind of charge s.239 would apply.
This section provides that the following persons may be charged and tried together, namely: (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused 'of an offence and persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different, offenses committed in the course of the same transaction.
Clearly, therefore, all the accused persons could be tried together in respect of all the offenses now comprised in charge No. 1.
We, however, agree with 201 Mr. Umrigar that it would be desirable to split up charge No. 1 suitably go that the accused persons will not be prejudiced in answering the charges and in defending themselves.
The learned Judge has hold, following a decision of a single Judge in In re Venkataramaiah (1) that no charge of conspiracy is permissible for committing which the conspiracy was entered into and which had actually been committed.
In that case the learned Judge had observed as follows at p. 132: "Where the matter has gone beyond the stage of more conspiracy and offences are alleged to have been actually committed in pursuance thereof, these two sections are wholly irrelevant.
Conspiracy, it should be borne in, mind, is one form of abetment (see section 107 I.P.C.) and where an offence is alleged to have been committed by more than two persons, such of them as actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under section 109 I.P.C. The Explanation to section 109 makes this quite clear.
An offence is said to be committed in consequence of abetment, when it is committed in pursuance of the conspiracy, and the abettor by conspiracy in made punishable (under section 109) with the punishment provided for the actual offence.
" We are unable to accept this view.
Conspiracy to commit an offence is itself an offence and a person can be separately charged with, respect to such a conspiracy.
There is no analogy between section 120B and section 109 I.P.C. There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment.
Offences created by section 109 and 120B, I.P.C. are quite distinct and there is no warrant for limiting the prosecution to only one element of con spiracy, that is, abetment when the allegation is that what a person did was something over and above that.
Where,& number of offences are committed by (1) A.I.R. 1935 Mad. 130, 132. 202 several persons in pursuance of a conspiracy it is usual to charge them with those, offences as well as with the offence of conspiracy to commit those offences.
As an instance of this we may refer to the case in section Swaminatham vs State of Madras (1).
Though the point was not argued before this Court in the way it appears to have been argued before the Madras High Court and before the High Court of Andhra Pradesh, this Court did not see anything wrong in the trial of several persons accused of offences under section 120B and section 420 I.P.C. We cannot, therefore, accept the view taken by the High Court of Andhra Pradesh that the charge of conspiracy was bad.
If the alleged offences are said to leave flown out of the conspiracy the appropriate form of charge would be a, specific charge in respect of each of those offences along with the charge of conspiracy.
Before leaving this point we would like to refer to the decision in R. vs Dawson (2) which Mr. Umrigar very fairly brought to our notice, respondents being ex parte.
In that case Finnemore J. who delivered the judgment of the Court observed: "Now with regard to the first count for con spiracy. . this court feels it is desirable 'Jo say something.
This court has more than once warned of the dangers of conspiracy counts, especially these long Conspiracy counts, which one counsel referred to as a mammoth conspiracy.
Several reasons have been given.
First of all if there are substantive charges which can be proved, it is in general undesirable to complicate matters and to lengthen matters by adding a charge of conspiracy.
Secondly, it can work injustice because it means that evidence, which otherwise would be inadmissible on the substantive charges against certain people, becomes inadmissible.
Thirdly, it adds to the length and complexity of the case so that the trial may easily be well High unworkable and impose a quite intolerable strain both on the Court and on the jury.
The learned Judges in fact quashed the conviction (1) A.I.R. 1957 S.C. 340, 343, 344.
(2) [1960] 1 All.
E.R. 558, 563.
203 for conspiracy in the case before them.
We agree that it is not desirable to charge the accused persons with conspiracy with the ulterior object of letting in an evidence which would otherwise be inadmissible and that it is undesirable to complicate a trial by introducing a large number of charges spread over a long period.
But then this is only a question of propriety and it should be left to the Judge or the magistrate trying the case to adopt, the course which he thinks to be appropriate in the facts and circumstances of the case.
It cannot be said as a matter of law that such a trial is prohibited by the Code of Criminal Procedure.
The High Court has further held that the learned Special Judge had no jurisdiction to try the offences under section 120B read with sections 466, 467 and 420 because he was appointed a Special Judge under the Criminal Law Amendment Act only for trying offences under the Prevention of Corruption Act.
No doubt, he was appointed in the circumstances stated by the High Court, and therefore he will have that jurisdiction which he is competent to exercise under the Prevention of Corruption Act or the Criminal Law Amendment Act.
Section 6 of the former provides that the State Government may appoint a Special Judge to try the following offences: (a) an offence punishable under section 161, section 165 or section 165A of the Indian Penal Code (Act XLV of 1860) or sub section (2) of section 5 of the Prevention of Corruption Act, 1947 (11 of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
Sub section
(1) of section 7 provides that notwithstanding any.
thing contained in the Code of Criminal Procedure, 1898 or in any other law the offences specified in sub section
(1) of section 6 shall be triable by special judges only.
Sub section
(3) of section 7 provides that when trying any case, a special judge may also try any offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure, 1898 be charged at the same trial.
204 Clearly, therefore, accused No. 1 could be tried by the Special Judge for offences under 'section ' 120 B read With sections 466, 467 and 420 I.P.C. Similarly the other accused who are, said to have abetted these offences could also be tried by the Special Judge.
The view of the High Court is thus erroneous and its directions with respect to these offences are set aside.
The High Court has further held that the provisions of a 196A(2) of the Code of Criminal Procedure have not been complied with and therefore the charges in respect of offences under as.
466 and 467 could not be enquired into by the Special Judge; section 196A(2) of the Code of Criminal Procedure reads thus: "No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Indian Penal Code, (2) in a case where the object of the conspiracy is to commit any non cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years, or upwards, unless the State Govern ment, or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government, has, by order in writing, consented to the initiation of the proceedings: Offences under sections 466 and 467 are admittedly non cognizable and, therefore, it would seem from the plain language of sub section
(2) that for the offences under section 120 B read with sections 466 and 467, I.P.C. the sanction of the Government will be necessary.
Mr. Umrigar referred us to the decision in Durgadas Tulsiram Sood vs State (1) and said that since the object of the conspiracy was to cheat the Government, that is, to commit an offence under section 420 I.P.C. and the offences under as.
466 and 467 were only means to that end, the trial was not vitiated simply because no sanction was obtained for prosecuting the accused for offences of criminal conspiracy to commit non cognizable offences; under as.
466 and 467 I.P.C.
We do not think it necessary to say anything on the point because in (1) I.L.R. 205 any case the case has to go back to the Special Judge for re framing the charges and there is time enough for the Government to consider whether it should accord sanction to the prosecution of the various accused for the non cognizable offences alleged to have been committed by them in pursuance of conspiracy, assuming of course, that sanction is necessary.
In the result we allow the appeal and set.aside the order of the High Court and direct the Special Judge to, frame fresh charges and proceed with the trial.
The matter has been pending for a long time and we direct that the trial will proceed with.
all expedition.
Appeal allowed.
Retrial ordered.
[/INST]The assessee, a Hindu undivided family, owned a tea estate in Assam comprising a tea garden, factories, labour, quarters, staff quarters etc.
On February 27, 1942, the military authorities requisitioned all the factory buildings etc., under the Defence of India Rules but the tea garden, however, was left in the possession of the assessee.
The possession of the military continued till the year 1945 and during that period, though the assessee looked after its tea garden, its business as tea growers and tea manufacturers could not be continued.
Under the Defence of India Rules, the military authorities paid the assessee as compensation a sum of Rs. 2,22,080 for the year 1944, which included Rs. 10,000 for repairs to quarters for labourers, and a sum of Rs. 2,46,794 for the year 1945, which included Rs. 15,231 for repairs.
For the assessment years 1945 1946 and 1946 47 the question arose as to whether the aforesaid sums or any portion thereof were capital receipts or were revenue receipts and liable to tax.
The facts showed that the business, which the assessee had been carrying on, consisted in growing tea plants and in making tea out of the leaves by a manufacturing process into a commercial commodity, that without the factory and the premises the tea leaves could not be dried, smoked and cured to become tea, and that the result of the requisition of the factories was to stop the business.
Held, that the amounts paid by the military authorities were received by the assessee not as compensation for the loss of profits of the business which it had been carrying on but for the injury to the business as a whole, because the entire structure of business was affected to such an extent that no business was carried on by the assessee during the two years in question.
Accordingly, the compensation could not bear the character of profits of a business and was not liable to tax under section Io of the Indian Income tax Act, 1922.
Income tax Commissioner vs Shaw Wiallace & CO., (1932) L.R. 59 I.A. 206, referred to and applied.
Case law reviewed.
33 258
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<s>[INST] Summarize the judgementCivil Appeal No. 32 of 1971.
Appeal from the judgment and order dated March 12, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 184 of 1965.
I. N. Shroff, for the appellants.
V. section Desai, section K. Mehta, K. L. Mehta, V. K. Sapre and K. R. Nagaraja, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
The short question that arises for consideration in this appeal, on certificate, is whether the High Court has complied with the directions given by this Court in its judgment dated January 25, 1968 in Civil Appeals Nos. 1244 and 1245 of 1967 and adjudicated upon the question whether the claim made by the respondent that the tanks and wells in question were constructed on "occupied I and" belonging to the Jagirdar within the meaning of section 5(c) of the Madhya Bharat Abolition of Jagirs Acts, Samvat 2008 (Act 28 of 1951) (hereinafter to be referred as the Abolition Act).
The facts leading up to the present decision of the High Court may be stated: In Samvat 1885 the Ruler of the erstwhile Gwalior State conferred on the predecessor in title of the respondent the Jagir of Mauza Siroli situated in Pargana Gwalior.
The Abolition Act came into force on December 4, 1952.
Section 3 provides for resumption of Jagir lands by the Government.
Under sub section (3), the date appointed under section 3 as the date for resumption of Jagir lands is "the date of resumption '.
After the issue of notification under section 3, appointing a date for resumption, all the property in the Jagirdar including Jagir lands, forest, trees, fisheries, wells, tanks, ponds etc.
stood vested in the State under section 4 of the Abolition Act.
But under section 5 (c) all tanks, trees, private wells and buildings in or on the occupied lands, belonging or held by the Jagirdar or any other person, were excluded from vesting.
After the abolition of Jagirs under the Abolition Act, proceedings were initiated for determining the compensation payable to the respondent and the same was determined.
Out of the amount, so determined, certain loans were deducted and the balance amount was paid.
The Madhya Pradesh Land Revenue position ultimately was that the entire extent of the tanks was in 'occupied as the Code) came into force on October 2, 1959.
Section 251 866 of the Code provided for vesting in the State Government all ranks situated on unoccupied lands, in the circumstances mentioned therein.
The said section made provision for claiming compensation in the manner laid down therein.
The respondent on April 5, 1961 made an application to the Collector, Gwalior under section 251 of the Code claiming com pensation for tanks which, according to him, had been built by himself and his predecessor in title over an area of 1679 bighas and 18 biswas of land.
There were various orders passed by the authorities in connection with the said claim for compensation.
The respondent moved the Madhya Pradesh High Court under article 226 of the Constitution by two writ petitions to quash two orders of the Collector of Gwalior and two orders of the Additional Commissioner, Gwalior Division.
The writ petitions were opposed by the State on the ground that the four tanks claimed by the writ petitioner were really not tanks and in any case the tanks were not on "occupied land" within the meaning ,of section 5 (c) of the Abolition Act and the wells claimed by him had also vested in the State under section 4(1)(a) of the Abolition Act.
The High Court by its judgment dated November 30, 1966 allowed the writ petitions and quashed the four orders, referred to above, on the ground that the claim made by the respondent that the tanks were on "occupied land" under section 5(c) of the Abolition Act, has to be decided by the Jagir Commissioner in the manner required under section 17 of the said Act.
The State challenged before this Court in Civil Appeals Nos. 1244 and 1245 of 1967, the decision of the Madhya Pradesh High Court. 'Me contention raised on behalf of the State was that section 17 of the Abolition Act had no application and that it was the function of the Jagir Commissioner alone to inquire whether the claim of the writ petitioner under section 5(c) of the Abolition Act was well founded on merits and then refer the matter for the final decision of the Government under section 17 of the Abolition Act.
After a consideration of the scheme of the Abolition Act and in particular of section 17, this Court accepted the contention of the State and held that the inquiry contemplated under section 17 by the Jagir Commissioner relates to compensation to be paid to the Jagirdar whose Jagir is vested in the State Government and once the compensation is determined and paid, no further inquiry under section 17 is contemplated.
In this view, by its judgment dated January 25, 1968, this Court set aside the orders passed by the High Court.
This Court further held that the writ petitioner, namely, the present appellant before us" is, not left without any remedy to 867 agitate his claim that the, tanks and wells claimed by him were constructed on occupied land and that they have been saved from vesting in the Government under section 5(c) of the Abolition Act.
It was held that if the writ petitioner was able to establish this plea, the State Government will have no power or authority to take possession of such tanks and wells, as the title thereto did not vest in it in view of section 5 (c) of the Abolition Act.
It was further held that section 5 (c) has an over riding effect on section 4 of the Abolition article In this view this Court held that it was the duty of the High Court to have decided the jurisdictional fact as to whether the tanks and wells claimed by the present respon dent belonged to the Jagirdar within the meaning of section 5(c) of the Abolition Act and that, if the High Court accepted the said contention, the High Court was competent to issue a writ under article 226 of the Constitution directing the State to hand over possession of the said tanks and wells to the writ petitioner.
Ultimately, for all the reasons given in its judgment, this Court set aside the decision of the High Court and remanded the proceedings for deciding afresh the claim made by the writ petitioner under section 5(c) of the Abolition Act.
Liberty was given to the parties to place before the High Court such further evidence, oral and documentary, as they may desire to give on the point at issue.
The main judgment was given in Civil Appeal No. 1245 of 1967.
For the same reasons given in the said judgment, Civil Appeal 1244 of 1967 was also remanded in accordance with the directions given in Civil Appeal No. 1245 of 1967.
The said decision of this Court is reported in State of Madhya Pradesh and others vs Sardar D. K. Jadhav(1).
After remand, when the matter was taken up by the High Court, both the appellant and the respondent, filed many documents and examined witnesses with particular reference to the claim regarding the wells and the tanks made by the respondent under section 5(c) of the Abolition Act.
The respondent laid his claim on the ground that the tanks and wells had been constructed on lands which were his Khud kasht lands as also on lands held on tenure by other persons.
But ultimately his claim was on the basis that the wells and tanks were all on occupied land belonging to the Jagirdar or any other person, as laid down under section 5(c) of the Abolition Act.
The State, on the other hand, denied the right of the respondent to claim any right in the said tanks and wells on the ground that they were not located on occupied land belonging to the Jagirdar, but were situated on lands which were in the possession ,of tenants.
Hence, according to the State, the said tanks and (1) ; 868 wells were not saved to the respondent under section 5 (c) of the Abolition Act, and that they have vested in the State, as rightly held by the Revenue authorities.
In short, the contention of the State appears to have been that only those tanks and wells, which are on occupied land belonging to the Jagirdar and in his possession as Khudkasht land alone are saved under section 5 (c) of the Abolition Act.
At this stage we may mention that though the respondent laid claim to certain wells also in addition to the tanks, it is seen from the judgment of the High Court that during the stage of arguments, it was represented on his behalf that three out of five wells were already in his possession and that no adjudication is necessary regarding those wells.
Regarding the other two wells, it is also seen that the respondent abandoned his claim before the High Court.
Therefore, the entire controversy, which the High Court had to decide centred round the claim, regarding the tanks, made by the respondent under section 5 (c) of the Abolition Act.
Though various maters have been adverted to by the High Court in its judgment, its material findings are as follows : That the four tanks_ as also the pick up weir are tanks within the meaning of the Abolition Act.
The four tanks as also the pick up weir belonged to the respondent at the time of the resumption of Jagirs under the Abolition Act, namely, December 4, 1952; Section 5 (c) is clearly attracted it the right of ownership or possession of the tanks belonged either to the Jagirdar or to any other person as against the said right belonging to the community at large or the State.
The fact that a part of the bed of the tanks may be in the occupation of tenants is of no consequence in holding in favour of the respondent under section 5 (c) of the Abolition Act; The entire area of the tanks in the possession of the respondent must as his Khud Kasht land and also in the occupation of the tenants are both saved under section 5 (c) and do not vest in the State under section 4 of the Abolition Act.
On these findings, the High Court accepted the contention of the respondent and held that the tanks claimed by him are saved under section 5 (c) and they have not vested in the State under the Abolition Act.
We may state at this stage that the High Court has not thought it necessary to consider the precise area of each one of the tanks as the tenants were not parties to the proceedings.
Ultimately, the High Court held that on resumption of Jagirs under the Abolition Act, the four tanks and the pick up weir are saved to the respondent under section 5(c) of the Abolition Act, subject to certain observations contained in the judgment.
In consequence, the High Court quashed the four orders of the Revenue authorities, referred to, in the judgment.
869 Though Mr. I.N.Shroff, learned counsel for.
the State, has raised several contentions, in our view, most of them do not survive in view of the specific directions contained in the order of remand passed by this Court.
The only two contentions that have been advanced by him and require to be considered are : (1) That the High Court has not complied with the directions given by this Court in its order of remand; and (2) The High Court has not found that the said tanks are situated on "occupied land" so as to be saved under section 5(c)of the Abolition Act.
The counsel has, no doubt, pointed out certain other circumstances, which, ,according to him, constitute an infirmity in the judgment of the High Court.
On the other hand, Mr. V., section Desai, learned counsel for the respondent, has pointed out that the directions of this Court have been fully complied with and that after a very elaborate consideration of the materials placed before it by both the parties, the High Court has recorded a finding that the tanks claimed by the respondent are on "occupied land" belonging to or held by the Jagirdar or any other person as required under section 5 (c) of the Abolition ' Act.
The fact that the High Court has not considered is necessary to adjudicate upon the exact area of the tanks is of no consequence because that is a matter to be decided as between the Jagirdar and the other tenure holders, if any.
Once the requirement that the tanks are on occupied land and that they belong to the Jagirdar or to,any other person is satisfied they are saved under section 5(c) of the Abolition Act.
That was the only point that the High Court was, directed to adjudicate upon and on.
that aspect clear findings have been recorded by it.
Before we deal with the contentions of the learned counsel on both sides, it is necessary to refer the material provisions of the Abolition" Act.
The expressions "Homestead" and "Occupied land" are defined in sub clauses (iv) and (ix) of section 2(1) and they are as follows: "2 In this Act unless the: context otherwise requires (iv)"Homestead" means a dwelling house together with any court yard, compound or attached garden or bari and includes any out building used for agricultural purposes and any tank or well appertaining to the dwelling house.
(ix) "Occupied land" means land held immediately the following tenures, namely, L36 SupCI/72 870 (a) Ex proprietary; (b) Pukhta Maurusi; (c) Mamuli Maurusi; (d) Gair Maurusi; and includes land held as Khud kasht and land comprised in a homestead;" Section 3 deals with resumption of Jagir lands by the Government.
As we have already mentioned the date of resumption is December 4, 1952.
Section 4 enumerates the various items which vest in the State, unless the contrary has been provided in the Abolition Act.
Section 5 saves, from vesting certain items arid clause (c), which is material is as follows: "Section 5 : Private wells, trees, buildings, house sites and enclosures.
Notwithstanding anything contained in the last preceding section (c) all tanks, trees, private wells and buildings in or on occupied land belonging to or held by the Jagirdar or any other person shall continue to belong to or, be held by such Jagirdar or other person.
Regarding the first contention we are satisfied that the High Court has complied with the directions given by this Court in its remand order.
The High Court was directed to decide the jurisdictional fact as to whether the tanks and wells claimed by the respondent belonged to the Jagirdar and were saved under section 5(c) of the Abolition Act.
Therefore, the only investigation that had to be made by the High Court was on the point, referred to above.
In fact, it is seen that the High Court has been very considerate when it allowed the appellant to raise various other questions, such as, the locus standi of the respondent, to file the writ petition, the question of non impleading of the tenants in possession of lands over which part of the tanks are situated and the undue delay in filing the writ petition.
Further, the High Court has allowed the appellant to raise the question that the respondent is estopped from seeking relief regarding the tanks under section 5(c) in view of the stand taken by him before the Revenue authorities in his application for award of compensation.
These matters should not have been permitted to have been raised by the appellant.
If these contentions were available to the appellant, they should have been raised be fore this Court in the appeals, referred to earlier.
Any how the High Court has gone into those matters and held against the appellant.
Therefore, far from not complying with 871 the directions given by this Court, it has even allowed the appellant to raise certain contentions which were.
not available to it at the stage when the matter was being considered after remand.
Therefore, the first contention will have to be rejected straightaway.
Regarding the second contention, it is also clear from the judgment of the High Court that it has very elaborately considered the various aspects presented; to it, both by the appellant as well as the respondent.
After a consideration of the materials so placed before it and having due regard to the provisions of the Abolition Act, the High Court, as we, have pointed out earlier, has considered, as directed by this Court, the main question whether the tanks are saved under section 5(c) of the Abolition Act.
In that connection the High Court had naturally to consider the scope of the definition of "Occupied land" under section 2 (1) (ix) of the Abolition Act.
It is after a consideration of all these aspects that the High Court has found that the four tanks belonged to the respondent at the time of resumption.
and the said tanks were on occupied land belonging to the Jagirdar or any other person.
Therefore, it considered the question properly as per the remand order and has given a finding on the same.
As to whether the said finding is correct or not, is a different matter.
But the criticism that it has not considered the point regarding the saving of the tanks under section 5(c) of the Abolition Act, cannot be accepted.
Now coming to the merits, it is clear that as and from the date of resumption, the consequences enumerated under section 4 will have full effect.
Except as otherwise provided in the Abolition Act, normally under cl.
(a) of Section 4(1) the right, title and interest of every Jagirdar and of every other person claiming through him in his Jagir lands including among other items, tanks, shall stand resumed to the State.
The saving is provided under section 5.
If the respondent is able to establish that the tanks in question are on occupied land belonging or hold by the Jagirdar or any other person, then those tanks are saved in favour of the respondent under section 5 (c) of the Abolition Act.
It may be mentioned at this stage that though the items are, all described as tanks, it is in evidence that they get submerged at times and at other times portions of the same are being cultivated either by the respondent or by other s under certain tenures.
That is, parts of the tanks are included and held by the respondent as khud kasht and rest of it is held by the tenure holders, who have got tenancy rights over them.
As the other tenure holders, namely, the tenants, were not parties before the High Court, the question of the extent of the area of the tanks was not decided and it was left open.
But the 872 entire extent of the tanks had been given by the respondent as 1679 bighas and 18 biswas of land and this claim was fully known to the Revenue authorities, who raised the specific plea that the said tanks are not on occupied land.
Therefore, the circumstance that the High Court did not adjudicate upon the question of the extent of the tanks, is of no consequence and it is not material for the point in dispute.
In order to get the tanks in question saved under section 5 (c) of the Abolition Act, the respondent will have to establish They were on occupied land; and (b) They belonged to or were held by the Jagirdar or any other person.
We have already extracted the definition of "occupied land '.
The essential ingredient of such land is that it must have been held immediately before the commencement of the Abolition Act under one or other of the four tenures mentioned in sub cls.
(a) to (d).
We have not been shown about the, existence of any other type of tenure.
The occupied land will also include as per the definition lands held by the Jagirdar as khud kasht as well as the land com prised in a homestead.
Therefore, occupied land comprises broadly of two types of lands: (1) four categories of land held under the tenures enumerated in sub clauses (a) to (d); and (2) comprised in khud kasht and "Homestead".
To attracted cl.
(c) of section 5, the tank must be shown ' in the first instance, to be on occupied land, that is, on land comprised under the tenures enumerated in sub clauses (a) to (d) or in the land held, as khud kasht and homestead.
In our opinion, it is not necessary that the entire tank should be exclusively situated in one or other of the tenures enumerated in sub clauses (a), to (d) of s.2 (1) (ix) on exclusively in the land herd as khud kasht and land comprised ' in homestead.
The requirement of the tanks in question being ;on occupied land, will be satisfied even if, part; of the: tanks is situated in one or other of the tenures mentioned in sub clauses (a) to (d) of cl.
(ix) of section 2 (1 ) and the rest of it is included in, the land held ;Is khud kasht and land comprised in a homestead.
That is the entire area of the tank must be comprised in either the tennures of the khudkasht and homestead or in both.
Therefore, it is not.
possible, to: accept the contention advanced: on behalf if the appellant State that only those tanks ', which are on khud kasht land of the Jagirdar are saved to him. ' Acceptance of such a contention will be ignoring the clear wording of cl (ix) of section 2(1), which takes in also lands held on the various tenures referred to therein.
From this, it follows that the mere fact that a part of the tanks is in the occupation of 'the tenants as ' tenure holders does not detract from operation of the saving cl.(c) of 'section 5.
There is no controversy that at the material date the occupied lands on which 873 tanks are situated belonged to or were held by the Jagirdar or any other person.
The expression "any other person" is comprehensive enough to take in the persons who were holding the land on one or other of the.
tenures, enumerated.in sub clauses (a) to (id) of section 2(1) (ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of the respondent, as his khud kasht or homestead and in the possession of the tenure holders, the position ultimately is, that the entire extent of the tanks is in "occupied land" belonging to or held by the Jagirdar or any other person.
The actual extent and the area held by the Jagirdar and the tenure holders can be worked out only in the presence of both those parties.
To conclude, we are satisfied that the High Court has appealed the correct test.
to find out whether the.
tanks are saved under section ) of the Abolition Act.
We, are also in agreement with the finding of the High Court that the four tanks and the pick up weir are saved to the respondent under section 5(c) of the Abolition Act.
In the result, the judgment and order of the High Court are confirmed and this,appeal dismissed with costs G. C. Appeal dismissed.
[/INST]Under section 5(c) of the Madhya Bharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951) all tanks, trees etc.
in or on 'occupied lands ' belonging to or held by the Jagirdar or any other person were excluded from vesting in the State by virtue of section 4.
The respondent filed a writ petition in the High Court claiming that certain tanks built by himself and his predecessor in title were on 'occupied land ' and therefore came within the protection of section 5(c).
The original order passed by the High Court in the writ petition was set aside, by this Court and the High Court was directed to decide afresh the claim made by the writ petitioners under section 5(c) of the Act.
After considering the evidence before it on this question the High Court held that the ' tanks in question were saved under section 5(c) and they had not vested in the State under the Abolition Act.
In appeal by the State to this Court, HELD: 'Occupied land ' as defined in section 2(1) (ix) of the Act comprises broadly two types of lands : (1) four categories of land held under the tenures enumerated in sub clauses (a) to (d); and (2) comprised in Khud Kasht and 'homestead '.
To attract cl.
(c) of section 5 the tank must be shown in the first instance to be on occupied land that is on land comprised under the tenures enumerated in sub clauses (a) to (d) or in the land held as Khud kasht and homestead.
It is not necessary that the entire tank should be exclusively situated in the land held as khud kasht and land comprised in homestead.
The requirement of "he tanks in question being an occupied land will be satisfied even if part of the tank is situated in one or the other of the tenures mentioned in sub clause,,; (a) to (d) of cl.
(ix) of section 2(1) and the rest or it is included in the land held as khud kasht and the land comprised in a homestead.
That is, the ,entire area of the tank must be comprised in either the tenures or the khud kasht or homestead or in both.
Therefore it was not possible to accept the contention advanced on behalf of the appellant State that only those tanks which are on khud kasht land of the Jagirdar are saved to him.
Acceptance of such a contention will be ignoring the clear working of cl.
(ix) of section 2(1) which takes in also lands held on the various tenures referred to therein.
[871 D G] Therefore in the present case the mere fact that a part of the tanks was in the occupation of the tenants as tenure holders did not detract from the operation of the saving cl.
(c) of section 5.
The expression 'any other person ' is comprehensive enough to take in the persons who were holding the land on one or the other of the tenures enumerated in subclauses (a) to (d) of section 2(1)(ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of the respondent, as his khud kasht or homestead and in the possession of the tenure holders the position ultimately was that the entire extent of the tanks was in :occupied land ' belonging to or held by the Jagirdar or any other person.
[872 H,873 B] 865 The judgment of the High Court must accordingly be upheld.
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<s>[INST] Summarize the judgementCivil Appeal No. 1487 of 1984.
Appeal by Special leave from the Judgment and Order dated the 21st August, 1981 of the Allahabad High Court in Civil Misc, Writ Petition No. 9820 of 1981 Harbans Singh for the appellant.
Abdul Kader and G.S. Narayanan for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This is an appeal by Special Leave directed against an order of the High Court of Allahabad dismissing a writ petition filed by the appellants claiming refund of a sum of Rs. 22681.88 from the Levy Sugar Price Equalisation Fund under Section 6, sub section (1) of the (hereinafter referred to as the Equalisation Fund Act).
The facts of the case are few and may be briefly stated as follows: The appellants carry on business of manufacture of syrups, squashes, jams and jellies, preservation of vegetables and other food products.
One of the essential raw materials for these products manufactured by the appellants is sugar.
There was at the material time Sugar Control Order 1966 issued under section 3 of the , clause 4 of which provided that no purchaser shall sell or agree to sell or otherwise dispose of sugar or deliver or agree to deliver sugar or remove any sugar from the bonded godown of the factory in which it is stored, except under and in 209 accordance with the directions issued in writing by the Central Government or the Chief Director.
Pursuant to this Order the Central Government introduced the policy of partial decontrol of sugar in August, 1967 and under this policy, the Central Government adopted a scheme of acquiring levy sugar from the factory.
The price of levy sugar acquired by the Central Govt.
was fixed every year in accordance with the principles set out in Section 3 (3c) of the and during the period in question the price of levy sugar was determined under the sugar (Price Determination) Order 1972.
This order was however challenged by factories manufacturing sugar and an interim order was passed by the High Court of Allahabad permitting them to charge a price higher than that fixed under the order, on condition that they furnished bank guarantee for the difference in price in favour of the Registrar of the High Court.
Now, different prices were fixed under the sugar (Price Determination) order, 1972 for different zones and so far as the East U.P. Zone was concerned, the price fixed was Rs. 175 per quintal exclusive of excise duty, sales tax etc.
with the result that the price inclusive of these taxes and duties amounted to Rs. 190 per quintal.
The appellants purchased from K.M. Sugar Mills Limited, Motinagar, Faizabad a certain quantity of sugar under a release order issued by the Central Government under the Levy Sugar Supply (Control) order 1972 and they lifted an aggregate quantity of 400 quintals of sugar on 12 8 1972 and 16 8 1972.
Now, under the sugar (Price Determination) order, 1972 K.M. Sugar Mills Limited were not entitled to recover from the appellants price at a rate exceeding Rs. 190 per quintal but by virtue of the stay order granted by the High Court of Allahabad they recovered from the appellants price at the rate of Rs. 234.89 per quintal and the total excess amount charged by K.M. Sugar Mills Limited from the appellants thus came to Rs 22681.88 for which bank guarantee was given by K.M. Sugar Mills Limited in favour of the Registrar of the High Court.
The writ petition filed by K.M. Sugar Mills Limited against the Sugar (Price Determination) Order, 1972 along with other similar writ petitions filed by other manufacturers of sugar was however, ultimately dismissed by the Allahbad High Court in November, 1974 with the result that the Registrar of the High Court became entitled to encash the bank guarantee given by K.M. Sugar Mills Limited and a sun of Rs. 22,681.88 was accordingly recovered by the Registrar under the bank guarantee.
Since the excess amount recovered by the various manufactu 210 rers of sugar, including K.M. Sugar Mills Limited really belonged to the consumers to whom sugar had been sold by these manufacturers, Parliament enacted with effect from 1 4 1976 for the purpose of ensuring that the excess amount so recovered should not remain in the hands of manufacturers of sugar so as to unjustly enrich them but should be paid to the consumers of sugar from whom it had been unlawfully recovered by the manufacturers.
Section 3(1) of the Equalisation Fund Act established a Fund known as the Levy Sugar Price Equlisation Fund.
Sub Section (2) of Section 3 provided that there shall be credited to the Fund amounts representing all excess realisations made by the manufacturers, irrespective of whether such realisations were made before or after the commencement of the Equalisation Fund Act.
Pursuant to this provision, the Registrar of the High Court deposited a sum of Rs. 22681.88 to the Credit of the Fund.
Section 6 of the Equalisation Fund Act then proceeded to enact that where any amount of excess realisation is credited to the Fund, the buyer of Levy sugar from whom such excess realisation was made by the manufacturer shall be entitled to the refund of such excess realisation from the Fund.
This Section is material for the purpose of determination of the controversy arising in the present appeal and we would, therefore, reproduce it as follows: (1) Where any amount is credited to the Fund a refund shall be made from the Fund to the buyer of Levy Sugar from whom any excess realisation was made by the producer or dealer, Provided that no buyer shall be entitled to claim as refund under this sub section if he (a) being the wholesale dealer, had passed on the incidence of such excess over the controlled or fair price of levy sugar to the retail dealer by whom the price of such sugar was paid or (b) being a retail dealer, had passed on the incidence of such excess over the controlled or fair price of levy sugar to the consumer by whom the price of such sugar was paid.
" Since a sum of Rs. 22681.88 represented excess realisation 211 made by K.M. Sugar Mills Limited from the appellants and this amount was credited to the Fund by the Registrar of the High Court, the appellants filed an application in form IV making a claim for refund of this amount from the Fund.
This application was filed by the appellants, on 30th April, 1979, admittedly within the prescribed period of six months.
The Central Government, however, rejected the claim made by the appellants on the ground that they had not been able to establish fully and clearly that the incidence of higher sugar price was not passed on by them to the consumers of the end products.
The appellants thereupon preferred a Writ Petition in the High Court but the High Court also rejected the Writ Petition on the same ground, namely, that according to the finding recorded by the Central Government the appellants had not been able to establish fully and clearly that the incidence of higher sugar price was not passed on to the consumers of the end products and since this was a finding of fact base on evaluation of the material and evidence produced by the appellants before the competent authority, the High Court would not be justified in interfering with the order of the Central Government.
The appellants thereupon preferred the present appeal with special leave obtained from this Court.
The main point of controversy between the parties centres round the true interpretation of section 6 Sub section (1) of the Equalisation Fund Act.
This provision lays down as a condition precedent to its applicability that the excess realisation made by the manufacturer of sugar should have been credited to the Fund.
Now, the application made by the appellants in from IV stated in so many terms that the amount in question had been deposited by the Registrar of the High Court in terms of the Levy Sugar Price Equalisation Fund Rules, 1972, through the Chief Pay & Accounts Officer, Govt.
Of India, Ministry of Agriculture & Irrigation, Department of Food, New Delhi.
This statement was not at any time disputed on behalf of the Central Government either in the order made by the Central Government rejecting the claim of the appellants or in the proceedings before the High Court.
It is indisputable that a sum of Rs. 22681.88 representing the excess realisation made from the appellants by K.M. Sugar Mills Limited was credited to the Fund by the Registrar of the High Court.
And in any event, this must be 212 presumed to have been done because the Equalisation Fund Act having been enacted for this purpose, the Registrar of the High Court would naturally be expected to carry out his obligation under the statute by depositing the amount of excess realisation recovered by him under the bank guarantee given by K.M. Sugar Mills Limited.
There can, therefore, be no doubt that in terms of Section 6, Sub section (1) the appellants were entitled to claim refund of the sum of Rs. 22681.88 from the Fund.
The only question is whether the proviso to section 6, Sub section (1) precluded the appellants from claiming refund of that amount.
The proviso on its plain terms applied only where the party claiming refund of the amount of excess realisation is a wholesale or a retail dealer who has passed on the incidence of the excess over the controlled price of levy sugar to the retail dealer or to the consumer, as the case may be.
The proviso obviously cannot apply to a case where a claim for refund has been made by a consumer of sugar from whom excess realisation has been made by the manufacturer of sugar.
The appellants were admittedly consumers of sugar and not dealers in sugar and since they were not dealers in sugar, there could be no question of any incidence of excess being passed by them to the retail dealer or to the consumer.
The learned counsel appearing on behalf of the respondent contended that the excess over the controlled or fair price of levy sugar must have been passed on by the appellants to the consumer when they sold the manufactured products to them, because the higher price paid by them for the sugar purchased from K.M. Sugar Mills Limited must have been taken into account by them in fixing the price of the manufactured products.
This may be so or may not be so.
It is not necessary for us to examine this question because it is irrelevant on the terms of the proviso to Section 6, Sub section (1).
That proviso deals with a situation where a wholesale or retail dealer passes on the incidence of excess over the controlled or fair price of levy sugar to a retail dealer or consumer, who purchases such sugar.
It contemplates a case where a dealer whether whole sale or retail sells sugar to a retail dealer or consumer as the case may be and not where a person sells a manufactured product containing sugar as one of its ingredients, we have, therefore, no doubt that the proviso to Section 6, Sub section (1) was not attracted in the case of the appellants and, consequently, the appellants were entitled to claim refund of the sum of the Rs. 22681.88 from the sum of Fund.
213 We accordingly allow the appeal, set aside the judgment of the High Court and issue a Writ directing the respondent to pay to the appellants a sum of Rs. 22681.88 together with interest thereon at the rate of 6 per cent per annum from today until payment.
The respondent will pay the costs of the appeal to the appellants.
H.S.K. Appeal allowed.
[/INST]The two petitioners in the Special Leave Petition were committed to the civil jail for a period of one month by Single Judge of the High Court under the , as they had acted in breach of an undertaking given by them in a suit pending in the High Court.
The appeal preferred by the petitioners under Section 19(1) of the Act to a Division Bench was dismissed.
In the Special Leave Petition it was contended on behalf of the petitioners that : though the petition had been filed under Article 136 the petitioners have, in law, an appeal as of right under Section 19(1), and (2) the Single Judge was not justified in giving directions in addition to punishing the petitioners for contempt of court.
Dismissing the Special Leave Petition, ^ HELD:1.
If the order of committal for contempt of court is made by a Single Judge of the High Court, there is one statutory right of appeal to a Division Bench of not less than two Judges.
If the order of committal of contempt of court is made by a Bench, an appeal lies as of right to the Supreme Court.
Where an appeal is filed against the order of the Single Judge to a Division Bench, the statutory right of appeal gets exhausted and there is no further right of appeal to the Supreme Court.[600B.C] 2.
As there was a clear breach of the undertaking given by the petitioners, the Single Judge was quite right in giving appropriate directions to close the breach.
[600E]
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<s>[INST] Summarize the judgementivil Appeal No. 1945 of 1992.
From the Judgment and Order dated 4.1.1991 of th Kerala High Court in C.R.P. No. 1830 of 1990 Mathai M. Paikeday and C.N. Sreekumar for the Appellant.
P.S. Poti and Ms. Malini Poduval for the Respondent.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
Special leave granted.
This appeal filed by the landlord arises out of a petition filed under Sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act ') for the eviction of the respondent from the building situate in the city of Cochin.
The building in question was let out to the respondent by the father of the appellant on May 1, 1972 and he has been carrying on hotel business on the same.
The said building stands on a portion of 13 cent of land owned by the appellant.
The appellant was employed with Bharat Gold Mines Ltd. and was due to retire on September 30, 1981.
Prior to his retirement, the appellant filed the eviction petition before the Rent Controller, Ernakulam on January 15, 1981 wherein the appellant pleaded that after his retirement from service, he wanted to settle down in Cochin and except the building in question, he has no other house to reside and that the said building was required by him bona fide for his occupation.
It was also pleaded by the appellant that the respondent was using the property in such a manner as to materially and permanently reduce its value, utility and purpose.
The said petition was contested by the respondent on the ground that the building is not suitable for residential purposes inasmuch as it consists of two adjoining sheds and there is no toilet facility in the same and that it is not possible to reside therein.
It was further pleaded that the appellant has a house and plot in the name of his wife within the municipal limits of Cochin Corporation and the same is suitable for the residence of the appellant and his family members and further there is a lot of vacant land on the back of the building and the same is suitable for constructing a house.
The respondent denied that the property was being used in such a way as to reduce its utility.
By his order dated February 20, 74 1989, the Rent Controller dismissed the said petition of the appellant and found that the appellant had failed in proving his bona fide need of the building and he was not entitled to an order of eviction under S.11(3) of the Act and that he has also failed to adduce adequate evidence to prove that the respondent was indulging in an activity which has destroyed the value and utility of the property materially and permanently and he could not seek eviction under Section 11(4)(ii) of the Act.
The said order of the Rent Controller was reversed in appeal by the Appellate Authority by its judgment dated July 18, 1990.
The Appellate Authority agreed with the finding recorded by the Rent Controller that the appellant could not seek the eviction of the respondent under s.11(4)(ii) of the Act but it disagreed with the finding of the Rent Controller that the respondent was not liable to be evicted under S.11(3) of the Act.
The Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him.
On revision under S.20 of the Act, the High Court, by its judgment dated January 4, 1991, set aside the finding recorded by the Appellate Authority regarding the bona fide need of the building for his occupation and agreed with the view of the Rent Controller that the appellant had failed to establish that he was entitled to evict the respondent on the ground of bona fide need under s.11(3) of the Act.
Feeling aggrieved by the said decision of the High Court, the appellant has filed this appeal.
As indicated earlier, although the appellant had sought eviction of the respondent under s.11(3) as well as s.11(4)(ii), but the Rent Controller and the Appellate Authority have both found against him on s.11(4)(ii).
The scope of the present appeal is confined to the question whether the respondent is liable to be eviction on the ground of bone fide need of the appellant for his personal occupation under s.11(3) of the Act.
Sub section (3) of s.11 of the Act and the second proviso thereto provide as follows: "(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: XXX XXX XXX Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such 75 tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: XXX XXX XXX" At this stage, it may also be mentioned that in exercise of its revisional jurisdiction under s.20 of the Act, the High Court can "call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order of proceeding and may pass such order in reference thereto as it thinks fit".
It is no doubt true that the scope of the revisional jurisdiction conferred under s.20 is wider than that conferred under s.115 CPC.
But at the same time, a revision under s.20 cannot be equated with an appeal.
Moreover, the revision power conferred under s.20 also embraces an order passed by the Appellate Authority.
While considering the provisions conferring revisional power couched in a language similar to that contained in section 20 of the Act, this Court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings.
[See : Dattonpant Gopalvarao Devakate vs Vithabrao Maruthirao Janagaval, [1975 Supp.
SCR 67; M/s Sri Raja Lakshmi Dyeing Works & Ors vs Rangaswamy Chettiar, AIR 1980 SC 1253].
The revisional Court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted of and supported the one reached by the court below.
[See : Rajbir vs section Chokesiri & Co., ; , at p.37] In the instant case, the Appellate Authority, after considering the evidence on record, has found that the appellant had retired from service and he has no building of his own in the city.
The Appellate Authority has further found that before the building was let out to the respondent the same was being used for residential purposes and the mere fact that it lacks in certain facilities for being used for residential purposes by itself will not indicate that the claim of the appellant is false and from the evidence on record, it would appear that after some modifications and repairs it can be 76 used as a residential building.
In view of the decision of the High Court in Devaky vs Krishnakutty, (1987) 1 Ker.
L.T. 671, the Appellate authority held that the appellant could claim eviction of the building under s.11(3) even if the building in question requires some modifications or alterations provided that he is able to establish the bona fide need set up by him.
The Appellate Authority also held that merely because the appellant was residing comfortably in a building owned by his son would not disentitle him from seeking eviction on the ground that he wants to set up his residence under a roof of his own and that such a desire was quite natural.
The Appellate Authority also observed that the testimony of appellant, as P.W> 1, with regard to his bona fide requirement of the building for his residence could be believed and the mere bald assertion of the respondent, as R.W.1, that there was no bona fide need on the part of the appellant, by itself, was not a sufficient ground to disbelieve the testimony of the appellant.
In the light of the aforesaid finding, the Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him.
The High Court, in exercise of its revisional power, has set aside the aforesaid findings recorded by the Appellate Authority for the following reasons: (1) The appellate Authority had erroneously proceeded on the basis that there is no pleading by the respondent that the bona fide requirement set up by the appellant is false; (2) Instead of examining severally the circumstances relied upon by the Rent Controller and to see whether they were sufficient to support the finding of the Rent Controller, the Appellate Authority should have considered the cumulative effect of all the facts and circumstances established in the case on the question of bona fides of the claim made in the petition; and (3) The Appellate Authority had totally omitted to consider whether the respondent tenant was entitled to the benefit of the second proviso to sub section (3) of s.11 of the Act.
On a consideration of the pleadings and evidence the High Court found that the appellant is the owner of 13 cents of land and only a small portion of the said land in occupied by the buildings and the remaining 77 land is lying vacant behind the building and structures sought to be recovered and the appellant can construct a house over it.
The High Court has also found that the appellant is living in reasonable spacious residential accommodation with modern amenities with his son and it is difficult to believe that the claim as put forward by the appellant in the petition is honest in the circumstances of the case.
The High Court further held that the building sought to be recovered is admittedly used for commercial purposes from 1971 onwards and it is a 'L ' shaped structure consisting of two halls and a temporary shed which is being used as the kitchen of the hotel and there is no latrine or bathroom in the building and that in view of the nature, location and structural peculiarities of the buildings, absence of essential amenities like latrine, bathroom and privacy, the very limited space available for occupation and the status of the respondent as a person who retired after a period of 30 years of service as well placed employee of a wellknown company, the assertion of the appellant that he is ready to live in any condition could not be accepted as true and genuine.
The High Court was of the view that the principle laid down in the decision in Devaky vs Krishnakutty (supra) would not help appellant in this case.
The question whether the building is required bona fide by the appellant for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on record could not be interfered with by the High Court in exercise of the revisional jurisdiction under Section 20 of the Act because it could not be said that the said finding recorded by the Appellate Authority was not supported by the evidence on record.
The said finding was reversed by the High Court on the basis of a reassessment of the said evidence.
We find it difficult to agree with the reasons given the High Court for embarking on this reassessment of evidence.
Although the Appellate Authority has observed that there in no specific pleading by the respondent in the counter that the bona fide requirement set up by the appellant is false but in spite of the said observation the Appellate Authority has examined whether the said claim of the appellant is false and after considering the evidence adduced by both the parties, the Appellate Authority has found that the claim of the appellant is not false.
Similarly, the High Court is not right in holding that in its approach to the question of bona fides of the claim made in the petition the Appellate Authority has not considered the cumulative effect of all the facts and circumstances established in the case.
On a consideration of the various circumstances the Appellate Authority chose 78 of accept the testimony of the appellant, as P.W.1 as against that of the respondent, as R.W.1 and on that basis found that the appellant had succeeded in establishing the bona fide need set up by him.
The consideration which weighed with the High Court in taking a view contrary to that taken by the Appellate Authority do not, in our opinion, justify interference in exercise of revisional jurisdiction.
That the appellant has been living with his son in the house belonging to him (son) cannot lead to the inference that the claim of the appellant that he wants to live in a house of his own is false and not bonafide.
The same is true about the building in question not having the requisite facilities and being not in a fit condition for residence because the appellant can make suitable repairs and alterations in the same to make it fit for residential purposes.
The claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground that the building require repair and alterations before the landlord can occupy the same.
In Devaky vs Krishnankutty (supra), it has been observed: :. once the landlord establishes that he bona fide required the building for his occupation or the occupation of any member of his family, he can recover possession of the building from the tenant irrespective of the fact whether he would occupy the same with or without making any alterations." (p.673) We are in agreement with this view which is in consonance with the decision of this Court in Ramniklal Pitambrardas Mehta vs Indradaman Amratlal Sheth, ; In that case, it has been laid down: ".
The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonably for his occupation, when he has proved his need for occupying the house.
There is no such prohibition either in the language of cl.(g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it.
There could not be any logical reason for such a prohibition.
"(p.5) Similarly in sub section (3) of section 11 there is no prohibition that 79 a landlord must occupy the house for residence without making any alterations in it.
The finding recorded by the Appellate Authority, after considering the pleadings and evidence on record, that the appellant has succeeded in establishing that he needs the building bona fide for his own occupation must, therefore, be restored.
The High Court was, however, right in taking the view that before passing a decree for eviction on the ground of bona fide need of the landlord under section 11(3) of the Act, it was necessary for the Appellate Authority to consider whether the tenant was entitled to the benefit of the second proviso to sub section (3) of section 11 of the Act and that the Appellate Authority has omitted to consider the matter from this angle.
The said proviso precludes the passing of an order for eviction of a tenant who is depending for his livelihood mainly from the trade or business carried on in such building and there is no other suitable building available in the locality for him to carry on such trade or business.
After adverting to the second proviso to sub section (3) of section 11, the Rent Controller has observed: ".
The respondent has proved that he is depending upon the income from the business conducted in the petition schedule building for his livelihood.
The petitioner attempted to prove that the respondent is having other hotels elsewhere in the city, but without any success.
Though the respondent has not taken any steps to prove the non availability of other suitable buildings in the locality by summoning the Accommodation Controller, I do not thing that was a fatal lapse on the part of the respondent because he has adduced evidence in that regard through his witnesses.
" The learned Rent Controller has, however, not recorded any definite finding on this question because he had come to the conclusion that the appellant had failed to prove the bona fide need of the buildings.
Since the Appellate Authority had reversed the finding recorded by the Rent Controller on bona fide need of the appellant for the building, it was necessary for the Appellate Authority to have considered the matter in the light of the second proviso to sub section (3) of section 11 and it should have recorded a finding on the question whether the respondent could invoke the protection of the said proviso.
In the circumstances, we are of the view 80 that the matter should be remanded to the Appellate Authority for considering the question whether the respondent can invoke the protection of the second proviso to section 11(3) of the Act.
In the result, the appeal is allowed.
The judgment and order of the Kerala High Court dated January 4, 1991 is set aside.
The order of the Appellate Authority dated July 18, 1990 to the extent it directs the eviction of the respondent under Section 11(3) of the Act is also set aside and the matter is remanded to the Appellate Authority for considering the matter in the light of the second proviso to section 11(3) of the Act.
It is, however, made clear that we are not upsetting the finding recorded by the Appellate Authority that the building is required bona fide by the appellant for his own occupation.
The parties are left to bear their own costs.
V.P.R. Appeal allowed.
[/INST]Twelve persons, including the appellants, were challaned for the murder of Sarpanch of a village.
Relying on the evidence of P.Ws. 1,2 and 7 in toto and that of P.W.3 to some extent, the Sessions Judge convicted all the accused persons for the offences under Section 302 read with Section 149 I.P.C. and awarded sentence of imprisonment for life and other minor terms of imprisonment for other offences.
On appeal, the High Court set aside the conviction and sentence of seven accused persons, namely, A 4, A 5, A 8 to 12 and confirmed the conviction of the remaining five accused persons, A 1, A 6 and A 7 under Section 302 read with Section 149 I.P.C. and sentenced them to imprisonment for life.
These five accused filed an appeal, by special leave, before this Court.
During the pendency of the appeal one of the accused appellants died and as such appeal filed by him was dismissed as having abated.
On behalf of the accused persons it was submitted that even if the statement of P.W. 2 was taken to be correct no offence was made out so far as accused A 3 was concerned, inasmuch as P.W.2 had admitted in the cross examination that he did not state the name of A 3 in his statement recorded under Section 164 Cr.
P.C., and that the name of A 3 was also not found in Exhibit D 7, the statement of P.W.2 recorded at the inquest, and that since P.W.2 had gone to police station seven or eight times after the incident, there was a possibility of his seeing the accused, A 2 and A 7 in the police lock up and hence the identification parades held had no value.
Disposing of the appeal, this Court, HELD: 1.1.
There is no infirmity at all in the reasoning and conclusions arrived at by the High Court so far as accused A 1, A 2 and A 7 are concerned.[24 B] 1.2 It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the village.
The accused persons belonged to the group headed by A 6, A 7 and the deceased was the leader of the other group.
The deceased was given merciless beatings and was done to death in the midnight.
He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor.
It has also been found established by the trial court as well as by the High Court that A 1 inflicted injuries by an axe and A 2 by a spear and A 7 was among the other persons who inflicted injuries buy a stick.
It has also come in the evidence of P.W.19, Inspector of Police, that the accused persons had absconded and after a few days of the incident, on information, he, alongwith mediators, visited the village and the absconded accused were hiding in the house of A 7.
He surrounded the house with hes staff, guarded it and found therein, the twelve persons against whom the case was challaned.
It has also been proved by the prosecution that A 7 was the leader of the rival faction against the deceased.
[23 F H, 24 A] 1.3.
The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws.1 to 4 as eye witnesses of the incident.
The High Court has placed implicit reliance on the testimony of P.W.2.
a clerk in the deceased 's office, and who had accompanied the deceased in an autorickshaw and seen the incident.
There is no infirmity in the Statement of P.W.2 and the High Court has rightly placed reliance on his evidence.
[22 D,E] 1.4.
P.W.2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7.
P.W.2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony.
He had identified A 1, A 2 and A 7 in the Court.
Their conviction is not based on the identification parade but on the statement of P.W.1 and P.W.2 made during the trial as eye witness.
[23 E] 1.5.
A perusal of the statement of P.W.2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr.
and also in his statement, Exhibit D 7, recorded at the inquest.
In the circumstances, the circumstances, the accused A 3 is also entitled to the benefit of doubt.
[22 G] 1.6.
In the result, A 3 is acquitted of all the charges levelled against him, and the conviction and sentence of the other appellants, A 1, A 2 and A 7 are confirmed.
[24 c]
</s>
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<s>[INST] Summarize the judgementvil Appeal Nos. 1668 and 1669 of 1988.
From the Judgment and Order dated 29.4.1988 of the Madras High Court in W.R. Nos. 469 and 488 of 1988.
Soli J. Sorabjee, V.C. Mahajan, C.A. Sundaram, U.A. Rana, M. Mudgal, Ms. Indu Malhotra, C.V. Subba Rao, A. Mariar Autham, Aruna Matbur, N.N. Sharma, Jose Varghese, Bhagwan Das, R. Mohan, R.A. Perumal and A.V. Rangam for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These appeals by leave are from the judgment of the Division Bench of the Madras High Court revoking the 'U Certificate ' issued to a Tamil film called "Ore Oru Gramathile" (In one Village) for public exhibition.
Civil Appeal Nos.1668 and 1669 of 1988 are by the producer of the film and the Civil Appeal nos.13667 and 133668 of 1988 are by the Union of India.
He apprehends that she would not be able to get admission to college because she belongs to a Brahmin community.
He seeks advice from his close friend Devashayam, a Tehsildar.
The Tehsildar who otherwise belongs to a very poor family and whose father was working in a local Church responds with gratitude.
He divises a method to help Gayathri because it was through Sastry 's father that he got proper education and rose to become a Tahsildar.
He prepares a false certificate showing Gayathri as Karuppayee belonging to an Adi Dravida Community and as an orphan.
He issues the certificate under the reservation policy of the Government for the benefit of 'backward commu nities ' identified on caste consideration.
On the basis of the false certificate, Karuppayee gets admitted to college and enters I.A.S. witness to this arrangement is the brother in law of Tahsildar called Anthony who later turns out to be a villain of the piece.
"Years later, Karuppayee, who was working in Delhi is sent to a rural village called Annavayil as a Special Offi cer for flood relief operations.
Her father, Shankara Sastry happens to work in the same village as Block Development Officer.
However, both of them pretend not to recognise each other.
Karuppayee takes her work seriously and improves the living conditions of people to such an extent that she is held by them in high esteem.
By a coincidence, after the death of the Tahsildar, Anthony comes to live in the same village and recognises Karuppayee.
He starts blackmailing her and threatens to reveal the fraudulent means by which she got the caste certificate.
His attempt is to extract money from her frequently.
One evening when he visits Karup payee 's house, he is confronted by Shankara Sastry who puts a halt to his blackmailing.
Later Anthony dies of sudden heart attack but not before he informs the Government about the facts relating to Karuppayee.
Upon preliminary enquiry, the Government suspends both Karuppayee and her father and eventually they are put on trial in the Court.
The people of the village resentful of the action taken against Karuppayee rise as one man and demonstrate before the Court in a peace ful manner for her release.
They also send petitions to the Government."
"Karuppayee and her father admit in the Court the fact of their having obtained the false caste certificate but they attribute it to circumstances resulting by Government reservation policy on caste basis.
They say that they are prepared to undergo any punishment.
They contend hat some politicians are exploiting the caste consideration and that would be detrimental to national integration.
They also argue that the reservation policy should not be based on caste, but could be on economic backwardness.
Just about the time when the judgment is to be pronounced the Court re ceives intimation from Government that in the light of petitions received from the public, the case against Karup payee and her father stands withdrawn.
Karuppayee goes back to her Government job with jubilent people all round.
" 210 This is the theme of the picture presented.
As usual, it contains some songs, dance and side attractions to make the film more delectable.
On August 7, 1987, the producer applied for certificate for exhibition of the film.
The examining committee upon seeing the film unanimously refused to grant certificate.
The appellant then sought for review by a Revising Committee which consisted of nine members.
This Committee reviewed the film.
Eight members were in favour of grant of certificate and one was opposed to it.
The Chairman of the Censor Board however, referred the film to Second Revising Committee for review and recommendation.
The 'U ' certificate means for unrestricted public exhibition as against 'A ' certificate restricted to adults only.
The minority expressed the view that the film is treated in an irresponsible manner.
The reservation policy of the Govern ment is projected in a highly biased and distorted fashion.
They have also stated that the so called appeal in the film "India is One" is a hollow appeal, which in effect touches caste sensitivity of the Brahmin forward caste.
One of the members felt that the impact of the film will create law and order problem.
Another member said that the film will hurt the feelings and sentiments of certain sections of the public.
But the majority opined that the theme of the film is on the reservation policy of the Government suggesting that the reservation could be made on the basis of economic backwardness.
Such a view could be expressed in a free country like India, and it did not violate any guideline.
On December 7, 1987, 'U ' certificate was granted for the exhibition of the film which was challenged before the High Court by way of writ petitions.
The writ petitions were dismissed by the Single judge, but the Division Bench upon appeal allowed the writ petitions and revoked the certifi cate.
The producer of the film and the Government of India by obtaining leave have appealed to this Court.
The film has since been given National Award by the Directorate of Film Festival of the Government of India.
In these appeals, the fundamental point made by Mr. Soli Sorabjee, learned counsel for the producer is about the freedom of free expression guaranteed under our Constitution even for the medium of 211 movies.
The counsel argued that the opinion on the effect of the film should not be rested on isolated passages disre garding the main theme and its message.
The Film should be judged in its entirety from the point of its overall impact on the public.
The writings of the film must be considered in a free, fair and liberal spirit in the light of the freedom of expression guaranteed under our Constitution.
The counsel said that the Court is not concerned with the cor rectness or legality of the views expressed in the film and the Court cannot limit the expression on any general issue even if it is controversial.
Mr. Mahajan for the Union of India supported these submissions.
Mr. Varghese learned counsel for the contesting respondents did not dispute most of the proposition advanced for the appellants.
He was, however, critical about the manner in which the reservation policy of the Government has been condemned and the events and characters shown in the film.
He contended that they are depicted in a biased manner and reaction to the film in Tamil Nadu is bound to be volatile.
Before examining these rival contentions, a few general observations may be made as to the utility of movies and the object of the film Censors Board.
The motion pictures were originally considered as a form of amusement to be allowed to titillate but not to arouse.
They were treated as mere entertainment and not an art or a means of expression.
This theory was based on the concept that motion picture was a business "pure and simpe originated and conducted for prof it, like other spectacles.
" It was considered strictly as an "amusement industry".
It was not without significance since there were no talking pictures then.
The talking pictures were first produced in 1926, eleven years after the Mutual decision (Encyclopedia Britinnica) (1965 Vol.
15 p. 902).
The later decisions of the American Supreme Court have therefore declared that expression by means of motion pictures is included within the free speech and free press guaranty of the First Amend ment.
(See Burstyn vs Wilso, ; The First Amend ment to the U.S. Constitution provides: "Congress shall make no law . abridging the freedom of speech, or of the press." This Amendment is absolute in terms and it contains no exception for the exercise of the fight.
Heavy burden lies on the State to justify the interference.
The judicial decisions, however, limited the scope of restriction which the State could impose in any given circumstances.
The danger rule was born in Schenek vs United States, 249 U.S. 47 (1919).
Justice Holmes for a unanimous court, evolved the test of "clear and present danger".
He used the danger test to 212 determine where discussion ends and incitement or attempt begins.
The core of his position was that the First Amend ment protects only utterances that seeks acceptance via the democratic process of discussion and agreement.
But "Words that may have all the effect of force" calculated to achieve its goal by circumventing the democratic process are however, not so protected.
The framework of our Constitution differs from the First Amendment to the U.S. Constitution.
Article 19(1)(a) of our Constitution guarantees to all citizens the right to freedom of speech and expression.
The freedom of expression means the right to express one 's opinion by words of mouth, writing, printing, picture or in any other manner.
It would thus include the freedom of communication and the right to propagate or publish opinion.
The communication of ideas could be made through any medium, newspaper, magazine or movie.
But this right is subject to reasonable restrictions on grounds set out under Article 13(2) of the Constitution.
The reason able limitations can be put in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, deceny or morality or in relation to contempt of court, defamation or incitement to an offence.
The Framers deemed it essential to permit imposition of reasonable restrictions on the larger interests of the community and country.
They intended to strike a proper balance between the liberty guaranteed and the social interest specified under Article 19(2).
(See Santokh Singh vs Delhi Administration, ; This is the difference between the First Amendment to the U.S. Constitution and Article 19(1)(a) of our Constitu tion.
The decisions bearing on the First Amendment are, therefore, not useful to us except the broad principles and the purpose of the guaranty.
Movie doubtless enjoys the guaranty under Article 19(1)(a) but there is one significant difference between the movie and other modes of communication.
The movie cannot function in a free market place like the newspaper, magazine or advertisement.
Movie motivates thought and action and assures a high degree of attention and retention.
It makes its impact simultaneously arousing the visual and aural senses.
The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective.
The combination of act and speech, sight and sound in semi darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators.
In some cases, it will have a complete and im 213 mediate influence on, and appeal for every one who sees it.
In view of the scientific improvements in photography and production the present movie is a powerful means of communi cation.
It is said: "as an instrument of education it has unusual power to impart information, to influence specific attitudes towards objects of social value, to affect emo tions either in gross or in microscopic proportions, to affect health in a minor degree through sleep disturbance, and to affect profoundly the patterns of conduct of chil dren." (See Reader in Public Opinion and Communication Second Edition by Bernard Betelson and Morris Janowitz p. 390).
The authors of this Book have demonstrated (at 391 to 401) by scientific tests the potential of the motion pic tures in formation of opinion by spectators and also on their attitudes.
These tests have also shown that the effect of motion pictures is cumulative.
It is proved that even though one movie relating to a social issue may not signifi cantly affect the attitude of an individual or group, con tinual exposure to films of a similar character will produce a change.
It can, therefore, be said that the movie has unique capacity to disturb and arouse feelings.
It has as much potential for evil as it has for good.
It has an equal potential to instil or cultivate violent or good behaviour.
With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication.
It cannot be allowed to function in a free market place just as does the newspapers or magazines.
Censorship by prior restraint is, therefore, not only desirable but also neces sary.
Here again we find the difference between the First Amendment to the U.S. Constitution and Article 19(1)(a) of our Constitution.
The First Amendment does not permit any prior restraint, since the guaranty of free speech is in unqualified terms.
This essential difference was recognised by Douglas, J., with whom Black, J., concurred in Kingsley Corporation vs Regents of the University of New York, at 1522.
In holding that censorship by "prior restraint" on movies was unconstitutional, the learned Judge said: "If we had a provision in our Consti tution for "reasonable" regulation of the press such India has included in hers, there would be room for argument that censorship in the interests of morality would be permissi ble.
But its language, in terms that are absolute is utterly at war with censorship.
214 Different questions may arise as to censorship of some news when the nation is actually at war.
But any possible exceptions are extremely limited.
" The ("The Act") which permits censorship on movies is a comprehensive enactment.
Section 3 of the Act provides for constitution of Board of Film Cen sors.
Section 4 speaks of examination of films.
A film is examined in the first instance by an Examining Committee.
If it is not approved, it is further reviewed by a Revising Committee under Section 5.
Section 5A states that if after examining a film or having it examined in the prescribed manner, the Board considers that the film is suitable for unrestricted public exhibition, such a certificate is given which is called 'U ' certificate.
Section 5(a) provides principles for guidance in certi fying films.
It is significant to note that Article 19(2) has been practically read into Section 5(B)(1).
Section 5(C) confers right of appeal to Tribunal against refusal of certificate.
Under Section 6, the Central Government has revisional power to call for the record of any proceeding in relation to any film at any stage, where it is not made the subject matter of appeal to the Appellate Tribunal.
Under Section 8 of the Act, the Rules called the Cine matograph (Certification) Rules 1983 have been framed.
Under Section 5(B)(2) the Central Government has prescribed cer tain guidelines for the Censors Board.
Guideline (1) relates to the objectives of film censorship.
The Board shall ensure that: (a) the medium of film remains responsible and sensi tive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed and (c) censorship is responsive to social change
Guideline (2) requires the Board to ensure that: (i) anti social activities such as violence not glorified or justified; (ii) the modus operandi of criminal or other visuals or words likely to incite the commission of any offence are not depicted; (iii) pointless or avoidable scenes of violence, cruelty and horror are not shown; (iv) human sensibilities are not offended by vulgarity, obscenity and depravity; (vi) the sovereignty and integrity of India is not called in question; (vii) the security of the State is not jeopardised or endangered; (viii) friendly relations with foreign states are not strained; and (ix) Public Order is not endangered.
Guideline (3) also requires the Board to ensure that the film: (i) 215 is judged in its entirety from the point of view of its overall impact and; (ii) is examined in the light of contem porary standards of the country and the people to whom the film relates.
It will be thus seen that censorship is permitted mainly on social interest specified under Article 19(2) of the Constitution with emphasis on maintenance of values and standards of society.
Therefore, the censorship by prior restraint must necessarily be reasonable that could be saved by the well accepted principles of judicial review.
In K.A. Abbas vs Union of India, ; a Constitution Bench of this court considered important ques tions relating to pre censorship of cinematograph films in relation to the fundamental right of freedom of speech and expression.
K.A. Abbas, a noted Indian journalist and film producer produced a short documentary film called "A tale of Four Cities".
In that film he sought to contrast the self indulgent life of the rich in Metropolitan cities with the squalor and destitution of labouring masses who helped to construct the imposing buildings and complexes utilised by the rich.
The film also goes on to explore the theme of exploitation of women by men, dealing in particular prosti tution.
Abbas applied to the Board of Film Censors for a 'U ' certificate, permitting unrestricted exhibition of the film.
He was informed by the regional officer that the Examining Committee had provisionally concluded that the film should be restricted to adults.
The Revising Committee concurred in this result, whereupon Abbas, after exchanging correspond ence with the Board, appealed to the Central Government.
The Government decided to grant 'U ' certificate provided that the scenes in the red light district were deleted from the film.
Abbas challenged the action of the Board mainly on four issues out of which two did not survive when the Solic itor General stated before the Court that the Government would set on foot legislation to effectuate the policies at the earliest possible date.
The two issues which survived thereupon were: (a) that pre censorship itself cannot be tolerated under the freedom of speech and expression; (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action
The standards that we set out for our censors must make a 216 substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.
We must not look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society.
The requirements of art and litera ture include within themselves a comprehen sive, view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius of social value.
If the depraved begins to see in these things more than what an average person would, in much the same way as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped.
In our scheme of things ideas having redeeming social or artistic value must also have impor tance and protection for their growth." Recently, Sabyasachi Mukharji, J., in Ramesh vs Union of India, which is popularly called "TAMAS" case laid down the standard of judging the effect of the words or expression used in the movie.
The learned Judge quoting with approval of the observation of Vivian Bose, J., as he then was, in the Nagpur High Court in the case of Bhagwati Charun Shukla vs Provincial Govern ment, AIR 1947 Nag 1 (at 676): "That the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating.
This in our opinion is the correct approach in judging the effect of exhibition of a film or of reading a Book.
It is the standard of ordinary reasona ble man or as they say in English law, "the man on the top of a Clampham omnibus.
" We affirm and reiterate this principle.
The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and pru dence and not .that of an out of the ordinary or hypersensi tive man.
We, however, wish to add a word more.
The Censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country.
The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation.
Our country has had the distinction of giving birth to a galaxy of great sages and thinkers.
The great thinkers and sages through their life and conduct provided principles for people to follow the path of fight conduct.
There have been continuous efforts at rediscovery and reiteration of those principles.
Adi guru Shankaracharya, Ramanujacharya, Madhwacharya, Chaitanya Maha Prabhu, Swami Ram Krishan Paramhansa, Guru Nanak Sant Kabir and Mahatma Gandhi, have all enlightened our path.
If one prefers to go yet further back, he will find "TIRUKKURAL" the ethical code from Tiruv alluvar teaching which is "a general human morality and wisdom.
" Besides, we have the concept of "Dharam" (right eousness in every respect) a unique contribution of Indian civilization to humanity of the world.
These are the bedrock of our civilization and should not be allowed to be shaken by unethical standards.
We do not, however, mean that the Censors should have an orthodox or conservative outlook.
Far from it, they must be responsive to social change and they must go with the current climate.
All we wish to state is that the Censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it.
Krishna Iyer, J., in Rajkapoor vs Laxman, ; in words meaningful expressed similar thought.
The learned Judge said (at 5 17): "The ultimate censorious power over the Censors belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals are liberally certified, the legislation, meant by Parlia ment to protect people 's good morals, may be sabotaged by statutory enemies within." With these prefactory remarks, let us now turn to the reasons which weighed with the High Court to revoke the 'U ' certificate and rule out the film altogether.
The High Court has found fault with the Constitution of the First Revising Committee.
It has held that the Revising Committee was constituted hurriedly and its constitution by "delegate Board Member" was illegal and without authority of law.
The Committee also showed unusual favour to the producer by reviewing the film with hot haste.
In the absence of a First Revising Committee having come into existence as known to law; the High Court said that the constitution of the Second Revising Committee was invalid and inoperative.
We do not think that the High Court was justified in reaching this conclusion.
Under the rules, the Regional Officer shall appoint an 218 Examining Committee to examine the film.
The Rule 22 inter alia, states that after screening the film, the Examining Officer shall within three working days send the recommendations of all the members of the Examining Committee to the Chairman.
Rule 24(1) provides for constitu tion of a Revising Committee.
It states that on receipt of the record referred to in rule 22, the Chairman may, of his own motion or on the request of the applicant, refer the movie to a Revising Committee.
In the instant case, the Chairman did not constitute the first Revising Committee but a member of the Board did.
The question is whether the member of the Board was competent to constitute the Revising Committee.
Our attention was drawn to the Government order dated January 21, 1987 made under sec.
7(B) of the Cinemato graph Act.
The order reads; "No. 803/1/86 F(C) Government of India Ministry of Human Resource Development Department of Culture.
New Delhi, the 21st January, 1987 ORDER In exercise of the powers conferred by Sec.
7B of the Cinamatograph Act, 1952 (37 of 1952) (hereinafter referred to as the said Act), the Central Government hereby directs that any power, authority or jurisdiction exercisable by the Board of film, Certifica tion (hereinafter referred to as the Board) in relation to matters specified in sec.4, sub secs (3) and (4) of sec.5, sec.5 A and sec.7C of the said Act shall also be exercisable subject to the condition given below by the following members of the Board at the Regional Office indicated against each, with immediate effect and until further orders: 1.
Shri Samik Banerjee Calcutta 2.
Ms. Maithreyi Ramadhurai Madras 3.
Dr. B.K. Chandrashekar Bangalore XXX XXXX XXX XXXX" This order clearly states that the power of the Board shall also be exercisable by the specified members within their regional office.
For 219 Madras region Ms. Maithrayi Ramadhurai has been constituted to exercise such powers.
It cannot be contended that the Central Government has no power to delegate the powers or to issue the said order.
7(B) empowers the Central Government to issue general or special order directing that any power, authority or jurisdiction exercisable by the Board under the Act shall be exercisable also by the Chairman or any other member of the Board.
The section further provides that anything done or action taken by the Chairman or other member specified in the order shall be deemed to be a thing done or action taken by the Board.
From the provisions of sec.7B read with the Government order dated January 21, 1987, it becomes clear that the constitution of the First Revising Committee by the member at the Madras Regional Office is not vulnerable to any attack.
It is legally justified and unassailable.
The conclusion to the contrary reached by the High Court is apparently unwarranted.
We also do not find any justification for the observa tion of the High Court that there was unusual favour shown to the producer by the First Revising Committee in reviewing the film.
It is true that the film was reviewed within 2 3 hours of the presentation of the application.
But there is no reason to attribute motives either to members of the Committee or to the producer.
In matters of certification of films, it is necessary to take prompt action by the respec tive authorities.
The producer who has invested a large capital should not be made to wait needlessly.
He has a statutory right to have the validity of ,the film determined in accordance with law.
It would be, therefore, proper and indeed appreciative if the film is reviewed as soon as it is submitted.
There are two other side issues which may be disposed of at this stage.
The scene with song No. 2 in reel No. 3 and the comments by the heroine of looking at the photo of Dr. Ambedkar, have come under serious criticism.
It is said that the song has the effect of spreading 'Kulachar ' which is 'Poisonous message ' to the depressed classes not to educate their children.
The complaint, if true, is serious.
We, therefore, gave our anxious consideration to the grievance.
We, as did the High Court, viewed the movie.
The cobbler sings the song in question with his grandson who is eager to go to school.
The song contains references to Kamaraj, Anna and MGR who without even college education became Chief Ministers.
The cobbler asks the grandson: "What are you going to achieve by education? and don 't forsake the profes sion you know and you can educate yourself as a cobbler.
" 220 While these and other exchanges are going on between the cobbler and grandson, the heroine comes and insists that the boy should go to school.
They agree to her suggestion with "Vanakkam, Vanakkam".
The song thus ends with a happy note and the cobbler agrees to send his grandson to school.
It is true as pointed out by counsel for the respondents that one or two references in the song are not palatable, but we should not read too much into that writing.
It is not proper to form an opinion by dwelling upon stray sentences or isolated passages disgregarding the main theme.
What is significant to note is that the cobbler ultimately does not insist that his grandson should continue the family pursuits.
He accepts the suggestion made by the heroine.
It is, therefore, wrong to conclude that the song was intended to convey poisonous message against the inter ests of depressed classes.
The criticism on the alleged comments on Dr. Ambedkar is equally unsustainable.
The confusion perhaps is due to the pronounced accent of an English word in the course of Tamil conversation.
The matter arises in this way: Sastry shows the photograph of Dr. Ambedkar to heroine and enquires whether she likes it.
Then she makes certain comments.
According to the High Court, she states, "Dr. Ambedkar worked for the poor.
Not for 'par '.
If she states like that, it is certainly objectionable since Dr. Ambedkar did everything to have an egalitarian society.
But while viewing the film, we could not hear any such word used by the heroine.
On the other hand, we distinctly noted her saying, "Dr. Ambedkar worked for the poor, Not for power. "
This being the remark there is no basis for the criticism of the High Court.
The last complaint and really the nub of the case for the respondent is about the reel No. 14 covering the court scene where Karuppayee and Sastry are prosecuted for offence of obtaining a false caste certificate.
The reel No. 14 contains almost a dialogue between the prosecution lawyer and Karuppayee.
She criticises the reservation policy of the Government.
She states that during the British regime, the people enjoyed educational freedom, and job opportunities which were based on merit criteria and not vote caste in a particular constituency.
Then the prosecution lawyer puts a question "why do you regret this Madam? Was not 'Bharat Matha ' under shackles then?" She replies: "You are right.
Now "Bharat Matha" is under animals ' hands.
" On a further question from the prosecutor she explains that her reference to 'animals ' hands is only to those who incite caste, language and communal fanaticism, thus confusing people and making it their profession.
She also states that it is the Government and its laws that have made her and her father to tell a lie.
The presiding Judge interrupts with a question: "What is wrong in the Government approach? Can you elaborate?" She replies: "That it is wrong not to give credence to her merit and evaluate the same on the basis of her caste and such evaluation would put a bar on the progress." She goes on to explain "Your laws are the barri ers Sir.
You have made propaganda in nook and corner stating "Be an Indian, Be an Indian".
And if I proudly say I am an Indian then the Government divides saying 'no, no, no, . .
You are a Brahmin, you are Christian, you are a Muslim.
It is the Government that divides.
" Then she puts a question to herself: "What is the meaning of "Be an Indian?" She explains that it must be without caste, creed and commu nal considerations, from Kashmir to Kanyakumari, the country must be one.
She then blames the Government with these words: "The Government in dealing with all has no one face.
Take any application form they want to know your caste and religion.
When all are Indians where is the necessity for this question.
You have divided the people according to caste.
Then if you reel off on "National integration" will not the public laugh.
" As to the reservation policy to those who are backward she says: "On Gods name, I have no objection in providing all concessions to those who are backward.
The list of those belonging to forward sections and backward sections could be prepared on the basis of economic considerations.
And those below a specified limit of income be included in the back ward list.
" How did the High Court look at it? On the remark of heroine as to the situations that existed during British administration, the High Court observed thus: "It is preposterous and offensive to claim that education was independent when India was under British rule and that, after independ ence it is not there.
" The High Court also said: "That any denigration of Rule of law would never 222 bring orderly society.
To preach that it is only law that prompted them to utter falsehood and in its absence they would not have done it is a wrong way presenting a view point.
" As to the allegations that 'Bharat Matha ' is now in the hands of politicians, who are instigating the masses on the basis of caste and language, etc., the High Court remarked: "If this sort of decrying India for being an independent nation is to be projected in films repeatedly, then in course of time, citizens will loose faith in the integrity and sovereignty of India.
With this sort of glori fication made, how could it be claimed that the film stands for national integration.
That was why one Member rightly said that it is a hollow claim.
Hence Guideline 2(vi) and (vii) are contravened.
" On the total impact of the film, the High Court observed: "That certain peculiar factors will have to be taken into account because of guidelines 3(i) and 3(ii).
This film is in Tamil.
It deals with reservations now extended to large sections of people on a particular basis, and who have suffered for Centuries, and at a time when they have not attained equality and when their valuable rights which are secured under the Constitution is attempt ed to be taken away, they get agitated.
This film taken in Tamil for Tamil population on being screened in Tamil Nadu, will certainly be viewed in the background of what had hap pened in Tamil Nadu during the preceding four decades, and the reactions are bound to be volatile.
" We find it difficult to appreciate the observations of the High Court.
We fail to understand how the expression in the film with criticism of reservation policy or praising the colonial rule will affect the security of the State of sovereignty and integrity of India.
There is no utterance in the film threatening to overthrow the Government by unlawful or unconstitutional means.
There is no talk for secession either.
Nor there is any suggestion for impairing the inte gration of the country.
All that the film seems to suggest is that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic back wardness is better.
The film also deprecates exploitation of people on caste considerations.
This is the range and rigor of the film.
The High Court, however, was of opinion that public reaction to the film, which seeks to change the system of reservation is bound to be volatile.
The HIgh Court has also stated that people of Tamil Nadu who have suffered for centuries will not allow themselves to be deprived of the benefits extended to them on a particular basis.
It seems to us that the reasoning of the High Court runs a foul of the democratic principles to which we have pledged ourselves in the Constitution.
In democracy it is not necessary that every one should sing the same song.
Freedom of expression is the rule and it is generally taken for granted.
Every one has a fundamental right to form his own opinion on any issue of general concern.
He can form and inform by any legitimate means.
The democracy is a Government by the people via open discussion.
The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community.
The public discussion with people participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government.
The democracy can neither work nor prosper unless people go out to share their views.
The truth is that public discussion on issues relating to administration has positive value.
When they ignore it, they go inside themselves and find out what is there.
They elaborate their prejudice instead of increasing their knowledge.
In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 Bhagwati J., observed at 696: "Democracy is based essentially on free debate and open discussion, for that is the only corrective of Government action in a democratic set up.
If democracy means government of the people by the people.
it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential." 224 The learned judge in Naraindas vs State of Madhya Pradesh,[1974] 3 SCR 624 while dealing with the power of the State to select text books for obligatory use by students said at 650: "It is our firm belief, nay, a con viction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate.
As pointed out by Mr. Justice Holmes in Abramson vs United States, ; "The ultimate good desired is better reached by free trade in ideas the best test of truth is the power of the thought to get itself accept ed in the competition of the market.
" There must be freedom of thought and the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest.
" In Sakal vs Union of India, ; at 866, Mudholkar, J. said: "This Court must be ever vigilent in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution.
The reason for this is obvious.
The freedom of speech and expression of opinion is of para mount importance under a democratic Constitu tion which envisages changes in the composi tion of legislatures and governments and must be preserved."
Movie is the legitimate and the most important medium in which issues of general concern can be treated.
The producer may project his own messages which the others may not ap prove of.
But he has a right to "think out" and put the counter appeals to reason.
It is a part of a democratic give and take to which no one could complain.
The State cannot prevent open discussion and open expression, however, hateful to its policies.
As Professor Fraund puts it: "The State may not punish open talk, however, hateful, not for hypocritical reason that Hyde Parks are a safety valve, but because a bit of sense may be salvaged from the odious by minds striving to be rational, and this precious bit will enter into the amalgam which we forge." (Paul A. Freund On Understanding the Supreme Court 26 (1950).
"When men differ in opinion, both sides ought equally to have 225 the advantage of being heard by the public." (Benjamin Franklin).
If one is allowed to say that policy of the government is good, another is with equal freedom entitled to say that it is bad.
If one is allowed to support the governmental scheme, the other could as well say, that he will not support it.
The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.
Alexander Meiklejohn perhaps the foremost American philosopher of freedom of expression, in his wise little study neatly explains: "When men govern themselves, it is they and no one else who must pass judgment upon unwisdom and unfairness and danger.
And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, an Ameri can as well . American . .
If then, on any occasion in the United States it is allowable, in that situation, to say that the Constitution is a good document it is equally allowable, in that situation, to say that the Constitution is a bad document.
If a public building may be used in which to say, in time of war, that the war is justified, then the same building may be used in which to say that it is not justified.
If it be publicly argued that conscription for armed service is moral and necessary, it may likewise be publicly argued that it is immoral and unnecessary.
If it may be said that American political insti tutions are superior to those of England or Russia or German, it may with equal freedom, be said that those of England or Russia or Germany are superiors to ours.
These conflict ing views may be expressed, must be expressed, not because they are valid, but because they are relevant . .
To be afraid of ideas, any idea, is to be unfit for self government." (Political Freedom (1960) at 27).
He argued, if we may say so correctly, that the guaran tees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government, the people 's legislative and executive agents.
Brandies, J., in Whitney vs California, ; ,375 8 (1927) propounded probably the most attractive free speech theory: 226 " . . that the greatest menace to freedom is an inert people; that public dis cussion is a political duty; . .It is hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
" What Archibald Cox said in his article though on "First Amendment" is equally rele vant here: "Some propositions seem true or false beyond rational debate.
Some false and harm ful, political and religious doctrine gain wide public acceptance.
Adolf Hitler 's brutal theory of a 'master race ' is sufficient exam ple.
The liberty cannot be denied to some ideas and saved for others.
The reason is plain enough: no man, no committee, and surely no government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debata ble, and both from what is false.
To license one to impose his truth upon dessenters is to give the same licence to all others who have, but fear to lose, power.
The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free peo ple." (Society Vol.
24 p. 8 No. 1 November/December 1986).
The problem of defining the area of freedom of expres sion when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here.
There does indeed have to be a compromise between the interest of freedom of expression and social interests.
But we cannot simply balance the two interests as if they are of equal weight.
Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.
The anticipated danger should not be remote, conjectural or far fetched.
It should have proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous to the public interest.
227 Our remarkable faith in the freedom of speech and ex pression could be seen even from decisions earlier to our Constitution.
There the accused was convicted under sec.124(A) of Penal Code for making a speech recommending 'Bolshevik ' form of Government to re place the then existing form of Government in Calcutta.
While setting aside the conviction and acquitting the ac cused, Lord Williams, J., who delivered the judgment ob served (at 637): "All that the speakers did was to encourage the youngmen, whom he was addressng, to join the Bengal Youth League and to carry on a propaganda for the purpose of inducing as large a number of people in India as possible to become supporters of the idea of communism as represented by the present Bolshevik system in Russia.
It is really absurb to say that speeches of this kind amount to sedition.
If such were the case, then every argument against the present form of Government and in favour of some other form of Government might be allowed to lead to hatred of the Government, and it might be suggested that such ideas brought the Govern ment into contempt.
To suggest some other form of Government is not necessarily to bring the present Government into hatred or contempt.
" To the same effect is the observation by the Bombay High Court in Manohar vs Government of Bombay, AIR 1950 BOM 210.
There the writer of an article in a newspaper was convicted for an offence under the Press (Emergency Powers) Act, 1931, for incitement to violence.
The writer had suggested the people to follow the example of China by rising against Anglo American Imperialism and their agents.
He had also suggested his readers to pursue the path of violence, as the Chinese people did, in order that Anglo American Imperialism should be driven out of this country.
Chagla C.J., while quashing the conviction said (at 2 13): "It is true that the article does state that the working class and the coiling masses can get hold of power through the path of revolution alone.
The revolution preached is not necessarily a violent revolution.
228 XXX XXX XXX XXX As the writer has not stated in this article that the toiling masses should take up arms and fight for their rights and thus achieve a revolution we refuse to read this expression as inciting the masses to violent methods.
" In Niharendu Dutt Majumdar vs Emperor, AIR 1942 FC 23, the Federal Court examined the effects of a vulgar and abusive outburst against the Government made by the accused for which he was convicted under Rule 34 of the Defence of India Rules.
Gwyer, C.J., while acquitting the person commented more boldly (at 27): "There is an English saying that hard words break no bones; and the wisdom of the common law has long refused to regard an actionable any words which, though strictly and liberally defamatory, would be regarded by all reasonable men as no more than mere vulgar abuse.
XXX XXX XXX XXX XXX The speech now before us is full of them.
But we cannot regard the speech, taken as a whole as inciting those who heard it, even though they cried "shame shame" at intervals, to attempt by violence or by public disorder to subvert the Government for the time being established by law in Bengal or elsewhere in India.
That the appellant expressed his opin ion about that system of Government is true, but he was entitled to do so,; and his reference to it were, we might almost say, both common place and in common form, and un likely to cause any Government in India a moments uneasyness.
His more violent outburst were directed against the then Ministry in Bengal and against the Governor in Bengal in his political capacity but we do not feel able to say that his speech whatever may be thought of the form in which it was expressed, exceed ed the legal limits of comment or criticism."
" Even the European Court 's approach in protecting the freedom of expression is not different although they have the extensive list of circumstances for limiting the free dom.
Article 10 of the European Convention of Human Rights and Fundamental Freedom provides: 229 "(1) Every one has the right to freedom of expression.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, condi tions, restrictions or penalties as are pre scribed by law and are necessary in a demo cratic society in the interests of national security, territorial integrity or public safety, for the prevention of health or mor als, for the protection of the reputation or rights of others, for preventing the disclo sure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
However, the European Court in Handyside vs United Kingdom, [1976] EHRR/737 observed at 754; "The court 's supervisory functions oblige it to pay the utmost attention to the principles characterising a 'democratic socie ty '.
Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.
Subject to Article 10(2), it is applicable not only to 'information ' or 'ideas ' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb the State or any sector of the population.
Such are the demands of that pluralism, tolerance and broadminded ness without which there is no 'democratic society '.
This means, amongst other things, that every 'formality ', 'condition ', 'restric tion ' or 'penalty ' imposed in this sphere must be proportionate to the legitimate aim pur sued.
" This takes us to the validity of the plea put forward by the Tamil Nadu Government.
In the affidavit filed on behalf of the State Government, it is alleged that some organisa tions like the Tamil Nadu Scheduled Castes/Scheduled Tribes People 's Protection Committee, Dr. Ambedkar People 's Move ment, the Republican Party of India have been agitating that the film should be banned as it hurt the sentiments of people belonging to Scheduled Caste/Scheduled Tribes.
It is stated that the General Secretary of the Republican Party of India has warned that his party would not hesitate to damage the cinema 230 theatres which screen the film.
It is further alleged that there were some group meetings by Republican .Party members and Dr. Ambedkar People 's Movement with their demand for banning the film.
With these averments it was contended for the State that the exhibition of the film.
will create very serious law and order problem in the State.
We are amused yet troubled by the stand taken by the State Government with regard to the film which has received the National Award.
We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be sup pressed on account of threat of demonstration and proces sions or threats of violence.
That would tentamount to negation of the rule of law and a surrender to black mail and intimidation.
It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State.
The State cannot plead its inability to handle the hostile audience problem.
It is its obligatory duty to prevent it and protect the freedom of expression.
In this case, two Revesing Committees have approved the film.
The members thereof come from different walks of life with variegated experiences.
They represent the cross sec tion of the community.
They have judged the film in the light of the objectives of the Act and the guidelines pro vided for the purpose.
We do not think that there is any thing wrong or contrary to the Constitution in approving the film for public exhibition.
The producer or as a matter of fact any other person has a right to draw attention of the Government and people that the existing method of reserva tion in education institutions overlooks merits.
He has a right to state that reservation could be made on the basis of economic backwardness to the benefit of all sections of community.
Whether this view is right or wrong is another matter altogether and at any rate we are not concerned with its correctness or usefulness to the people.
We are only concerned whether such a view could be advocated in a film.
To say that one should not be permitted to advocate that view goes against the first principle of our democracy.
We end here as we began on this topic.
Freedom of ex pression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group of people.
The fundamental freedom 231 under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency.
Open criticism of Government policies and operations is not a ground for restricting expression.
We must practice tolerance to the views of others.
Intolerance is as much dangerous to democracy as to the person himself.
In the result, we allow these appeals, reverse the judgment of the High Court and dismiss the writ petitions of the respondents.
In the circumstances of the case, however, we make no order as to costs.
Y.L. Appeals allowed.
[/INST]The petitioner companies viz., Veilore Electric Corpora tion Ltd., Kumbakonam Electric Supply Corporation Ltd. and Nagapatam Electric Supply Corporation Ltd. were grantee of licences under the by the Government of the then Presidency of Madras for supply of electrical energy in their respective areas.
In exercise of its power under Section 4(1) of the Madras Electricity Supply Undertakings (Acquisition) Act, 1954, the State Government issued orders dated 12.1.1968 taking over the undertakings of the Petitioner Companies viz., Kumbakonam Electricity Supply Company and Nagapatam Electric Supply Company declaring that their undertakings shall vest in the Government with effect from the dates specified in their respective orders.
These two petitioner companies filed writ petitions in the High Court of Madras challenging the constitutional validity of the 1954 Act, which were dismissed.
The Writ Appeals filed by them were also dismissed by a Division Bench of the High Court.
Thereafter appeals were filed in this Court, which were however, later withdrawn.
Though proceedings for the acquisition of the undertak ings of these two companies had been initiated under the 1954 Act but full effectuation thereof had been interrupted by the interlocutory orders made by the courts staying delivery of possession of the undertaking.
Subsequently the Tamil Nadu Private Electricity Supply Undertakings (Acquisition) Act, 1973 came into force which, inter alia, nul 477 lifted the effect of the action taken under the the State Government issued fresh orders under Section 4(1) of 1973 Act declaring that the undertakings of these two petitioner companies shah vest in Government with effect from 1.12.1973.
A similar order was passed b.v the State Government under Section 4(1) of 1973 Act in respect of the third petitioner company viz. Vellore Electric Corporation Ltd., declaring that the undertaking of this company shall vest in the Government with effect from 7.1.1974.
By an order dated 2.2.1978 the State Government also rejected the application of the petitioner Vellore Electric Corporation seeking a change in the basis for determination of amount from basis A to basis B under the 1974 Act.
Writ Petitions were filed in this Court under Article 32 of the Constitution by the three affected companies chal lenging the constitutional validity of the Tamil Nadu Pri vate Electricity Supply Undertakings (Acquisition) Act, 1973, as well as the orders made under Section 4(1) on the ground that the 'Act ', which envisages the acquisition of the Electric Supply Undertakings of petitioners as violative of Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitu tion.
Dismissing the Writ Petitions, HELD: 1.
The electricity generated and distributed by the undertakings of the petitioner companies constitute "material resources of the community." for the purpose and within the meaning of Article 39(b).
1.1 The idea of distribution of the material resources of the community in Article 39(b) is not necessarily limited to the idea of what is taken over for distribution amongst the intended beneficiaries.
That is one of the modes of "distribution".
Nationalisation is other mode.
1.2 On an examination of the scheme of the impugned law the conclusion becomes inescapable that the legislative measure is one of nationalisation of the undertakings and the law is eligible for and entitled to the protection of Article 31 C. 1.3 The economic cost of social and economic reform is, perhaps, amongst the most vexed problems of social and economic change and constitute the core element in National isation.
The need for constitutional immunities for such legislative efforts at social and economic 478 change recognise the otherwise unaffordable economic burden of reforms.
It is, therefore, not possible to divorce the economic consideration or components from the scheme of the nationalisation with which the former are inextricably integrated.
The financial cost of a scheme of nationalisa tion lies at its very heart and cannot be isolated.
Both the provisions relating to the vestitute of the undertakings in the State and those pertaining to the quantification of the 'Amount ' are integral and inseparable parts of the integral scheme of nationalisation and do not admit of being consid ered as distinct provisions independent of each other.
Tinsukia Electric Supply Co. Ltd. vs
State of Assam, [1989](3) S.C.C. 709; applied. 1.4 In view Of the fact that what was acquired in the instant case were not merely "choses in action" but the undertakings themselves, it is not necessary to go into the question whether a "choses in action" can at all be ac quired.
State of Madhya Pradesh vs Ranojirao Shinde & Anr., ; and Madan Mohan Pathak vs Union of India & Ors., ; ; referred to.
The subject matter of the grant in relation to dis tribution in the community of such material resources be it electricity, water, gas or other essential amenities of life has a special nature.
New Orleans Gaslight Co. vs Louisiane Light & Heat Producing & Mfg. Co., ; ; The Okara Electricity Supply Co. Ltd. vs The State of Punjab, A.I.R. 1960 S.C. 284; referred to.
2.1 The impugned law is within the legislative compe tence of the State Legislature and such State law, with the Presidential assent, prevails and is not over borne by the Central law.
The impugned State law, by its 22nd section, expressly excludes the operation of any provisions of the Electricity Act, 1910, in so far as such provision is incon sistent with the provisions of the Stare Law.
The Constitu tional immunity afforded to the State law prevents any challenge to it on grounds based on Article 14 or 19. 3.
There is nothing unreasonable about the provision which merely recognises the obligation of a licensee to account for its acts in relation to a property which has already vested in Government.
There 479 fore Section 4 which pertains to the liability of the licen see to account to Government in respect of possession of and any benefit derived from the undertaking after the date of the vesting is not arbitrary and unconstitutional.
The deduction envisaged by Section 10(d) from the amount payable towards and on account of arrears of elec tricity charges payable by the licensee to the Government or the Electricity Board as the case may be for the supply of Electricity made by them to the licensee is a legitimate item of deduction.
It cannot be held to be arbitrary on the apprehension that even a disputed and untenable claim in that behalf becomes entitled to deduction.
Section 13(1)(e) makes such a dispute as one of the arbitrable disputes and no deduction of a disputed claim can be justified by the Government if the arbitrator who is or has been a District Judge or a retired High Court Judge holds that the deduction is unjustified.
If a debt is deducted from the "amount", the debt is satisfied and is extinguished and no further debt remains outstanding to get itself attached to and becomes an encum brance upon the substituted security viz., the 'amount '.
Section 6(2) and Section 10(e) must be construed harmonious ly and in a reasonable manner.
There is no scope for any apprehension of a possible double recovery of the same debt.
Therefore the Act cannot be challenged on the ground of possible double recovery of the same debt under Section 6(2) and Section 10(e).
The measure of the reimbursement for an asset with held by the licensee is the corresponding expenditure to be incurred by Government for replacement which, in eminently conceivable cases, could be the market value of the asset which is so withheld by the licensee and which has to be replaced to keep the undertaking functioning.
Therefore Section 10(f) cannot be held to be arbitrary on the ground that it is an instance of application of double standards because while recovery of "market value" is sought to be made for non delivery of the item whereas in computing the "amount" only the "book value" of such "property" or "right" is taken.
It cannot be said that the accredited representative is, under Section 8(1), given only a month 's time from the date of his appointment to signify the choice under Section 5 as to the basis of determination of the amount.
Section 8(1) also provides 'or such further time as may be granted by the Government '.
If the exercise of this power is arbi trary or capricious the licensee has remedies in Administra tive 480 Law.
But the provision itself cannot be held to be bad or invalid on the ground that time granted under the Section to signify choice under Section 5 is unreasonably short.
The order of the Government dated 2.2.1978 rejecting the application of the Petitioner, Vellore Electric Corpora tion and refusing a change in the basis for determination of amount from basis A to basis B is set aside and the Govern ment is directed to consider the matter afresh.
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<s>[INST] Summarize the judgementCriminal Appeal No. 109 of 1987.
From the Judgment and Order dated 12.6.86 of the Kerala High Court in Crl.
M.C. No. 511/1982 and 212/1985.
P.S. Poti, P.N. Puri and E.M.S. Anam for the Appellant.
Baby Krishnan for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This Appeal by Special Leave is by a Gazetted Police Officer to seek expunction of certain ad verse remarks passed against him by the High Court of Kerala in an order passed with reference to two Criminal Miscella neous Petitions filed by Respondents 2 and 3 herein without issuing any notice to him and without hearing him.
The somewhat unusual circumstances in which the appel lant has been made the victim of strictures by the High Court may now be looked into.
One Chandrasekaran Pillai residing within the limits of Karunagapally Police Station was charged under Section 302 I.P.C. for having committed the murder of his wife Komalavalli by first beating her and kicking her and then hanging her in order to make it appear that it was a case of suicide.
The accused 's son aged about 12 years and a neighbour claimed to have witnessed the beating as well as the accused dragging the deceased to the western side of the house.
A little later the son made bold to go into the house and found his mother having with a noose round her neck.
He raised alarm and the neighbours including his maternal uncle came to the house and cut the rope and rendered first aid unsuccessfully because Komalav alli had already died.
A report was given at Karunagapally Police Station and a case of "suspicious death" was registered and investigation was done by Shri T.P. Rajagopalan, Inspector of Police (Respondent No. 2) who was examined as P.W. 16 in the Ses sions Trial against the accused.
As the brother of deceased Komalavalli was not satisfied with the manner of investiga tion of the local police he filed a petition before the Deputy Inspector General Southern range.
Under orders of the Deputy Inspector General the investigation was entrusted to the Crime Detach 505 ment in which the appellant was serving as a Deputy Supdt.
of Police.
The appellant took charge of the case and his investigation revealed that Komalavalli 's death was due to homicide and not suicide.
The appellant was incharge of the investigation of the case only from.
26.11.
1980 to 5.1.
1981 and thereafter the further investigation was done by another police officer of the Crime Detachment who was examined as P.W. 18 in the trial.
The charge sheet was eventually filed by yet another officer viz. P.W. 19 an Inspector of Police.
The defence of the accused was that his wife Komalavalli had committed suicide and that he had not murdered her.
In support of his defence the accused placed reliance upon the first Investigating Officer viz. P.W. 16 carrying out a cellophone tape test on the palms of Komalavalli and sending the cellophone tapes to the Forensic Science Laboratory to find out whether any fibres of coir rope were found in the cellophone tape and if so whether the fibres had come out of the coir rope used for the hanging.
The report of the Foren sic Science Laboratory was that the cellophone tape con tained fibres of coir which were similar to the coir rope used for the hanging.
It was, therefore, contended that Komalavalli 's death was due to suicide as otherwise fibres from the coir rope used for hanging would not have been found in the palms of her hands.
To prove the despatch of the cellophone tapes to the Forensic Science Laboratory and the receipt of the report from the said Laboratory and its despatch to the Crime Detachment a Head Constable of Karuna gapally Police Station by name E. Koyakunju (Respondent No. 1) was examined as Defence Witness No. 2.
The Sessions Judge entertained serious doubts about P.W. 16 carrying out the cellophone tape test to lift any fibres of coir sticking to the palms of Komalavalli and sending the tapes to the Forensic Science Laboratory and the bona fides of the exercise.
We shall set out later the numerous suspi cious features noticed by the Sessions Judge regarding the conduct of P.W. 16 and DW 2 with reference to the carrying out of the cellophone tape test and the despatch of the tapes to the Forensic Science Laboratory and the entrustment of the report to the Crime Detachment.
For the present we will continue with the narrative so as to make known the circumstances which have led to the filing of this Appeal.
After evaluating the prosecution evidence the Sessions Judge held that the prosecution had failed to prove the case against the accused beyond reasonable doubt and, therefore, gave him the benefit 506 of doubt and acquitted him of the charge under Section 302 I.P.C.
It is significant to note that the acquittal was not rendered in acceptance of the defence case that Komalavalli had committed suicide but because the Court felt that it would not be safe to act upon the evidence of P.W. 2, the son and P.W. 3, the neighbour and convict the accused for the offence of murder.
In the course of his judgment the Sessions Judge made severe comments against P.W. 16, the Inspector of Police, D.W. 2, Head Constable and another Policeman P.C. 2599 and observed as follows: "Therefore in my view this is a fit case where appropriate action has to be taken against P.W. 16, D.W. 2 and P.C. 2599 who wrote Ext.
D 14 for the reasons stated earlier.
Otherwise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment.
When one wing of the police establishment tries to investigate properly and to book the culprit, P.W. 16, D.W. 2 and P.C. 2599 were trying to neutralise all the work that has been done by the Crime Detachment and to help the accused to get an acquittal.
This is a serious situation which the higher authorities in the police depart ment have to take serious notice of and curb the tendency even in the beginning.
" Aggrieved by the strictures passed by the Sessions Judge, the Inspector (P.W. 16) and the Head Constable (D.W. 2) filed Criminal Misc.
Petitions before the High Court of Kerala for expunging the adverse remarks made against them.
A learned single judge of the High Court, without making any examination of the conduct of the petitioners before him and without considering whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant in the dock for having failed to place before the Court the scientific materials which P.W. 16 had obtained in the course of investigation to find out whether Komalavalli 's death was due to suicide or homicide.
The learned judge had taken it for granted that P.W. 16 and D.W. 2 had acted in a blemishless manner and that the report of the Forensic Science Laboratory had been obtained through bona fide investigative process and it was the appellant who had schemingly kept back the crucial records from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncertain terms.
The relevant portions in the judgment where the appellant 507 who was examined as P.W. 17 in the Sessions Trial has been criticised are as under: "(para 6.) P.W. 17, Dy.
S.P. who conducted the investigation kept the above facts concealed purposely.
If the report sent by the Assistant Director of forensic Science Laboratory was made available to the court it would have gone a long way to establish innocence of the accused.
So to foist a false case of murder on the account he did not send the report of the Assistant Director of Forensic Science Labora tory to the Court.
He pleaded complete igno rance of the above examination when examined before court.
(para 8.) The part played by P.W. 17 is not beyond suspicion.
He had purposely concealed materials which were favourable to the ac cused.
It would appear that this officer was averse to scientific methods being made use of in investigation of crimes.
His attempt was only to see that the accused is convicted in this case.
This should not have been the approach of a senior officer like P.W. 17, who was investigating a very serious crime.
The life and liberty of innocent persons should not be placed at the mercy of such unscrupu lous officers.
It will be proper for the higher officers in the department to look into this matter and take proper corrective meas ures for future guidance.
" Stung by the remarks made against him without even heating, the appellant has preferred this Appeal to seek expunction of the remarks.
Now let us have a look at the distressing and suspicious features noticed by the Sessions Judge in the conduct of P.W. 16 and D .W. 2 in the "cellophone tape test" carried out by them and in obtaining the report of the Forensic Science Laboratory and the despatch of the opinion to the Crime Detachment.
The relevant portions extracted from the Judgment are as follows: (i) "The inquest Report prepared by this witness (P.W. 16) does not show that he had seized any cellophone tape or coir or that they were sent to the Forensic Science Labora tory": (ii) "There are no documents to show that the tape and coir 508 were taken into custody for the purpose of sending them to the Forensic Science Laborato ry in the case diary": (iii) "Normally any material to be examined by the Forensic Science Laboratory will be sent only through the court.
Admittedly the cellophone tape and the coir were not sent through court.
On the other hand it is stated that they were sent to the laboratory through a constable.
But the case diary does not show that any constable was sent to the Forensic Science Laboratory for handing over these articles": (iv) "P.W. 16 did not prepare, any mahazar for seizure of any cellophone tape and inquest report also does not state anything about any tape said to have been affixed by him on the palm or the dead body and taken for the pur pose of examination at the laboratory"; (v) "D.W. 1 Assistant Director of the Forensic Science Laboratory, Trivandrum, examined by the defence to prove his report Exhibit D. 10 regarding the presence of small bits of coconut fibres beating similarity to the coir rope that was also sent, had stated in cross examination that even if the tape was affixed to the coir (instead of the palms) and then sent, it will contain the fibres similar to the one found on the coir": (vi) "The investigation was taken over by the Crime Detachment on 26.
The cellophone tapes and the coir pieces are said to have been sent by P.W. 16 to the laboratory on 1.12.80 when he had ceased to be the Inves tigating Officer;" (vii) "Even if he had taken any cellophone tape and coir pieces at the time of inquest or thereafter and wanted them to be examined by the laboratory the proper course for him would have been to send them to the Dy.
S.P. who was investigating the case on 1.12.
1980;" (viii) D .W. 2 Head Constable, summoned and examined by the defence to prove the sending of the cellophone tapes and coir to the labo ratory and the report received from the labo ratory had stated "that there is no document in the 509 Policy Station to prove that cellophone tape or coir piece were sent from Karunagappally Police Station to the Forensic Science Labora tory, Trivandrum." (ix) "He further stated that the report re ceived from the laboratory was sent to the Crime Detachment on 7.1.
1981 but claimed that there is nothing to show that it was received by any officer of the Crime Detachment Office.
The despatch register Ext.
D13 only shows that a cover was handed over to a constable for delivery to the Crime Detachment Office.
But there is no acknowledgement to show that the constable had actually handed over the same to the office of the Crime Detachment at Quilon.
" (x) "D.W. 2 produced a notebook Ext.
D. 14 said to have been maintained by the constable to whom this cover was handed over for deliv ery at the office of the Crime Detachment.
In this the curious aspect is that the entry regarding this handing over is written in a sheet of paper which is affixed in the note book as an extra sheet .
This entry Ext.
D. 14 has been purposely manufactured for the purpose of this case and I have no doubt that it has been done at the instance of D.W. 2 the Head Constable and P.C. 2599 who wrote Ext.
D. 14.
Therefore the constable who wrote Ext.
D. 14 and DW 2 are equally responsible for this fraud." (xi) "The extent to which DW2 would go to help the accused is evident from the fact that he voluntarily producted Ext.
" (xii) "Ext.
D.17 is a letter sent from the Forensic Science Laboratory to the S.I. on 15.11.1980.
" This letter states that the sealed packet said to contain the MOs involved in Crime 220 of 1980 of Karunagapally Police Station were being returned unopened for want of forwarding note and certificate and hence the sealed packet may be resubmitted with proper forwarding note and certificate.
At the bottom of this letter in vernacular it is written "cellophone tape.
" Except this vernac ular writing there is nothing to show that the MOs referred to in Ext.
D. 17 were cellophone tape and coir piece .
As the packet sent from the Karunagapally Police Station was not opened, by the Forensic Science 510 Laboratory, the writing in vernacular at the bottom of Ext.
D. 17 could not have been written by anybody from the laboratory.
It is a subsequent interpollation probably at the instance of D.W. 2.
This was also interferring with official documents and tampering with it by D.W. 2 or somebody from the Police Station at Karunagapally.
It was with reference to all these features the Sessions Judge made his adverse remarks against P.W. 16, D.W. 2 and P.C. 2599 and observed that the conduct of the concerned official was highly open to suspicion, that as such a full fledged enquiry should be held against them and that "other wise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment.
" Coming now to the merits of this Appeal when P.W. 16 and D.W. 2 moved the High Court for expunging the adverse re marks against them the scope of the enquiry was confined to the bonafides of their action in the investigation proceed ing and whether the Sessions Judge was justified in drawing adverse inferences against them on the basis of suspicious features catalogued by him.
The High Court was not dealing with an appeal against the acquittal of the accused and there was no need or occasion for the High Court to go into the conduct of the appellant.
The enquiry in the Criminal Misc.
Petitions was only touching upon the conduct of P.W. 16 and D.W. 2 and not the conduct of the appellant.
Further more one material fact which the High Court had completely over looked is that the appellant ceased to be in charge of the case on 5.1.1981.
Thereafter the investigation of the case was taken charge of by P.W. 18 and still later by P.W. 19.
Even according to D.W. 2 the report from the Forensic Science Laboratory was sent to the Crime Detachment only on 7.1.1981 whereas the appellant ceased to be incharge of the case on 5.1.
1981 itself.
It, therefore, passes one 's com prehension as to how the appellant can be accused of having wilfully suppressed material documents from the notice of the court in order to secure a conviction unjustly against the accused in a murder case.
The High Court, it is surpris ing to find has not applied its mind to the series of suspi cious features noticed by the Sessions Judge to draw an adverse inference against P.W. 16 and D.W. 2 in conducting the so called cellophone tape test and sending the tape to the Forensic Science Laboratory for its report.
The learned judge has taken it for granted that P.W. 16 had actually carried out a cellophone tape test, that in carrying out such a test he was wedded to scientific methods of investi gation and that he and DW 511 2 had acted fairly and squarely in trying to find out the real cause of death of Komalavalli and that it was the appellant who had an aversion to the use of scientific methods in investigation of crimes and that the appellant had purposely concealed materials which were favourable to the accused in order to secure a conviction at any cost.
The learned judge had failed to see that as a matter of fact the accused was not kept in the dark regarding the cellophone tape test that was deemed to have been done but on the other hand he had full information of the test and its result, and it was on account of that he was able to summon police officials to figure as defence witnesses and police records as defence exhibits.
We are, therefore, clearly of opinion that the High Court had completely misdirected itself in its consideration of the petitions filed by respondents 2 and 3 to seek expunction of the adverse remarks made against them by the Sessions Judge.
We have also to point out a grievous procedural error committed by the High Court.
Even assuming for argument 's sake that for expunging the remarks against respondents 2 and 3 the conduct of the appellant required scrutiny and merited adverse comment, the principles of natural justice required the High Court to have issued notice to the appel lant and heard him before passing adverse remarks against him if it was considered necessary.
By its failure the High Court has failed to render elementary justice to the appel lant.
Yet another serious infirmity contained in the impugned order is that the High Court has failed to bear in mind the well settled principles of law laid down by this Court in more than one case that should govern the Courts before disparaging remarks are made against persons or authorities whose conduct comes into consideration before Courts of law in cases arising before them for decision.
In State of U.P. vs Mohd. Naim; , ,374equal to AIR 1964 S.C. 702 it was held as follows: "If there is one principle of cardinal impor tance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their func tions freely and fearlessly and without undue interference by anybody, even by this Court.
At the same time it is equally necessary that in expressing their opinions Judges and Magis trates must be guided by considerations of justice, fair play and restraint.
It is not infrequent that sweeping generalisations defeat the very purpose for which they are 512 made.
It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose con duct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
It has also been recognised that judicial pronounce ments must be judicial in nature, and should not normally depart from sobriety, moderation and reserve".
This ratio has been followed in R.K. Lakshmannan vs A.K. Srinivasan; , and Niranjan Patnaik vs Sashibhushan Kar & Anr., ; (to which one of us was a party).
Judged in the light of the above tests, it may be seen that none of the tests is satis fied in this case.
It is indeed regrettable that the High Court should have lightly passed adverse remarks of a very serious nature affecting the character and professional competence and integrity of the appellant in purported desire to render justice to respondents 2 and 3 in the petition filed by them for expunction of adverse remarks made against them.
The appeal is, therefore, allowed and the adverse re marks against the appellant in the order of the High Court which have been extracted above will stand expunged from the order under appeal.
A.P.J. Appeal allowed.
[/INST]The appeal of the State against the order of acquittal of the appellants of an offence under section 7(1) read with sections 16 and 17 of the , punishable with a sentence of imprisonment exceeding two years, was heard and decided by a Single Judge, though under Rule 1 read with Rule 2 H (e) of the Bombay High Court Appellate Side Rules 1960 such an appeal was required to be heard by a Division Bench.
The Single Judge allowed the appeal, held the appellants guilty and set aside the order of acquittal.
Allowing the appeal of the accused appellants, on the question "whether the decision of a Single Judge in a matter required to be decided by a Division Bench was a nullity," ^ HELD: 1.1 When a matter required to be decided by a Division Bench of the High Court is decided by a Single Judge, the judgment would be a nullity, the matter having been heard by a Court which had no competence to hear the matter, it being a matter of total lack of jurisdiction.
[1006C D] 1.2 In the instant case, the accused appellants were entitled to be heard under Rule 1 read with Rule 2 II(e) of the Bombay High Court Appellate Side Rules 1960, by at least two Judges constituting a Division Bench and had a right to claim a verdict as regards their guilt or innocence at the hands of two Judges.
This right cannot be taken away except by amending the rules.
So long as, the rules are in operation it 1005 would be arbitrary and discriminatory to deny them this right regardless of whether it is done by reason of negligence or otherwise.
Negligence can neither be invoked as an alibi nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules.
What can be done only by at least two Judges cannot be done by one Judge.
[1007A C] 2.
Even a 'right ' decision by a 'wrong ' forum is no decision.
It is non existent in the eye of law.
And hence a nullity.
The impugned judgment is no judgment in the eye of law.
It is set aside and appeal remanded to High Court for hearing by a Division Bench.
[1007C D] State of Madhya Pradesh vs Dewadas & Ors.
, [1982] 3 S.C.R. page 81 relied upon.
</s>
|
<s>[INST] Summarize the judgementAppeal No. 154 of 1976.
(From the Judgment and Order dated 16 12 1975 of the Judicial Commissioner 's Court, Goa, Daman and Diu in Election petition No. 2/74).
V.M. Tarkunde and Shri Natgin for the Appellant.
Hardayal Hardy, S.K. Mehta and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by Dr. Wilfred D 'Souza is against the judgment of learned Judicial Commissioner Goa whereby be dismissed.
election petition filed by the appel lant to declare the election of Francis Menino Jesus Ferrao respondent to the Goa Legislative Assembly to be void and to declare instead the appellant to be duly elected.
The appellant and the respondent were the two candi dates who sought election to the Goa Legislative Assembly from Benaulim Assembly constituency in the by election caused by the death of Vassuudev Garmalkar.
Polling took place on June 9, 1974 and the counting of votes on June 10, 1974.
After the first count, the Returning Officer found that the total number of valid votes cast in favour of the appellant was 4,656 and of those cast in favour of the respondent was 4,654.
234 ballot papers were rejected.
The respondent then applied for recounting of the votes and the said application was granted.
As a result of recounting, it was found that the appellant had secured 4,651 valid votes, while the respondent had secured 4,652 valid votes.
Seven ballot papers were rejected.
It may be mentioned that at the time of recounting 234 votes which had been earlier rejected in the first count were not taken into account.
Soon after the recount the appellant made an application for a second recount.
This application was granted and the recount took place on the following day, i.e., June 11, 1974.
As a result.of the second recount the appellant was found to have secured 4,650 valid votes while the respondent was found to have secured 4,652 votes.
One ballot paper was rejected.
At the time of second recount the ballot papers which had been rejected at the time of the initial counting and the first recount were not taken into account.
In the result the respondent was declared elected.
The appellant thereafter filed the present petition on July 15, 1974.
Besides the ground with which we are concerned in this appeal, the appellant challenged the election of the re spondent on the following two grounds: "(1) that in the first and second recount the Returning Officer illegally accepted .in favour of the returned candidate, some votes which he ought to have rejected, and rejected some votes in favour of the appellant which he ought to have accepted under law; (2) that the failure of the Returning Officer to re scrutinize the rejected votes in the first and second recounts is illegal" In respect of the above two grounds, objec tion was taken by the respondent that there was non compliance with the statutory require ments of section 83(1)(a) of the Representa tion of the People Act, 1951 (hereinafter referred to as the Act) inasmuch as the appel lant had not set out the material facts re garding those allegations.
Learned Judicial Commissioner as per order dated March 22, 1975 held that the appellant had failed to give material particulars in respect of the said two grounds.
The petition in that respect was held to have not disclosed a cause of action.
It was also held that the appellant was not entitled to an order of the court for re counting the polled votes.
The appellant, it may be stated, filed a petition seeking spe cial leave of this Court against the above order but that petition was dismissed on July 31, 1975.
The only ground which survives and with which we are concerned in this appeal is given in para 9 of the petition.
The same reads as under: "The petitioner further submits that the scrutiny and counting of the tendered votes is absolutely necessary in this case, consid ering the fact that the respondent has been declared the returned candidate after securing in his favour only 2 votes more than the petitioner and the fact that the tendered votes are 10, and that the non counting of such votes may materially affect the result of the election, in so far as it concerns the respondent, by the improper reception of votes originally polled by persons other than those who tendered their votes.
The petitioner, therefore, submits that the votes initially and improperly received should be removed and the tendered votes should be accepted and counted instead.
" The appellant accordingly asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes.
Prayer made by the appellant was that the 'election of the respondent be declared void and the appellant be declared to be duly elected.
The petition was resisted by the respondent, and in reply to para 9 of the petition the respondent submitted that no recount was justified 945 or required in law merely because of the returned candidate having secured only two votes more than the defeated candi date.
The respondent denied that the tendered votes were cast by genuine voters.
Issue No. 7 which is the only issue relating to the allega tion in para9 reads as under: "Whether the petitioner proves that the vote or votes were initially improperly received, and should be removed and in their place tendered vote or votes should be taken into account.
" The Judicial Commissioner in his order dated March 22, 1975, while holding that no material particulars had been given in the petition in respect of the other two grounds of the election petition, found that regarding the allegation about tendered votes material facts had been given and a cause of action had been disclosed.
An application was filed on April 4, 1975 after the above order on behalf of the appellant praying for a direc tion to the District Election Officer to send all the papers mentioned in rule 92 of the Conduct of Election Rules, 1961 to the court.
In reply to that application the respondent stated that the court should, before sending for the said papers, call upon the appellant "to make out a prima facie case by undertaking to examine all the persons who have cast the tendered votes and producing some of them and proving that they had cast the tendered votes and that they are the true votes." Learned Judicial commissioner after refer ring to the case of Rameshwara Nand vs Madho Ram(1) and some other cases, passed order dated September 11, 1975, the material part of which reads as under: "In the present case the tendered votes are only ten and I see no reason why the petitioner should be allowed to break the principle of secrecy, particularly because the necessity of knowing for whom the voters have cast their vote does not arise now.
The petitioner will have to establish his case before he succeeds in this petition.
He will have, therefore, to produce all his evidence before the counting is done.
I therefore order that the petitioner shall produce before the Court all the evi dence on which he relies.
I also order that the District Election Officer be asked to produce the election papers mentioned in rule 92(2) of the Conduct of Election Rules, 1961 before this Court.
" The appellant thereafter examined two witnesses, Joa quine Rodrigoes (PW 1) and Vina Farnandes (PW 2).
These two witnesses, according to the appellant, had marked tendered ballot papers at the time of polling.
Trunks containing election papers were also sent to the court by the Election Registration Officer.
As the keys of those trunks were not available, those trunks were broken open in the presence of the parties.
A Panchnama of the packets contained in those (1) A.I.R. 1968 Punjab 173.
trunks was then prepared.
Some of the packets having connection with the tendered ballot papers were opened after the conclusion of the evidence of the two witnesses examined by the appellant.
The case was thereafter argued and the election petition was dismissed.
In the judgment under appeal, learned Judicial Commissioner examined the evidence of the two witnesses produced by the appellant.
According to the testimony of these two witnesses, when they went to the polling booth, they were told that someone else had already cast their votes.
When these witnesses stated that they had not .voted, they were each given a paper for marking in favour of the candidate of their choice.
They then marked that paper and handed over that paper to the persons present there.
Learned Judicial Commissioner took the view that the evidence of these witnesses did not relate to tendered ballot papers but to the ordinary ballot papers.
The appel lant as such was held to have failed to prove his case.
In the result, the election petition was dismissed.
In appeal before us, Mr. Tarkunde on behalf of the appellant has argued that the evidence of the two witnesses examined on behalf of the appellant relates to the tendered ballot papers marked by them and that the finding of the Judicial Commissioner to the contrary is not correct.
As against that, Mr. Hardy on behalf of the respondent has canvassed for the correctness of the view taken by the Judicial Commissioner.
Before dealing with this aspect of the matter, we think it opposite to deal with the legal position relating to tendered votes.
Rule 42 of the Conduct of Election Rules, 1961 relates to tendered votes and reads as under: "42.
Tendered votes. (1) If a person repre senting himself to be a particular elector applies for a ballot paper after another person has already voted as such elector, he shall, on satisfactorily answering such ques tions relating to his identity as the presid ing officer may ask, be entitled, subject to the following provisions of this rule, to mark a ballot paper (hereinafter in these rules referred to as a 'tendered ballot paper ') in the same manner as any other elector.
(2) Every such person shall, before being supplied with a tendered ballot paper, sign his name against the entry relating to him in a list in Form 15.
(3) A tendered ballot paper shall be the same as the other ballot papers used at the polling except that (a) such tendered ballot paper shall be serially the last in the bundle of ballot papers issued for use at the polling sta tion; and 947 (b) such tendered ballot paper and its counterfoil shall be endorsed on the back with the words 'tendered ballot paper ' by the presiding officer in his own hand and signed by him.
(4) The elector, after marking a ten dered ballot paper in the voting compartment and folding it, shall, instead of putting it into the ballot box, give it to the presiding officer, who shall place it in a cover spe cially kept for the purpose." Perusal of the above rule makes it clear that the occasion for marking tendered ballot paper would arise if a person representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector.
The person so applying would then be ques tioned regarding his identity by the presiding officer and, in case he gives satisfactory answer, he would be supplied a tendered ballot paper which would then be marked by the aforesaid person.
Such person is also required to sign his name against the entry relating to him a list in form 16.
The tendered ballot papers shall be the same as other ballot papers used at the polling, except that it would be serially the last in the bundle of ballot papers issued for used at the polling station.
The words "tendered ballot paper" have to be endorsed on the back of the tendered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him.
The tendered ballot paper, it is further provided, is not to be put in the ' ballot box but is to be kept in a separate cover.
According to clause (6) of rule 56 of the Conduct of Elec tion Rules, no cover containing tendered ballot papers shall be opened at the time of the counting of the votes and no such tendered ballot papers shall be counted.
The Represen tation of the People Act, 1951 as well as the above rules are, however, silent on the point as to what use would be made of the tendered ballot papers and how they would affect the result of the election.
Learned counsel for the parties are, however, agreed that such tendered ballot papers, even though excluded from consideration at the time of counting of votes after the poll, can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled.
We agree with the learned counsel for the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews(1) and The Stepney Divi sion of the Borough of Tower Homlets(2) as also by.two Indian decisions, Kalicharan Singh vs Ramcharitar Rai Yadava & Ors(3) and A.K. Subbarava Gounder vs
G. Palanisami Gounder & Ors.(4) Before, however, a tendered ballot paper can be taken into account during the proceedings of election peti tion, evidence would have to be led on the following two points: (1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number.
(1)4 Omelly & Hardcastle 32, (2) Omelly & Hardcastle 34.
(3) (4) (2) It was such genuine voter who marked the tendered ballot paper.
So far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient.
Once the above two points are proved, the following consequences would follow: (a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and (b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked.
It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters.
The present election petition would have to be decided in the light of the legal position set out above.
We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers.
Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote.
When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked.
Both the witnesses were emphatic that they had not.
put their votes in the ballot box and that they handed them over to the persons present at the polling booth.
A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes.
The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses.
The name of Joaquina Rodrigues is mentioned in Form No. 15.
The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos.
So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper.
The counterfoil of the tendered ballot paper however, makes it clear that it re lates to serial No. 244 of electoral roll, part No. 12.
The said serial number of the electoral roll pertains to Vina Fernandes.
It 949 appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper.
The parties, however, cannot be made to.
suffer because of any such omission on the part of the presiding officer.
The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that they have not deposed about their having affixed two thumb impressions instead of one thumb impression.
As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers.
Their evidence also shows that they did not cast the initial votes which were cast in their names.
Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and pro ceeded to decide the cast after the evidence of the witness es of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined.
In view of the fact that the appellant has adduced prima facie proof in respect of two of the ten dered ballot papers, the Judicial Commission er, in our opinion, should now call upon the respondent to adduce his evidence.
The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.
We accordingly accept the appeal, set aside the judgment of the learned Judicial Commissioner and remand the case to him for fresh decision after recording the evidence of the respondent in accordance with law as ex plained above.
The parties in the circumstances shall bear their own costs of the appeal.
We are conscious of the fact that the election matters should be dis posed of as soon as possible and that the remand of the case would have the effect of further prolong ing the matter, yet looking to the face of the case, we find no escape from the conclusion of remand.
Learned Judicial Commissioner, we are sure, would try to expedite the dispos al of the case.
[/INST]Rule 42, Conduct of Election Rules, 1961, shows that the occasion for marking tendered ballet paper would arise if a person representing himself to be a paticular elector ap plies for a ballot paper after another person has already voted as such elector.
The person so applying, would then be questioned by the presiding officer regarding his identi ty, and in case he gives a satisfactory answer, he would be supplied a tendered ballot paper which would then be marked by such person.
has to sign his name against the entry relating to him in a list in Form 15, prescribed under the Rules.
The tendered ballot paper shall be the same as other ballet papers used at the polling, except that it would be serially the last in the bundle of ballot papers issued for use at the polling station.
The words 'tendered ballot paper ' have to be endorsed on the back of the ten dered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him.
The tendered ballot paper is not to.
be put in the ballot box, but is to be kept in a separate cover.
According to r. 56(6) no cover containing tendered ballot papers shall be opened or counted at the time of the counting of the votes.
But even though the tendered ballot papers are thus excluded at the time of counting they can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided, ( 1 ) the person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number; (2) it was such genuine voter who marked the tendered ballot paper; and (3) the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of the election being materially affected.
In such a case, the Court would exclude the vote initially cast from the number of votes of the candidate in whose favour it was cast; and take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked.
In the present case, the appellant and respondent were two candidates for election to a Legislative Assembly, and the respondent was declared elected having secured just two votes more than the appellant.
The appellant challenged the respondent 's election and contended that there were ten tendered votes and that they should be counted, after remov ing the votes initially and improperly cast.
At the trial of the election petition, the appellant examined on his behalf two witnesses, who had, according to the appellant, marked tendered ballot papers at the time of the polling.
The trial court however, took the view that the evidence of the two witnesses did not relate to tendered ballot papers but related to ordinary ballot papers, and dismissed the election petition.
Allowing the appeal to this Court, and remanding the case to the trial Court HELD: (1) The evidence of the two witnesses of the appellant is sufficient to prove that their evidence relates to tendered ballot papers.
Even though some of the formal ities which were required to be observed in connection with the tendered ballot papers were not complied with by the presiding officer, as for example, he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper, the parties cannot 943 be made to suffer for such an omission.
The evidence of the two witnesses cannot also be discarded on the ground that they have not deposed about their having affixed two thumb impression instead of one.
[948 F G] (2) In view of the fact that the appellant has adduced prima facie proof in respect of the two tendered ballot papers the trial court should now call upon the respondent to adduce his evidence.
The respondent 's evidence need not be confined to the two tendered ballot papers but may relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced evidence.
The trial court should thereafter decide the matter in the light of the legal position.
[949 D] Borough of St. Andrews (4 Orielly & Hardcastle 32), The Stepney Division the Borough of Tower Homlets (4 Orielly & Hardcastle 34), Kalicharan Singh vs Ramcharitar Raj Yadava & Ors.
and .4.
K. Subharava Gounder vs
G. Pala nisami Gounder & Ors.
referred to.
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<s>[INST] Summarize the judgementAppeal No. 243 of 1971.
Appeal by special leave from the judgment and order dated September 3, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 256 of 1970.
797 C. K. Daphtary, L. M. Singhvi, section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the appellant.
B. Sen and I. N. Shroff, for respondents Nos. 1, 3 and 4.
section section Khanduja, section K. Dhingra and Promod Swaroop for res pondent No. 2.
It may at the outset be mentioned that the appointment of the Vice Chancollor of the Saugar University is made by the Chancellor of that University under section 13 of the University of Saugar Act, 1946 (hereinafter referred to as "the Act") from 1 panel of not less than three persons recommended by the Committee constituted under sub section (2) of that section.
The Committee to be constituted under sub section (2) was to consist of three persons, two of whom shall be elected by the Executive Council by single transferable vote from amongst persons not connected with the University or a College and the third shall be.
nominated 'by the 'Chancellor who was, also empowered to appoint one of them as Chairman of the Committee.
It is unnecessary to refer to other provisions of this section because these are not relevant for the purpose of this appeal.
It appears that under the above provisions a Committee to submit a panel of names for the appointment of a Vice Chancellor for the University was duly constituted consisting of two persons elected by the executive Committee of the University, namely, G. K. Shinde, Retired Chief Justice and Justice T. P. Naik of the Madhya Pradesh High Court while the third member Shri C. B. Agarwal Retired Judge of the, Allahabad High Court was nominated by tfie Chancellor, Rajmata Vijaya Raje Scindia who also appointed G. K. Shinde as the Chairman of the Committee.
The Chairman thereafter appears to have carried on a correspondence to fix, a convenient place and time for the meeting, which was ultimately fixed at Indore on the 4th of April 1970.
Justice Naik was, however, unable to attend the meeting and in, his absence the other two persons, Shri Shinde panel of and Shri Agrawal met; as a Committee and submitteds names from which the Chancellor appointed the appellant on 7th April 1970 as a vice Chancellor with effect from 22nd June 1970 for, a period of five years.
The appellant at the time of the appointment, it seems, was acting as Vice Chancellor.
1061SupCI/72 798 On the 9th of April 1970, the Governor of Madhya Pradesh, Shri K. C., Reddy promulgated Ordinance No. I of 1970 by section 2 of which sub section (1) of section II was substituted by a new sub section (1) where under the Governor of Madhya Pradesh was made an ex officio Chancellor of that University.
By section 3, it was provided that as from the date of the coming into force of that Ordinance, the Chancellor in office immediately, before the date aforesaid shall cease to hold office of the Chancellor and the Governor of Madhya Pradesh shall assume the said office.
By virtue of this Ordinance Rajmata Vijaya Raje Scindia ceased to be.
the Chancellor.
On the 23rd April 1970, the Governor again passed another Ordinance by section 2 of which, he substituted section 43 of the Act by a new section 43.
By section 3 a new section 43A was also added.
Section 4 made the amendments made by sections 2 and 3 to operate retrospectively as from the commencement of the original Act.
The amended sections 43 and 43A are as follows "43.
If any question arises whether any person hi,,, been duly appointed, elected, nominated or coopted as, or is entitled to be, a member of any authority or other body of the University or any officer of the University, the matter shall be referred to the Chancellor whose decision thereon shall be final.
43A. The Chancellor may, either on his own motion or on the application of any party interested, review any order passed by himself or his predecessor in office if he is of the opinion that it is not in accordance with the provisions of this Act, the statutes, the Ordinance or the Regulations or is otherwise improper and pass such orders in reference thereto as he may think fit." After the above Ordinances were promulgated, the Secretary to the Governor of Madhya Pradesh wrote on the 20th May 1970 to the appellant as follows : "The question has come up before the Chancellor whether the meeting of the committee constituted by his predecessor under section 1 3 (2) (9 the Act held on 4th April 1970 at Indore at which only two members out of the three were present was legal, and whether the recommendations made by the committee at that meeting were legally valid.
The Chancellor has been advised that the meeting held on the 4th April with only two men present and.
the decisions taken at the meeting .were not legal.
As, a consequence, the orders issued by the University office dated 14th April would have to be rescinded.
799 Before the Chancellor takes action in accordance with legal advice, he has desired that you should be asked if you have anything to state why such action should not be taken.
I am desired to request you to send your reply as early as possible, and at the latest within a week".
To this letter the appellant sent a reply on the 9th June 1970 after having earlier obitained an extension of time.
In that reply he tried to make out a case that the recommendation of the Committee of two members out of three was perfectly valid and in support of it he cited various authorities and also a precedent of the same Governor who as the Chancellor of Indore University seems to have maintained the selection made 'by his predecessor in similar circumstances.
The Governor did not, however, accept the appellant 's plea but passed the following impugned orders on the 15th June 1970 : "WHEREAS, on applications made in that behalf, the Chancellor is of the opinion that order dated the 7th April 1970, passed by his predecessor in office appointing Shri Ishwar Chandra as Vice Chancellor of the University of Saugar with effect from the 22nd June 1970, for a period of five years is not in accordance with provisions of section 13 of the University of Saugar Act, 1946 (XVI of 1946) (hereinafter referred to as the said Act); NOW, THEREFORE, in exercise of the powers conferred by section 43A of the said Act, 1, the Chancellor of the University of Saugar, hereby (i) cancel the aforementioned order dated the 7th April 1970 appointing Shri Ishwar Chandra as ViceChancellor; and (ii) direct that the committee be constituted for submission of panel in accordance with the provisions of section 13 of the said Act".
On the 1st July 1970, a Writ Petition was filed in the High Court of Madhya Pradesh and it appears that on the 3rd July 1970 the Court directed the appellant to produce the correspondence between the Chairman, and the members of the Selection Committee in respect of the meeting to be held to recommend the names for the appointment of a Vice Chancellor.
The appellant, if seems, produced the correspondence with an affidavit on the 25th July 1970 stating that he had obtained the correspondence from the Chairman of the Committee.
the former Chief,Justice Shinde.
On the ' 3rd of September 1970 'rule nisi was refused.
800 On the 19th September 1970 die application for leave to appeal to the Supreme, Court was also rejected.
In the latter order two facts had 'been stated which have been challenged as incorrect.
The first one was that the Chairman had at first fixed Bhopal as the venue of the meeting and secondly.that as the working Vice Chancellor of the University, the petitioner had access to all the documents relating to the meeting and his detailed reply given to the Chancellor was grounded on some of them.
Though there is some justification in these contentions what has to be seen is whether the order rejecting the Writ Petition was justified, and if so, now that the order of the Chancellor has been impugned, i.e that order valid.
It is clear from the Governor 's impugned order that the appellant 's appointment was held to be invalid because only two members of the Committee were present at the meeting.
The High Court while holding that in the absence of any provision in the relevant enactment or the rules or regulations made thereunder, a majority of members of a selection committee like the one in the case before them would constitute the quorum, however presumed that the question for consideration of the Chancellor was not merely one relating to the existence of the quorum requisite for a valid meeting but something different.
On that assumption it examined the correspondence which ensued between the Chairman and Justice T. P. Naik to ascertain whether in fact a valid meeting had been called.
According to the learned Judges, Justice Naik had written to the Chairman to say that he, the Chairman, was determined to hold the meeting presumably in his absence, and, therefore, the High Court thought that if the Chancellor, acting under section 43A of the Act formed the opinion that the meeting held on that date was not legal, it cannot be said that there was no prima facie material for the formation of that opinion, reached by him after giving to the, petitioner an oppor tunity to state why the action proposed should not be taken.
The assumption in this order rejecting the Writ Petition is not warranted, firstly, because the correspondence does not show that there was any deliberate attempt made by the Chairman to exclude one of the members in this case, Justice T. P. Naik, and secondly, that the Chancellor had because of this exclusion, declared the meeting held on the 4th April 1970 as not being valid.
We have already pointed out that the Chancellor was merely concerned with the legality of the recommendation made by two out of three members and not that,any attempt was made by the ' Chairman, to, exclude one of the members, Neither the showcase notice, nor the reply given by the appellant to that notice, nor even: the order of the Chancellor indicates any such ground as that assumed by the High Court to form the basis of the,Chancellor 's order.
The correspondence shows that the Chairman 801 had written a letter on the 12th February 1970 in which , he inquired of Justice Naik whether the 7th and 8th March 1970 would suit him to meet at Bhopal to consider the names for the panel.
Later on the 20th February 1970, he wrote another letter saying that the other member was abroad, and therefore, the meeting which was proposed to be held on the 7th or 8th cannot be held and that he would let him know when a new date was fixed.
In fact, Justice Naik replied on the 27th February 1970 acknow ledging these letters and asking him to let him know the date of the meeting as and when fixed.
On the 8th March 1970 Mr. Shinde again wrote to Justice Naik fixing the meeting on the 12th March 1970 at 10.30 a.m. at Indore and also suggested that if necessary they may meet the next day, the 22nd March 1970.
On the 16th March 1970 Shinde sent a telegram to Justice Naik asking him to wire if 4th April was suitable at Indore.
On the 18th March 1970, he again sent a telegram to him saying : "Doctors Forbid travel stop wire whether 4th & 11th April suitable for Indore".
Justice Naik sent two telegrams, one on the 21st March 1970 saying that 4th is suitable at Saugar or Bhopal and another on the 27th March 1970 stating that both 4th and lath suitable at Saugar or Bhopal.
He also wrote two letters on the 26th and 27th to Shinde.
Shinde had earlier written on the, 24th March 1970 to Justice Naik in which he said as follows "The contents of your telegram, were conveyed to me on the phone today.
It appears that 4th and 11th.
April both are suitable to you at Saugar and Bhopal.
As I told you before, I am recovering from the attack of virus fever and am, therefore, not, ' strong enough to undertake a car journey of 120 miles to, Bhopal.
There is no @ convenient plan ,to come: to Bbopal either.
If I come by plane I shall have to stay over the night at the Circuit House and as I am still on diet, the Circuit House food will not suit me.
As you can come up to Bhopal you can easily come to Indore either by Car or 'by Plane.
The plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 am.
After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned, if you let me know if you are vegetarian or non vegetarian, I can arrange to give you lunch at my place.
If it is impossible for You to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice Chancellor of the Saugar University by the 3rd of April.
I would, however, request you to make it colonyient to attend the meeting at Indofe.
I have already sent you a tele gram to the effect that the meeting is fixed on the 4th 802 of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m." Hoping to hear from you by the return of post and with kind regards".
Before this letter reached to the telegram received by him, Justice Naik wrote a letter to Shinde as follows : "I am in receipt of your telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore University.
I regret my inability to be present at Indore on the date and time specified, though I may be able to attend the meeting if 'the venue is changed to Bhopal.
It is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would not be possible for me to attend it there on that date.
Anyway, knowing full well that it would not be pos sible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence.
I can only regret your decision.
If you are still interested in having my presence for the meeting, you may fix it either on the 4th or the, 11th April 1970 at Saugar or Bhopal, though Bhopal would be more convenient to me personality.
I hope you have recovered from the effects of your illness by now".
This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there, presumably in his absence.
On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Side did not take up the attitude that the meeting was being held presumably to keep him away from attending it.
Justice Naik, however, tried to explain his difficulty.
He said : "I am in receipt of your letter dated 24th March 1970.
1 am sorry to note that you have not yet recovered from the effects of your illness.
I do hope you shall soon get well.
803 As for my coming to Indore, I had considered the possibility of my going there by.
air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy.
I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University.
As for your kindly suggestion that I may by a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University Act.
With kind regards".
This letter clearly negatives the assumption in the High Court 's order that Shinde was trying to keep out Justice Naik from the meeting.
On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting.
There is also nothing in the materials on the record to show that the correspondence cited above was persued by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order.
It cannot, therefore, be assumed that the Governor was influenced by the above correspondence.
It is rather unfortunate that the appellant 's Writ Petition was dismissed in limited and without a proper appreciation of all the relevant facts.
There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended.
The High Court delivered into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified.
It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members.
If for one reason or the other one of them could not attend, that does not make the meeting of others illegal.
In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid.
804 This proposition is well recognised and is also so stated in Halsbury 's Laws of England, Third Edition (Vol.
IX, page 48, Para 95).
It is, therefore, unnecessary to refer to any decisions on the subject.
In the view we have taken, the appeal is allowed with costs against respondent 3, the order of the Chancellor revoking the appointment of the appellant is set aside and the appellant is declared to have been validly appointed as Vice Chancellor Of the Saugar University as from the 22nd June 1970.
G.C. Appeal allowed.
[/INST]Section 34 of the Indian Penal Code is merely explanatory.
It does not create any specific offence.
Under this section several persons must be actuated by a common intention and when in further (1) A.I.R. 1936 Lah.
1202 ance of that common intention a criminal act is done by them, each of them is liable for that act as if the act had been done by him alone.
There is a clear distinction between the provisions of section 34 and section 149 of the Indian Penal Code and the two sections are not to be confused.
The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime.
In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime.
In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone.
There is no question of common intention in section 149 of the Indian Penal Code.
An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and the other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled.
Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.
There is a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in one respect namely that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence.
A charge for a substantive offence under section 302, or section 325 of the Indian Penal Code, etc.
is for a distinct and separate offence from that under section 302, read with section 149 or section 325, read with section 149, etc.
A person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure.
There was no room for the application of section 236 of the Code of Criminal Procedure to the facts of the present case.
The provisions of section 236 of the Code of Criminal Procedure can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed.
In the present case there was no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceeased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed, 1203 In the present case there was no question of any error, omission or irregularity, in the charge within the meaning of section 537 of the Code of Criminal Procedure because no charge under section 302 of the Indian Penal Code was in fact framed.
There was an illegality in the present case and not an irregularity which was curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure.
Assuming however that there was merely an irregularity which was curable, the irregularity in the circumstances of the case was not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code.
By framing a charge under section 302, read with section 149, Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged.
In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease.
Barendra Kumar Ghosh vs Emperor ( (1925] I.L.R. 52 Cal. 197), Queen vs Sabid Ali and others ( [1873] 20 W.R. (Cr.) 5), Panchu Das vs Emperor ( Cal.
698), Beazuddi and Others vs King Emperor ([1901] , Emperor vs Madan Mandal and Others ( Cal. 662), Theethumalai Gounder and Others vs King Emperor ([1924] I.L.R. , Queen Empress vs Bisheshar and Others ( All. 645), Taikkottathil Kunheen ( [1923] 18 L.W. 946), Bamasray Ahir vs King Emperor ( Patna 484), Sheo Ram and Others vs Emperor (A.I.R. 1948 All. 162), and Karnail Singh and another vs State of Punjab ( , referred to.
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<s>[INST] Summarize the judgementvil Appeal Nos.
4068 70 of 1989 etc.
9 From the Judgment and Order dated 26.8.88 of the Cen tral Administrative Tribunal, Bangalore in Appln.
99 1 993 of 1988.
For the appearing parties: G. Ramaswamy, Additional Solicitor General, Anil Dev Singh, 277 U.R. Lalit, C.V. Subba Rao, T.C. Sharma, Ms. A. Subhashini, C.S. Vaidyanathan, S.R. Setia, S.R. Bhat, Mrs. V.D. Khanna, R. Ramachandran, N.B. Bhat, Altar Ahmed, and S.K. Bhattacha rya.
The Judgment of the Court was delivered by DUTT, J.
These special leave petitions have been heard at length and elaborate submissions have been made on behalf of the parties at the preliminary hearing and, accordingly, we grant special leave in all these matter and proceed to dispose of the same on merits.
These appeals have been preferred by the Union of India and some erstwhile Emergency Commissioned Officers (for short 'ECOs ') and Short Service Commissioned Officers (for short 'SSCOs ') and directed either against the judgment of the learned Single Judge of the Calcutta High Court or against the judgment of the Central Administrative Tribunal, Bangalore.
The Tribunal has struck down the impugned rules, namely, rule 3(2)(d) of the Indian Forest Service (Regula tion of Seniority) Rules, 1968, hereinafter referred to as 'IFS (Regulation of Seniority) Rules, 1968 ', and clauses (c) and (d) of sub rule (3) of rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to as 'IPS (Regulation of Seniority) Rules, 1954 ', as ultra vires Articles 14 and 16 of the Constitution of India and has directed the Government of India to assign fresh years of allotment to the ECOs and SSCOs, who were some of the respondents before the Tribunal.
Before the Calcutta High Court, rule 3(2)(d) of the IPS (Regulation of Seniority) Rules, 1954 was involved and the High Court on a construction of that rule allowed the writ petition of the respondents and set aside the impugned order relating to the year of allotment of ECOs and SSCOs.
The period between 1.11. 1962 and 10.1.
1968 is marked by three events, namely, Indo Chinese War followed by Indo Pakistan War and the proclamation of emergency.
These ECOs and SSCOs voluntarily entered the Armed Forces of the Union of India at a time when the security of the nation was in peril due to external aggression.
As they were engaged in defending the country by accepting the war service, they did not get any opportunity to enter into civil services.
The Central Government assured them that after the cessation of emergency, they will be rehabilitated in civil life so that they might not 278 suffer on account of their rendering services to the nation.
The grievance of the respondents who have been recruited to Indian Forest Service or the Indian Police Service from State Services is that although the ECOs or SSCOs, have been recruited in the said All India Services after the respond ents, yet their year of appointment has been fixed earlier than the year of allotment of the respondents.
At this stage, we may refer to the impugned rules.
Rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1986 provides as follows: "3(2).
The year of allotment of an officer appointed to the Service shall be (a). . . . . . (b). . . . . . (c). . . . . . (d) Where an officer is appointed to the Service in accordance with rule 7A of the Recruitment Rules, deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of his commission where there was only post commission training according as he qualified for appointment to the Service in his first or second chance, as the case may be, having been eligible under regulation 4 of the Indian Forest Service (Appointment by Competitive Examination) Regulations, 1967.
Explanation.
If an officer, who qualified himself for appointment to the Service in a particular year, could not be so appointed in that year on account of non availability of a vacancy and is actually appointed in the next year, then his year of allotment would be depressed by one year.
He shall be placed above all the officers re cruited under Rule 7A of the Recruitment Rules and who have the same year of allotment.
" Rule 3(2)(d) refers to rule 7A of the Recruitment Rules which provides, inter alia that till January 28, 1974, 20 per cent of the per 279 manent vacancies in the Indian Foreign Service to be filled by direct recruitment in any year shall be reserved for being filled by ECOs and SSCOs of the Armed Forces of the Union of India, who were commissioned after November 1, 1962 and who have been released from the Armed Forces after a spell of service.
Clauses (c) and (d) of sub rule (3) of rule 3 of IPS (Regulation of Seniority) Rules, 1954 provides as follows: "3(3)(a) . . . . . (d) . . . . . (c) The year of allotment of an offi cer appointed to the Service in accordance with rule 7A of the Indian Police Service (Recruitment) Rules, 1954, shall be deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of his commission where there was only post commission training according as he qualified for appointment to the Service in his first or second chance, as the case may be, having been eligible under rule 4 of the Indian Police Service (Appointment by Competi tive Examination) Regulations, 1955.
Explanation.
If an officer, who qualified himself for appointment to the Service in a particular year could not be so appointed in that year on account of non availability of a vacancy and is actually appointed in the next year then his year of allotment would be depressed by one year.
He shall be placed above all the officers recruited under Rule 7A of the Recruitment Rules and who have the same year of allotment.
(d) The year of allotment of an offi cer appointed to the Service in accordance with rule 7A of the Indian Police Service (Recruitment) Rules, 1954, having been eligi ble under the second proviso to sub regulation (iii) of Regulation 4 of,the Indian Police Service (Emergency Commissioned and Short Service Commissioned Officers) (Appoint 280 ment by Competitive Examination) Regulations, 1971, shall be deemed to be the year in which he would have been so appointed at his first or second attempt, after the date of joining pre commission training or the date of his Commission where there was only post comission training and also after the lapse of as many years as would have been necessary for him to complete his studies, in the normal course, for the award of the educational qualifica tions prescribed for direct recruitment to the Indian Police Service according as he quali fied for appointment to the Service in his first or second chance as the case may be." Both the above rules, namely, IFS (Regulation of Senior ity) Rules, 1968 and IPS (Regulation of Seniority) Rules, 1954 have been framed under All India Services Act, 1954, hereinafter referred to as 'the Act '.
The Act, before it was amended, conferred power on the Central Government to make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Services.
No power was, however, conferred by the Act on the Central Government to frame rules with retrospective effect.
The impugned rules, namely, rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1968 and clauses (c) and (d) of sub rule (3) of rule 3 of IPS (Regulation of Seniority) Rules, 1954 are admittedly retrospective in operation.
It is now a settled principle of law that if the statute under which a rule is framed does not confer on the authority concerned the power to make such a rule with retrospective effect, the authority will have no power to frame any rule with retro spective effect.
The impugned rules, with which we are concerned, have been made by the Central Government with retrospective effect, although there was no such power conferred by the Act in that regard.
The All India Services (Amendment) Act, 1975 has been enacted by Parliament for the purpose of validating the impugned rules.
By section 2 of the Amendment Act, a new sub section (1 A) has been inserted after sub section (1) of section 3 of the Act, which has been referred to as "the principal Act" in the Amendment Act.
Sub section (1 A) pro vides as follows: "(1 A).
The power to make rules conferred by this section shall include the power to give retrospective effect from a 281 date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the inter ests of any person to whom such rule may be applicable.
" The provision for validation is contained in section 3 of the Amendment Act and it reads as follows: "3.
No rule made, or purporting to have been made, with retrospective effect, under section 3 of the principal Act before the commencement of this Act shall be deemed to be invalid or ever to have been invalid merely on the ground that such rule was made with retrospective effect and accordingly every such rule and any action taken or thing done thereunder shall be as valid and effective as if the provisions of section 3 of the principal Act, as amended by this Act, were in force at all material times when such rule was made or action or thing was taken or done.
" The ECOs and SSCOs, who are some of the appellants, after demobilisation of the military emergency service, have been appointed in the Indian Police Service and the Indian Forest Service in 1969.
In view of their past service in the army, which they had voluntarily joined for the defence of the country during the period between 1.11.
1962 and 10.1.
1968, the impugned rules were framed providing for the year of allotment of such officers appointed in the Indian Police Service or in the Indian Forest Service with retrospective effect from the date they would have been appointed at their first or second attempt after the date of joining pre com mission training or the date of their commission where there was only post commission training.
Thus, even if an officer has been appointed in an All India Service in 1969 in a regular manner after being selected on the basis of the result of the competitive examination in 1969, his year of allotment will be one or two years after his joining the pre commission training in the army service.
Suppose, an officer, after having been selected for the army service, joined his pre commission training in 1963.
In 1963 he was, therefore, eligible for taking a competitive examination for being recruited to an All India Service.
If he was not successful, he would get a second chance in the next year, that is, in 1964.
If, after his release from the army in 1968, he took the competitive examination and successfully competed in such examination and was selected for appoint ment in the first chance.
according to the impugned rules, his 282 year of all allotment would be 1963.
If he was either not successful in his first attempt or did not avail himself of the same, he would have another chance to compete in the examination for recruitment in an All India Service in the next year, that is, in 1969 and if he was successful and appointed, his year of allotment would be 1964.
In other words, and impugned rules give weightage to ECOs and SSCOs of the past services rendered by them in the emergency army service.
It has been already noticed that the Tribunal has struck down the impugned rules as ultra vires the provisions of Articles 14 and 16 of the Constitution.
According to the Tribunal, the impugned rules are discriminatory in nature without any reasonable justification therefore and thus offends against the provisions of Articles 14 and 16 of the Constitution.
The same contention has been advanced on behalf of the respondents before us.
It has not been disput ed before the Tribunal and also before us, that the ECOs and SSCOs formed a definite class, distinct from the respondents or other officers of Indian Forest Service and Indian Police Service.
In other words, it is the admitted position that the classification of ECOs and SSCOs is rounded on an intel ligible differentia which distinguishes them from the re spondents and other officers of Indian Police Service and Indian Forest Service.
It has, however, been strenuously 'urged that the differentia on which the classification is rounded is lacking in rational relation to the object sought to be achieved by the impugned rules and, as such, it does not satisfy the test of reasonable classification as contem plated by Article 14 of the Constitution.
This is also the view of the Tribunal.
We are unable to accept the contention.
The impugned rules have been framed with a view to giving weightage to the ECOs and SSCOs in recognition of their past services in the army during the period of emergency.
We fail to under stand why the classification has no rational relation to the objects sought to be achieved by the impugned rules.
The classification has been made only for the purpose of compen sating the ECOs and SSCOs for their lost opportunity because of their joining the army service and the impugned rules best subserve the purpose.
Accordingly, we do not think that there is any merit in the finding of the Tribunal and also in the contention of the respondents that the impugned rules are violative of the provisions of Articles 14 and 16 of the Constitution.
Both the High Court and the Tribunal have taken the view that although section 3 of the All India Services (Amend ment) Act, 1975 validates the impugned rules purporting to have been made with 283 retrospective effect, yet the impugned rules are invalid inasmuch as they prejudicially affect the interests of the respondents.
Much reliance has been placed by the respond ents on the provision of the new sub section (I A) of sec tion 3(1) of the Act as inserted by section 2 of the Amend ment Act, 1975.
Sub section (1 A) provides, inter alia, that no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.
The contention of the appel lants is that sub section (1 A) is itself not retrospective in operation and, as such, has no application to the im pugned rules which are retrospective in operation, that is, before sub section (1 A) was inserted in section 3.
It is, however, difficult to accept the contention of the appellants that sub section (i A) is only prospective and does not apply to the impugned rules which are retro spective in operation.
It has been already noticed that the impugned rules have been validated with retrospective effect by section 3 of the Amendment Act which, in validating any rule made with retrospective effect under section 3 of the Act, provides that no such rule shall be deemed to have been invalid or ever to have been invalid merely on the ground that such rule was made with retrospective effect and, accordingly, every such rule and any action taken or thing done thereunder shall be as valid and effective as if the provisions of section 3 of the Act (principal Act), as amended by the Amendment Act, were in force at all material times when such rule was made or action or thing was taken or done.
In view of section 3, it has to be deemed that provisions of Section 3, as amended by the Amendment Act, were in force at all material times when such rule was made.
In view of the provisions of section 3 of the Amendment Act, sub section (1 A) which has been inserted in section 3 of the Act by way of amendment, must be deemed to be in force at the time the impugned rules were made.
But the question is, even though sub section (1 A) is deemed to have been there at the time the impugned rules were framed with retro spective effect, whether the impugned rules prejudicially affect the interests of the respondents.
It is urged on behalf of the respondents that the im pugned rules take away the vested rights of the respondents and, consequently, prejudicially affect their interests.
Accordingly, it is submitted that the impugned rules are illegal and cannot operate retrospectively in the face of the provision of sub section (1 A).
This contention does not at all impress us.
The respondents have been given a partic ular seniority in accordance with the relevant rules.
The seniority of the respondents is not taken away or interfered with by the impugned rules.
The year of 284 allotment of the respondents remains the same and is not altered to their prejudice.
The impugned rules only provide for giving weightage to the ECOs and SSCOs for their past services in the army during the emergency period and their year of allotment will be determined in accordance with the impugned rules.
It is, however, complained that by giving the ECOs and SSCOs a year of allotment which is prior to the year of allotment of the respondents, the respondents have become their juniors and their (respondents) chances of promotion are seriously affected.
At this stage, we may also notice the contention of Mr. Raju Ramachandran, learned Counsel appearing on behalf of some of the respondents.
It is submitted by the learned Counsel that as the respondents have acquired a particular seniority, section 3 of the Act as amended, if read as suggested by the army officers, would contravene the funda mental rights of the respondents.
This extreme contention is not sustainable on the face of it, for even assuming that the seniority of the respondents or their chances of promo tion are affected by the impugned rules, surely it cannot be said that there has been a contravention of the fundamental rights of the respondents.
Nobody has any fundamental right to a particular seniority or to any chance of promotion.
It is not the case of respondents that because of the impugned rules their cases for promotion will not be taken into consideration by the authorities.
The decision in A. Janard hana vs Union of India; , has no manner of application to the facts and circumstances of the instant cases.
In that case, this Court has laid down that it is open to the Government to retrospectively revise service rules, it the same does not adversely affect vested rights.
Further, it has been observed as follows: "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 born in service and some decisions especially the ratio in Jaisinghani 's case as interpreted in two B.S. Gupta 's 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 render ing service, the direct recruit may be a schoolian or college.
going boy.
He emerges from the education institu 285 tion, appears at a competitive examination and starts challenging everything that had hap pened during the period when he has had noth ing to do with service.
" We have already pointed out that the impugned rules do not affect the vested rights of the respondents adversely.
In Janardhana 's case, this Court was dealing with the ques tion of seniority of promotees vis a vis fresh recruits from the market and observed that when the promotee was promoted and was rendering service, the direct recruit might be a schoolian or college going boy.
In the instant cases before us, the dispute is not between promotees and direct re cruits, the latter having no past services to their credit.
The ECOs and SSCOs are not in the position of direct re cruits, for they have a record of past services in the army which have been taken into consideration for fixing their year of allotment in accordance with the impugned rules.
So, Janardhana 's case has no manner of application to the facts and circumstances of the instant case before us.
It is not that for the first time by impugned rules, the past services of the ECOs and the SSCOs have been taken into consideration for the purpose of giving them their year of allotment with retrospective effect, that is to say, on a date earlier than their actual appointment in the Indian Police Service or in the Indian Forest Service, as pointed out by Mr. G. Ramaswamy, learned Additional Solicitor Gener al appearing on behalf of the Government appellants.
The learned Additional Solicitor General has drawn our attention to the notings in the Government files for the purpose of showing the Government policy to rehabilitate the ECOs and SSCOs in All India Services, Central Services and State Services in order to ensure good response and to provide sufficient incentives for those who offered themselves for emergency commissions.
These, notings start from November 17, 1962.
It is not necessary for us to make a particular reference to the notings in the Government files.
Suffice it to say that in view of the voluntary offer of services by the of youngmen our country to defend the country against foreign aggression, the Government took a very sympathetic view and took steps to compensate them after their discharge from the Emergency Commission Service, for the opportunity lost by them in joining the All India Services.
One thing which is very significant to be mentioned here that although their past services were taken into consideration, the Government did not relax the minimum qualifications required for the All India Services.
These ECOs and SSCOs had to appear in the competitive tests held by the Union Public Service Commission and they were appointed only 286 after they become successful in such tests.
In this connection, we may refer to the Office Memoran dum dated January 29, 1966 providing for the rehabilitation of the ECOs and SSCOs recruited since November 1, 1962, after their release from the Armed Forces.
The contents of the Memorandum are in the nature of executive instructions, but such executive instructions were followed and were given effect.
Paragraph 6 of the Memorandum which deals with seniority and pay reads as follows: "6.
Seniority and pay.
Seniority and pay of those candi dates who are appointed against the reserved vacancies in the All India and Central Serv ices would be determined on the assumption that they entered service/post at the first opportunity they had after joining for pre Commission training.
The principles regarding fixation of pay and seniority laid down in this Ministry 's Office Memorandum No. F. 35/11/62 Ests.
(E) dated the 6th August, 1963 read with Office Memorandum of even number dated 15th February, 1965 (copy enclosed) will apply mutatis mutandis to determine the pay and seniority of ex Emergency Commissioned Officers/Short Service Regular Commissioned Officers appointed against the reserved vacan cies.
" Thus, although the impugned rules were not in existence in 1966, the executive instructions as contained in the Office Memorandum conferred the same benefit as conferred by the impugned rules.
In other words, it is apparent that the executive instructions have now been adopted as rules framed under the Act.
Even otherwise, the Released Emergency Com missioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1967, framed by the Presi dent of India under the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India, contained similar provisions as to the seniority and pay of ECOs and SSCOs.
Indeed, the provision of rule 6 relating to seniority of pay of ECOs and SSCOs is somewhat similar to paragraph 6 of the Office Memorandum.
The date of commencement of the said rules is significant to be noticed.
Under subrule (2) of rule 1, the said rules shall be deemed to have come into force with effect from January 29, 1966 which is the date of the said Office Memorandum.
It is, therefore, manifestly clear that the executive instructions, as contained in the Office Memorandum, have been 287 incorporated in the form of rules framed under proviso to Article 309 and clause (5) of Article 148 of the Constitu tion of India.
It is, however, submitted on behalf of the respondents that in view of the All India Services (Conditions of Serv ice Residuary Matters) Rules, 1960 (for short 'Residuary Rules '), the said rules framed under the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India will not apply to persons appointed to an All India Service.
The contention, in our opinion, is not correct, for clause (a) of rule 2 of the Residuary Rules provides that the Central Government may make regulations to regulate any matters relating to conditions of service of persons ap pointed to an All India Service for which there is no provi sion in the rules made or deemed to have been made under the Act and until such regulations are made such matters shall be regulated in the case of persons serving in connection with the affairs of the Union of India, by the rules, regu lations and orders applicable to officers of the Central Services Class I.
Admittedly, no rules under the Act were then framed in regard to the seniority of ECOs and SSCOs and/or granting them weightage for their past war service and, accordingly, the rules framed under the proviso to Article 309 and clause (5) of Article 148 of the Constitu tion of India applicable to Class I Officers of the Central Government were also applicable to ECOs and SSCOs relating to their seniority in the All India Services.
It is urged on behalf of the appellants that while the benefit of weightage is being conferred on the discharged ECOs and SSCOs way back from 1966, the writ petitions of the respondents should have been dismissed on the ground of inordinate delay and laches.
In support of this contention, some decisions have been cited by the appellants.
Similarly, the respondents have also placed reliance on some other decisions of this Court.
We do not think that after the writ petitions were entertained by the Calcutta High Court and by the Tribunal and disposed of on merits, it will be proper at this stage to dismiss the writ petitions on the ground of inordinate delay or laches.
At the same time, it should be borne in mind that when a particular rule conferring bene fits on a particular group of Government servants in recog nition of their past services in the army, has been in operation for over twenty years, this Court will be very slow to interfere with the rule and deprive such group of Government servants of the benefits so conferred on them.
This, however, does not mean that this Court will shut its eyes even though such rules are illegal and are violative of the provisions of Articles 14 and 16 of the Constitution.
He have, however, held that the impugned rules do not offend against or infringe the provi 288 sions of Articles 14 and 16 of the Constitution.
Now, we may consider the contention of Mr. Lalit, learned Counsel appearing on behalf of the respondents in the appeal arising out of S.L.P. (C) No. 10105, of 1988.
These respondents were in the State Forest Service before 1966 and, subsequently, absorbed in the Indian Forest Serv ice under the Central Government.
It is not disputed that unlike Indian Police Service, the Indian Forest Service was constituted much later in the year 1966.
It is also not disputed that the respondents were the first batch of incum bents or entrants in the Indian Forest Service.
It is sub mitted on.behalf of the respondents that the Indian Forest Service was constituted with the respondents as the initial recruits.
We may now refer to some of the provisions of Indian Forest Service (Recruitment) Rules, 1966, hereinafter re ferred to as 'IFS Recruitment Rules '.
Rule 3 of the IFS Recruitment Rules relates to the constitution of the Serv ice.
It provides as follows: "3.
Constitution of the Service.
The Service shall consist of the following persons, name ly: (a) Members of the State Forest Service recruited to the service at its ini tial constitution in accordance with the provisions of sub rule (1) of rule 4; and (b) Persons recruited to the service in accordance with the provisions of sub rules (2) to (4) of Rule 4." So, under rule 3, the Service consists of members of the State Forest Service recruited to the Service at its initial constitution and persons recruited in accordance with the provisions of sub rules (2) to (4) of rule 4.
The next relevant provision is rule 4.
Sub rules (1) and (2) of rule 4, which are relevant for our purpose, are extracted below: "4.
Method of recruitment to the Service. (1) As soon as may be after the commencement of these rules, the Central Government may re cruit to the Service any person from amongst the members of the State Forest Service ad judged suitable in accordance with such regu lations as the Central Government may make in consultation with the State Governments and the commission; 289 Provided that no member holding a post referred to in sub clause (ii) of clause (g) or rule 2 and so recruited shall, at the time of recruitment, be allocated to any State cadre other than the cadre of a Union Territo ry.
(2) After the recruitment under sub rule (1), subsequent recruitment to the Serv ice, shall be by the following methods, name ly; (a) by s competitive examination; (aa) by selection of persons from amongst the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962, but before the 10th January, 1968 and who are released in the manner specified in sub rule (1) of rule 7A; (b) by promotion of substantive members of the State Forest Service.
" It appears from sub rules (1) and (2) that there are four methods of recruitment.
The first method is as con tained in rule 4(1), that is, the initial recruits from the State Forest Service.
The other three methods of recruitment have been provided for in sub rule (2) including the re cruitment of ECOs and SSCOs who were commissioned during the period of emergency and released in the manner specified in sub rule (1) of rule 7A.
It is ', however, clear that the recruits under sub rule (2) including the ECOs and SSCOs are recruited after the initial recruits under rule 4(1).
Anoth er thing to be noticed is that the first examination for recruitment in the Indian Forest Service was held by the Union Public Service Commission in 1967.
It is strenuously urged by Mr. Lalit that as the re spondents were the initial recruit or, in other words, the Indian Forest Service having been constituted with them, no person recruited under rule 4(2) of the IFS Recruitment Rules can be given seniority over the respondents who are the initial recruits.
As the Indian Forest Service itself was constituted in 1966, there is no question of giving seniority to any recruits beyond 1966.
It is urged by the learned Counsel that the first 1967 after the constitution of their service, there is also no question of lost opportu nity so far as the ECOs and SSCOs are concerned.
It is submit 290 ted that if such examinations had started to be held from 1962, then it could be said that the ECOs and SSCOs had lost the opportunity of competing in such examinations in view of their joining the army.
Accordingly, it is submitted that so far as the Indian Forest Service is concerned, the consider ation for giving weightage to the ECOs and SSCOs on the basis of their past services in the army does not apply.
Attractive though the contentions are, we are unable to accept the same.
It is true that the respondents were the initial recruits when the Indian Forest Service was consti tuted in 1966 and that the other recruits including the ECOs and SSCOs entered the service after the respondents, but this fact has very little bearing on the question of fixing the year of allotment having regard to the past services of such recruits.
The respondents themselves were 'appointed to the Indian Forest Service in 1966, but they have been given the year of allotment as '1964 1/2 ', that is to say, long before the Service came into existence.
If it is possible in the case of the respondents, we fail to understand why it is not possible in the case of other recruits including the ECOs and SSCOs.
The grievance of the respondents is that the ECOs and SSCOs having been appointed subsequent to their appointment or, in other words, they having entered service after the respondents, they could not be given a year of allotment prior to that allotted to the respondents.
This contention is again misconceived.
So far as the respondents are concerned, the year of allotment has been granted to them on the basis of certain principles, as contained in rule 3 of IFS (Regulation of Seniority) Rules, 1968.
The ECOs and SSCOs are, however, governed by the impugned rules and their year of allotment has been fixed as '1964 ' which is prior to the year of allotment of the respondents and, accordingly, the ECOs and SSCOs are senior to the respond ents in the Indian ForeSt Service.
In the Indian Police Service also the year of allotment of the ECOs and SSCOs is prior to that of those respondents who are in that Service.
We do not think that any invidious discrimination has been made between the ECOs and SSCOs on the one hand and the respondents on the other, both in regard to Indian Forest Service and Indian Police Service, as contended on behalf of the respondents.
As soon as it is found that the ECOs and SSCOs have been classified into a distinct and separate class, and that such classification is reasonable, no objec tion can be taken to the year of allotment given to them in accordance with the impugned rules.
After giving our anxious consideration to the respective contentions of the parties and after considering the different rules and regulations and also the fact that the ECOs and SSCOs had 291 voluntarily offered their services for the defence of the country during the period of emergency, disagreeing with the High Court and the Tribunal, we are of the view that no illegality has been committed by the Government in framing the impugned rules with retrospective effect.
We hold that the impugned rules are quite legal and valid.
For the reasons aforesaid, the impugned judgments of the High Court and of the Tribunal are set aside and all these appeals are allowed.
There will, however, be no order as to costs in any of these appeals.
R.N .J.
Appeals allowed.
[/INST]A preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 was made on 26.7.1963.
The decla ration under Section 6 was duly notified on 16/18.1.1969.
A Writ Petition was filed in the High Court challenging the declaration.
The High Court took notice of the Land Acquisi tion (Amendment & Validation) Act, 1967, but held that the delay of 5 1/2 years from the date of the preliminary noti fication was unreasonable, and quashed the said declaration, relying on its own decision in Valji Mulji vs State, These appeals, by special leave, are against the High Court 's judgment.
Allowing the appeals, HELD: 1.
The validation provision came into force on 20th January, 1967.
The position is now concluded and the reliance placed by the High Court on its decision cannot be sustained.
[248E] Gujarat State Transport Corporation vs Valji Mulji Soneji & Ors., ; and State of Gujarat & Anr.
vs Punjabhai Mathubai & Ors., , followed.
The decision of the High Court is set aside and the declaration under section 6 of the Land Acquisition Act is sus tained.
[248F]
</s>
|
<s>[INST] Summarize the judgementAppeal No. 846 and 1343 of 1972.
Appeal by special leave from the judgment 'and order dated November 22, 1971 of the Delhi High Court in S.A.0.
No. 83 D of 1965 And Civil Appeal No. 1343 of 1973 Appeal by Special leave from the judgment and order dated November 22, 1971 of the Delhi High Court in SAO No. 239 D of 1965.
V.M. Tarkunde, section section Shukla and A. P. Gupta, for the appellant (in C. A. No. 846).
S.P. Pandey, Shiv Prakash Pandey and section section Shukla, for the ,appellant (in C. A. No. 1343).
D. N. Mukherjee, for respondent (in C. A. No. 846).
Bakshi Man Singh and Harbans Singh, for the respondent (in C.A. No. 1343).
456 Sardar Bahadur Saharya, Vishnu Bahadur Saharaya and Y. Khushalani, for the Intervener (in C.A. No. 846).
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
These two appeals by special leave are against the judgment of the High Court of Delhi allowing the ,appeals filed by the two respondents.
The respondents are landlords of two houses in the Karol Bagh area of Delhi.
The houses are built on lands given on long lease by the Delhi Improvement Trust to the rights, liabilities and assets ,of which the Delhi Development Authority has since succeeded.
Under the terms of the lease, subject to revision of rent, the lessees were to put up residential buildings on the leased lands.
,and the lessees undertook : "(vi) not to use the said land and buildings that may be erected thereon during the Said term for any other purpose than for the purpose of residential house without the consent in writing of the said lessor; provided that the lease shall become void if the land is used for any purpose than that for which the lease is granted not being a purpose subsequently approved by the lessor.
" The present landlords are not the original lessees but their successors in interest.
Portions of buildings have been leased for commercial purposes, a barber shop in C.A. 846 and a scooter repair shop in C.A. 1343.
The Delhi Development Authority appears to have given notice to them drawing their attention to the provision of the lease extracted above and that as they had permitted the buildings to he used for commercial purposes contrary to the terms of the lease deed, the lease was liable to be determined and called upon them to discontinue the use of the land for commercial purposes, failing which they were asked to show cause why their lease should not be determined 'and the land, together with the buildings thereon, reentered upon without any compensation to them.
Thereupon the landlords issued notice to the tenants asking them to stop the com mercial use of the buildings and later instituted the proceedings out of which these appeals arise.
In both these cases the buildings had been put to commercial use even before 1957 when the Delhi Development Authority Act of 1957 came into force.
The Controller dismissed the petitions filed by the landlords and the appeals filed by them were dismissed.
They thereupon filed appeals to the High Court.
A learned single Judge of the High Court taking a view contrary to two earlier decisions in 457 Smt.
Uma Kumari vs Jaswant Rai Chopra(1) and section P. Arora vs Ajit Singh (2 ) referred the question that arise in these appeals to a Division Bench which took a view contrary to that taken in the two earlier decisions above referred to, and decided in favour of the landlords.
The question that arises for decision in these cases is this : Are the landlords estopped or otherwise prohibited from getting possession of the property from the tenants because they themselves had let it out for commercial purposes.
We shall set out the relevant portion of the statutory provisions regarding this question.
Section 14 of the Delhi Rent Control Act 1958, which deals with the question of protection to tenants against eviction, in so far as it is relevant, is as follows : "14.
(1) Notwithstanding anything to the con trary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely (c) that the tenant has used the premises for a purpose other than that for which they were let (i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or (ii)if the premises have been let before the said date without obtaining his consent.
(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease, of the land on which the premises are situate.
" Sub section 11 of the same section, which is also relevant, reads " (11) No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub section (1), if the tenant, within such time as may be specified in this (1) P.L.R. (1960) 460.
(2) I.L.R. (1970) 11 Delhi 130.
458 .lm15 behalf by the Controller, complies with 'the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.
" Section 14 of the Delhi Development Act 1957 is as follows "14.
After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan : Provided that it shall be lawful to continue to use upon such terms and condition as may be prescribed by regulations made in this behalf any land or building for the purpose and to, the extent for and to which it is being used upon the date on which such plan comes into force." Before this Act was passed the United Provinces Town Improvement Act 1919 was in force in Delhi and the Delhi Improvement Trust was constituted thereunder.
It was this Trust which had leased the lands to the predecessors of the two landlords in the present appeals.
The Delhi Development Authority established under the Delhi Development Act 1957 succeeded to the asets, rights and liabilities of the Delhi Improvement Trust.
We shall deal first with the question that arises under the Delhi Rent Control Act.
Clause (k) of the proviso to sub section (1) of Section 14 provides that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on the ground that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate.
In this case the lease granted by the Delhi Improvement Trust, the predecessors in interest of the Delhi Development Authority, to the predecessors in interest of the landlords contains a condition that any building to be erected on the land shall not be used for any purpose other than residential purpose.
There is no dispute that part of each of the buildings is being used in a manner contrary to that condition.
The landlord has also given notice asking the tenant to cease using the building for that purpose.
The two earlier decisions referred to held that notwithstanding this provision the landlord was not entitled to get possession of the land because he himself had leased the building for a commercial purpose and was, therefore, estopped from 459 claiming possession.
The result will be this : The Delhi Development Authority can enforce the conditions of the lease and forfeit the leased land with the buildings thereon.
In that case both the landlord as well as the tenant stand to lose.
The landlords point but this situation and say that they are not interested in evicting the tenants but are interested only in seeing that the tenants do not use the buildings for commercial purpose with the consequences that they may have to lose the land and the buildings and the tenants also cannot any longer use it for a commercial purpose.
It has been argued on behalf of the tenants that this clause will apply only where the tenant has used the land after previous notice from the landlord, i.e., if the landlord had told him at the 'beginning of the tenancy that the building was not to be, used for commercial purpose and notwithstanding that the tenant used it for a commercial purpose.
They, therefore, contend that as in this case both the landlord and the tenant were aware of the use to which the ' building was to be put there is no question of any notice from the landlord asking the tenant not to use the building for commercial purpose and by merely issuing such notice the landlord cannot take advantage of clause (k).
This is really another way of putting the argument that the landlord having granted the lease for a commercial purpose is estopped from contending that the tenant should not use it for commercial purpose.
While the argument appears to be plausible we are of opinion that there is no substance in this argument.
If it is a case where the tenant has contrary to the terms of his tenancy used the building for a commercial purpose the landlord could take action under clause (c).
He need not depend upon clause (k) at all.
These two clausesare intended to meet different situations.
There was no need for anadditional provision in clause (k) to enable a landlord to get possession where the tenant has used the building for a commercial purpose contrary to the terms of (the tenancy.
An intention to put in an useless provision in a statute cannot be imputed to the Legislature.
Some meaning would have to be given to that provision.
The only situation in which it can take effect is where the lease is for a commercial purpose agreed upon by both the landlord and the tenant but that is contrary to the terms of the lease of the land in favour of the landlord.
That clause does not come into operation where there is no provision in the lease of the land in favour of the landlord, prohibiting its use for a commercial purpose.
The legislature has clearly taken note of the fact that enormous extents of land have been leased by the three authorities mentioned in that clause, and has expressed by means of this clause its anxiety to see that these lands are used for the purpose for which they were leased.
The policy of the legislature seems to be to put an 14 L79 6Sup C.I./73, 460 end to unauthorised use of the leased lands rather than merely to enable the authorities to get back possession of the leased lands.
This conclusion is further fortified by a reference to sub section 11 of section 14.
, The lease is not forfeited merely because the building put upon the leased land is put to an unauthorised use.
The tenant is given an opportunity to comply with the conditions imposed on the landlord by any of the authorities referred to in clause (k) of the proviso to sub section (1).
As long as the condition imposed is complied with there is no forfeiture.
It even enables the Controller to direct compensation to be paid to the authority for a breach of the conditions.
Of course, the Controller cannot award the payment of compensation to the authority except in the presence of the authority.
The authority may not be prepared to accept compensation but might insist upon cessation of the unauthorized use.
The sub section does not also say who is to pay the compensation, whether it is the landlord or the tenant.
Apparently in awarding compensation the Controller will have to apportion the responsibility for the breach between the lessor and the tenant.
The provision of clause (k) of the proviso to sub section (1) of section 14 is something which has to be given effect to whatever the original contract between the landlord and the tenant.
The leases were granted in 1940, and the buildings might have been put up even before the Delhi and Ajmer Rent Control Act 1952 came into force.
It was that Act that for the first time provided the kind of remedy which is found in clause (k).
The relevant provision in that Act enabled the landlord to get possession where the tenant whether before or after the commencement of the Act used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi improvement Trust while giving him a lease of the land on which the premises are situate notwithstanding previous notice.
The anxiety of the legislature is to prevent unauthorized user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture.
The Development Authority can always resort to the terms of the lease.
There is no estoppel here because both the landlord and the tenant know that the tenancy was not one permitted under the terms of the lease of the land.
In any case there can be no estoppel against the statute.
It would not benefit the tenant even it it is held that the landlord cannot, under the circumstances, evict him.
The landlord will lose Ms property and the tenant also will lose.
He cannot, after the Development Authority takes over the building use it for a commercial purpose.
We thus reach the conclusion that the leased in its inception was not void nor is the landlord estopped from claiming possession because he himself was a party to the breach of the conditions under which the land was leased to him.
461 Neither the clear words of the section, as in Waman Shriniwas Kini vs Rati Lal Bhagwandas(1), nor a consideration of the policy of the Act lead us to the conclusion that the lease was void in its inception if it was for an unauthorised user.
We are also of the opinion that the High Court was not justified in leaving to the Controller no option but to pass.
an order for eviction.
That would make the alternative provided in subsection (11) of section 14 useless.
The High Court is not correct in saying that since the Authority has no power to legalize the misuser of land contrary to the plans by acceptance of compensation under the Development Act, the Controller cannot order the payment of compensation by the tenant to the Delhi Development authority.
This is in effect nullifying part of the provisions contained in sub section (11) of section 14.
The High Court has arrived at its conclusion on the basis that section 14 of the Delhi Development Act applies to this Case.
We shall presently show that that section has no relevance to the decision of this case.
It is under the terms of the lease granted by the Delhi Improvement Trust that the use of this building for commercial purpose is prohibited and not under the Delhi Development Act.
"Furthermore, section 14 applies not only to lands leased by authorities like the Delhi Development Authority containing conditions against unauthorised user as well as to lands which do not belong to that category.
Its provisions are not intended to enforce the conditions in those leases.
The proviso to that section deals with the use to which a land or building may continue to be put after the coming into force of any plan subject to such terms and conditions as may be prescribed by regulations, provided that building or land had been used for that purpose prior to the coming into force of the plan.
The section does not therefore contemplate complete prohibition of the use of a land or building for purposes other than that permitted in the plan.
Such uses can be continued subject to the terms and conditions prescribed by the regulations provided it had been so used even before the plan.
It is admitted that no such regulations have been framed.
Therefore, if a plan had come into operation in this area, the previous use can be continued till the regulations are framed and after the regulations are framed, they will be subject to the terms and conditions of those regulations.
We are of opinion, therefore, that section 14 of the Development Act has no relevance in deciding the question at issue in his case.
" The appeals are allowed and the judgment of the High Court is set aside.
The matter will have to go back to the Controller for (1`) ; 462 deciding the question under sub section ( 1 1 ) of section 14 whether he should exercise the one or the other of the two alternatives mentioned therein.
As already mentioned, no order awarding compensation under the second alternative given in that sub section can be made except in the presence of the Delhi Development Authority.
In the circumstances of this case we direct the parties to bear their own costs.
G.C. Appeals allowed.
[/INST]On receipt of information the police searched the appellants house on May 14, 1968.
In the central room of that house there was an almirah of which the key was produced by the appellant and handed over to the Inspector of Police.
When the almirah was opened with the key it was found to contain a bag with live cartridges and a gun.
As no licence or permit for their possession was produced, the appellant was prosecuted and was convicted under Ss. 25(1)(a) and 27 of the and the appellant was sentenced to imprisonment for two years R.I.
His appeal to the High Court was dismissed summarily.
Special leave to appeal to this Court was granted and the accused was on bail pending disposal of the appeal.
HELD: (1) The High Court has the power to dismiss an appeal in limine where in its opinion there is no substance in the appeal.
But in cases where ,questions of fact or law, which are arguable and which are not unsubstantial, are ,raised, it is desirable that the High Court, while dismissing summarily, should indicate broadly the reasons which prevailed with it.
In such cases not only the reasons recorded by the High Court would be helpful to this Court in better understanding and appreciating the High Court 's 'line of approach but it would also serve to assure the accused that the arguable points in his appeal have been properly argued and duly considered by the High Court.
[64D F] Mushtak Hussain vs Bombay ; and Mushtaq Ahmed Hussain ,and Mukhtar Hussain Ali Hussain vs The State of Guj., Cr.
A. No. 9 of 1973 decided on 13 3 73 followed.
(2) However, it is undesirable and unnecessary in the larger interests of justice to send the present case back to the High Court for re decision.
The appellant was convicted in June 1969 and the High Court 's decision was shortly there after.
Undue delay in final disposal of criminal appeals tends to some extent to defeat the very purpose of criminal justice.
Speedy disposal of criminal cases for commission of offences promotes confidence of the society in the administration of criminal justice which is essential for sustaining the faith of the law abiding members of the society in the effectiveness of the rule of law.
It also saves the accused from avoidable harassment inherent in unreasonably prolonged trials and appeals.
[64F H; 65A B] (3) On the evidence on the record it is not possible to hold that the existence of the arms in the almirah was without the appellant 's knowledge and that his possession of the arms was unconscious.
Therefore, his conviction under section 25(1) (a) was justified.
[65E F] (4) There is no evidence in support of the conviction for the offence under section 27, and therefore, his conviction under that section cannot be sustained.
[65F G] (5) There is no evidence of any undesirable antecedents of the appellant, and the possession of the arms has not been shown to be inspired by any sinister purpose.
Since more than 4 years had elapsed since the date of the offence it would be in the ends of justice if the sentence of imprisonment was reduced to that already undergone and a sentence of fine is, imposed in addition.
[65H; 66A D]
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<s>[INST] Summarize the judgementivil Appeal No. 2488 of 1989 etc.
From the Judgment and Order dated 24.1.
1989 of the Bombay High Court in Appeal No. 67 of 1989.
G. Ramaswamy, Additional Solicitor General, A.M. Khan wilkar and A.S. Bhasme for the Appellant.
T.R. Andhrujina, R.F. Nariman, Mrs. K.K. Pradhan, R. Karanjawala, Mrs. Manik Karanjawala, H.S. Anand, P.B. Agar wal, P.G. Gokhale, R.B. Hathikhanawala, K.R. Nagaraja, R.S. Hegde, section Menon, M.C. Shah, Madan Lokur, Adur Sanjay Vasant, and Mrs. Urmila Sirur for the Respondents.
Mrs. Kitty Kumaramangalam, Kailash Vasdev, Ms. Vijaylax mi and S.P. Pandey for the Intervener.
The Judgment of the Court was delivered by DUTT, J.
Special leave is granted in all these matters.
Heard learned Counsel for the parties.
These appeals preferred by the State of Maharashtra involve the question as to the admission in the MBBS Course in the Medical Colleges in the State of Maharashtra.
In the city of Bombay, there are three Medical Colleges run by the Municipal Corporation of Greater Bombay.
Besides the said three Municipal Colleges, there is another College in Bom bay, namely, Grant Medical College, which is a Government College run by the Government of Maharashtra.
712 Shorn of all details, it may be stated that after pro viding for 15 per cent of seats under the All India Quota and the seats which are to be reserved under Article 15 of the Constitution of India, the Government of Maharashtra laid down a policy of reservation of 70 per cent of the remaining seats for the local students in the city of Bombay and 30 per cent of seats for the students outside Bombay within the State of Maharashtra.
Certain students feeling aggrieved by the said method of filling up of the seats in the MBBS Course in the said Medical Colleges in the city of Bombay moved writ petitions before the Bombay High Court.
A learned Single Judge of the High Court took the view that it was not proper on the part of the State Government to first of all fill up the 70 per cent of the seats out of the local Bombay students and thereafter the remaining 30 per cent of seats from amongst the students residing outside Bombay.
The learned Single Judge, however, gave no specific direction as to the admis sion of the writ petitioners, but left it to the State Government for the purpose.
The State of Maharashtra pre ferred a Letters Patent Appeal to the Division Bench of the High Court.
The said appeal was summarily dismissed by the Bench holding that the two points urged by the Assistant Government Pleader appear to be quite frivolous.
The writ petitioners also preferred Letters Patent Appeals before the Division Bench.
From time to time, the Bench passed some orders.
The only order which is relevant for the purpose of these appeals is dated February 8, 1989.
By that order, the Division Bench of the High Court directed creation of 5 additional seats in each of the three Municipal Colleges and 4 additional seats in the Government Medical College, that is, in all, 19 additional seats.
Certain directions were also given by the said order for admission of students in those additional seats and also the seats under the All India Quota.
It has been strenuously urged by Mr. G. Ramaswamy, learned Additional Solicitor General appearing on behalf of the State of Maharashtra, that the High Court was not justi fied in directing that the 30 per cent of seats meant for the candidates outside Bombay to be filled in before the 70 per cent of seats are filled in by local candidates.
It may be stated at this stage that by virtue of the judgment in the case of Nidamarti Maheshkumar vs State of Maharashtra and others; , relating to admission in Medi cal Colleges in Maharashtra, the State of Maharashtra laid down the policy of regional reservation of 70 per cent of seats for the region of Bombay and the remaining 30 per cent of seats for the candidates outside Bombay but within the State of Maharashtra.
It has already been noticed that the High Court 713 iS Of the view that the 30 per cent of seats should have been filled up first and, thereafter, 70 per cent of region al seats should have been filled up.
We have not been able to understand the reason for this view of the High Court.
If 30 per cent of seats are filled up first, the candidates who are residing outside Bombay will have to compete with the local Bombay students who are also eligible for admission in the said seats.
It may so happen that most of the seats meant for candidates outside Bombay may be filled up by the local Bombay candidates.
If, however, 70 per cent of seats are filled up first, the more meritorious Bombay students would be admitted and those, who would not be admitted, would obviously be candidates obtaining lesser marks and it will not be difficult for the outside candidates to compete with them for the said 30 per cent of seats.
The question whether 70 per cent of seats or 30 per cent of seats should be filled up first is a question which should be left to the discretion of the Government.
In our opinion, this aspect is not within the purview or the jurisdiction of the Court.
We do not find any unreasonableness or impropriety in the State Government 's decision to fill up 70 per cent of seats first.
The High Court was not, therefore, justified in directing admission on the basis of filling up 30 per cent of the seats first and, thereafter 70 per cent of seats and such direction has created some complications in the matter.
There is considerable force in the contention of Mr. Ramaswamy that the High Court was also not justified in directing creation of additional seats.
The additional seats can be created only if the Indian Medical Council approves of such creation.
In the instant case, the Indian Medical Council has vehemently opposed before us the creation of the additional seats.
There is also the question of bearing the cost of creation of additional seats.
The High Court, in our opinion, should not have directed the creation of additional seats.
In exceptional circumstances and for ends of justice, the Court may direct the creation of one or two seats after giving the Indian Medical Council an opportunity of being heard, but surely the Court should not direct the creation of so many additional seats when neither the Government nor the Indian Medical Council consents to such creation.
In the circumstances, it is difficult to sustain the impugned judgment of the High Court.
We are told by the learned Additional Solicitor General that 4 seats in the Grant Medical College in Bombay and 34 seats in the other Medical Colleges outside Bombay under the All India Quota are available for admission.
We are also told that there are about 30 candidates who are to be admit ted in these seats.
Of these 30 candidates, we find 714 that one Sandeep Chaudhary and Miss Chaudhary Seena, the applicants in Civil Miscellaneous Petitions Nos.
9049 of 1989 and 9050 of 1989 respectively, were already admitted in the 2 out of the 4 seats in the Grant Medical College, Bombay.
They were initially admitted in the Gwalior Medical College, but on their representation they were transferred to the Grant Medical College, Bombay, by the Director Gener al of Health Services in compliance with the guidelines laid down by this Court in its judgment in the case of Amanjit Singh Gill vs Directorate General of Health Services, ; , but in view of the impugned judgment of the High Court they have been thrown out for no fault of theirs.
The admission of these two candidates in the Grant Medical College, Bombay, is restored and will not be disturbed.
So far as the remaining 36 seats are concerned (2 seats in the Grant Medical College.
Bombay, and 34 seats in the Medical Colleges Outside Bombay), the admission to these seats shall be made strictly in order of merit.
The appellants shall complete the admissions in the said 36 seats within a week from today.
The impugned judgments of the High Court are set aside and the appeals are allowed to the extent indicated above.
There will be no order as to costs.
The writ petitions and all other applications for inter vention are also disposed of as above without any order as to costs.
P.S.S. Appeals allowed.
[/INST]The respondent tenant fell into arrears of rent for two months consecutively.
The rent was payable in advance.
He was served with a notice of demand, within seven days of which he sent a bank draft purporting to be the rent for the first month, and within a month another bank draft for the like amount.
The landlady neither encashed nor returned them.
After the notice period she filed an application for his ejectment.
The Rent Controller held that the tenant was not in default.
The Tribunal, however, found that when the notice of demand was served the arrears of rent for the two months had arisen, that the bank draft sent thereafter related to the rent for the first month only, that as the rent for the second month had also become due but had not been tendered, the landlady was justified in not accepting the tender, and that when the respondent again sent a draft for the second month the rent for the third month had also fallen due but was not tendered.
It thus took the view that the respondent had not tendered the arrears of rent due up to date within two months of the notice of demand, and held that the ground of non payment of rent stood established.
Allowing the appeal, the High Court took the view that section 14(1)(a) of the Delhi Rent Control Act, 1958 made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recov erable from him within two months of the date on which a notice of demand was served on him by the landlord, the arrears being the rent due on the date of the notice.
As in the instant case, the notice called for payment of the arrears due for the two months and the bank drafts were tendered within the period indicated in the notice, the notice was satisfied.
Dismissing the appeal by special leave, the Court, 745 HELD: The arrears of rent envisaged by section 14(1)(a) of the Delhi Rent Control Act are the arrears demanded by the notice for payment.
The arrears of rent due cannot be ex tended to rent which has fallen due after service of the notice.
[747DE] In the instant case, the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice.
The High Court was, therefore, right in the view taken by it.
[747DE] Jag Ram Nathu Ram vs Shri Surinder Kumar, S.A.O. No. 52 of 1975 and S.L. Kapur vs Dr. Mrs. P.D. Lal, All India Rent Control Journal, [1975] 322, overruled.
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<s>[INST] Summarize the judgementAppeal No. 476 of 1961.
Appeal by special leave from judgment and order dated January 5, 1955, of the Punjab High Court of (Circuit Bench) at Delhi in Civil Misc.
No. 71/D of 1954.
N. C. Chatterjee, Hardayal Hardy and N. N. Keswani, for the appellant.
R. section Narula, for the respondents Nos. 1 to 3. 1962.
April 18.
The Judgment of the Court was delivered by AYYANGAR, J.
This is an appeal by special leave against a judgment of a learned Single Judge of the Punjab High Court holding that section 7 A of the Delhi and Ajmer Rent Control Act, 1947 (hereinafter called the Act), was unconstitutional as violative of the fundamental right guaranteed by article 14 of the Constitution.
The first respondent Ram Nath owns a building in Delhi of which, among others, the appellant company was a tenant.
The appellant moved the Rent Controller.
Delhi, under section 7A of the Act for fixation of the fair rent of the portion in its occupation.
These proceedings have had a chequered history which it is not material to set out, but suffice it to say that the Rent Controller, 244 Delhi, computed the fair rent for the entire building at Rs. 565/ p. m. and the fair rent payable by the appellant at Rs. 146/ per month.
It is necessary to mention that under the Act the Rent Controller would have bad jurisdiction to entertain 'the appellant 's application for the fixation of fair rent and for so fixing it only if the construction of the building in question was completed after March 24, 1947, but if the construction of the building was completed earlier the ordinary Civil Courts and not the Rent Controller would have had jurisdiction to determine the matter.
The date of the completion of the first respondent 's building therefore loomed large in the enquiry before the Rent Controller and that authority recorded a finding on this matter adverse to the first respondent in his order.
The landlord first respondent preferred an appeal against the order of the Rent Controller to the learned District Judge, Delhi, but the appeal was dismissed.
Thereafter he moved the High Court of the Punjab under article 227 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal.
This petition came on for hearing before a learned Single Judge of the High Court.
A Division Bench of the High Court had sometime previously held in another batch of cases (British Medical Stores vs Bhagirath Mal) (1) arising under the Act, that section 7A was unconstitutional and void and following this decision he allowed the petition of the first respondent and set aside the order of the Rent Controller as without jurisdiction, without considering the other matters which would arise if the sect ion was valid and the Rent Controller had jurisdiction.
From this decision of the learned Single Judge, the appellant preferred an appeal under the Letters Patent to a Division Bench.
(1) [1955] 1.
L. R. 8 Punjab, 639.
245 Mean while the judgement in British Medical Stores vs Bhagirath Mat (1) was brought tip by way of appeal to this Court, and as the appeal was getting ready to be heard, the appellants applied for and obtained special leave to appeal to this Court even during the pendency in the High Court, of the appeal by it under the Letters Patent.
The Letters Patent appeal was thereafter withdrawn by the appellant.
The appeal in the British Medical Stores case (1) was heard by this Court and the same was allowed by a judgment dated August 2, 1961, and this Court held reversing the judgment of the Punjab High Court that section 7 A of the Act was valid It would thus be seen that the only point which the learned Judge considered and on which the revision petition of the landlord first respondent was allowed no longer subsists and hence the appellant is entitled to have the appeal allowed.
As the learned Single Judge did not consider the other objections raised by the first respondent to the order of the Controller fixing the standard fair rent payable by the appellant, the appeal has to be remanded to the High Court for being dealt with according to law.
Before concluding it is necessary to advert to a preliminary objection to the hearing of the appeal raised by learned Counsel for the landlord respondent.
His submission was that the special leave which was granted by this Court exparte should be revoked as having been improperly obtained.
The facts in relation thereto were these.
The judgment of the learned Single Judge to appeal from which the leave was granted was dated January 5, 1955, and the application to this Court seeking leave was (1) Punjab 639.
(2) See Roshan Lal Mehrau .Ishwar Dass [1962] 2 S.C.R.947.
246 made on January 5, 1959, i.e., after a lapse of four years.
It is obvious that it was an application which had been filed far beyond the period of limitation prescribed by the rules of this Court.
Learned Counsel for the respondent urged that there were no sufficient grounds for condoning that long.
delay and that we should therefore revoke the leave.
We are not disposed to accede to this request for revoking the leave in the peculiar circumstances of this case.
Learned Counsel invited our attention to a few decisions in which leave granted exparte was revoked at the stage of the hearing of the appeal on an objection raised by the respondent; but we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited.
In the first place, there was no by passing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave.
Next, there was no suppression of any fact which would have relevance to the granting or withholding of the leave, and the exact position as it stood at the time the petition was tiled was set out in it.
Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefor was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him.
In fact, the grant of special leave in the circumstances of this case, merely served to shorten the proceedings, and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc.
(1) were getting ready for bearing and there was some advantage if the appellant was in a position, to intervene in those other appeals.
In (1) Punjab 639.
247 view of these considerations we are of the opinion that this is not a case in which the leave should be revoked.
Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should be proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant 'of the leave.
Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the, same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier.
We would suggest that the rules of the Court should be amended suitably to achieve ' this purpose.
The result is that the appeal is allowed and the order of the learned Single Judge accepting the revision petition under article 227 preferred by the landlord first respondent is set aside.
The case is remanded to the High Court for considering the ' petition of the respondent in accordance with law and on the footing that section 7 A of the Rent Control Act is a valid piece of legislation.
It is admitted that the point as regards the constitutionality of section 7 A of the Rent Control Act was not raised by the landlord respondent, and in the circumstances of the case we direct the parties to bear their own costs in this Court.
The costs in the High Court will be as directed by that Court.
Appealed allowed.
To be reprinted.
[/INST]Against the judgment of the Single judge of the Punjab High Court dated January 5, 1953, in which he followed the decision of a Division Bench holding that section 7A of the Delhi and Ajmer Rent Control Act, 1947, was unconstitutional and void, the appellants preferred an appeal under the Letters Patent.
Meanwhile the judgment or the Division Bench was brought up by way of appeal to the Supreme Court, and as the appeal was getting ready to be heard, the appellants made an application on January 5, 1959, for special leave to appeal to the Supreme Court against the judgment of the Single judge.
No notice was given to the respondent to the application, and special leave was granted ex parte.
The Letters Patents appeal was thereafter withdrawn by the appellants.
When the appeal came on for hearing in due course, the respondent raised an objection to the hearing of the appeal on the grounds that the application for special leave was barred by limitation, that there were no sufficient reasons for condoning the long.
delay of four years, and that the special leave granted ex parte should be revoked.
243 Held, that, in the peculiar circumstances of the case, leave should not be revoked.
Expect in very rare cases, if not invariable, the Supreme Court should adopt as a settle rule that the delay in making an application for special leave should not condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave.
Desirability of the Rules of the Supreme Court being amended suitably pointed out.
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<s>[INST] Summarize the judgementAppeal No. 356 of 1965.
Appeal by special leave from the judgment and decree dated October 27, 1964, of the Madhya Pradesh High Court in Second Appeal No. 240 of 1964.
B. Sen and M. section Gupta, for the appellants.
section T. Desai and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by Sarkar, J.
The first respondent Tikam Das had let out a house in the city of Jabalpur to the second respondent Surya Kant Naidoo.
Sometime in 1961 Tikam Das, herein referred to as the landlord, served a notice on Surya Kant, herein referred to as the tenant, terminating the tenancy and later in the same year filed a suit in a civil court against the latter for ejectment.
On June 23, 1962, by consent of parties, a decree for ejectment was passed in that suit in favour of the landlord against the tenant.
The appellants who were occupying the premises as sub tenants under the tenant had not been made parties to the suit.
On June 25 and 26, 1962, the appellants served notices on the landlord under section 15(2) of the Madhya Pradesh Accommo dation Control Act, 1961 which had come into force on Decem ber 30, 1961, claiming that as the tenant had sub let the premises to them before the Act had come into force with the consent of the landlord, they had become his direct tenants under section 16(2) of the Act and on June 28, 1962, the appellants filed a suit against both the landlord and the tenant in a civil court claiming a declaration that they had in the circumstances become direct tenants of the premises under the landlord.
On June 30, 1962, the landlord sent a reply to the notices sent by the appellants in which he denied that the sub letting by the tenant had been with his consent or was lawful.
It does not appear that the landlord had put his decree in execution for evicting the appellants.
One of the points canvassed in the High Court was whether in view of section 45(1) of the Act a civil court was competent to entertain the appellants ' suit and it held that it was not and in that view of the matter dismissed the suit.
The question is whet her the High Court was right.
The Act established certain authorities called Rent Controlling Authorities and gave them power to decide various matters.
Sub 130 ,section (1) of section 45 states that "no civil court shall entertain any suit or proceeding in so far as it relates. to any. . matter which the Rent Controlling Authority is empowered by ,or under this Act to decide".
If, therefore, the suit related to a matter which a Rent Controlling Authority had jurisdiction to decide, the civil court would have no jurisdiction to entertain it.
Now the appellant 's suit was for a declaration that they had .become direct tenants under the landlord by virtue of section 16(2) of the Act.
That provision is in these terms section 16.
(1) (2) Where, before the commencement of this Act, the interest of a tenant in respect of any accommodation has been determined without determining the interest of any sub tenant to whom the accommodation either in whole or in part had been lawfully sub let, the subtenant shall, with effect from the date of the commencement of this Act be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.
Clearly the appellants would not be entitled to the benefit of this provision unless the sub letting to them was lawful.
This is where their difficulty arises.
Sub section (2) of section 15 deals with the case of a sub letting before the Act and provides for a notice of the sub letting being given to the landlord by the tenant and the sub tenant.
There is no dispute that the sub letting to the appellants was before the Act and they had given the notice.
The subletting, therefore, comes within sub section
(2) of section 15.
Then we come to sub section
(3) of section 15 which provides, "Where in any case mentioned in sub section (2), the landlord contests that the accommodation was not lawfully sub let and an application is made to the Rent Controlling Authority in this behalf, either by the landlord or by the sub tenant, within two months of the date of the receipt of the notice of sub letting by the landlord or the issue of the notice by the tenant or the sub tenant, as the case may be, the Rent Controlling Authority shall decide the dispute.
" This sub section empowers a Rent Controlling Authority to decide whether a sub letting was lawful where the landlord disputes that the subletting was lawful, on an application made to it by either party within the period mentioned.
When the Rent Controlling Authorities have the power to decide the lawfulness of the subletting, a civil court is plainly debarred from deciding that question by section 45(1).
In the present case the landlord did contend 131 that the sub letting was not lawful.
The appellants 's suit was filed within the period mentioned in sub section
(3) of section 15.
So the Rent Controlling Authorities had the power to decide the question on which the appellants ' suit depended.
It follows that the suit related to a matter which the Rent Controlling Authorities had power to decide and no civil court was, therefore, competent to entertain it.
Hence we think that the High Court was right in deciding that the suit had been filed in a court incompetent to entertain it, and in dismissing it.
It was said that a Rent Controlling Authority would have no power to decide a dispute as to whether a sub letting was lawful where the notice mentioned in section 15(2) had not been served, orafter the period mentioned in sub section
(3) of that section had expired if it had not been moved earlier.
Another question mooted was that the two months mentioned in sub section
(3) only provided a special period of limitation for the application mentioned in it and the provision of the period did not mean that a Rent Controlling Authority had power to decide the matter only if an application had been made within that period, so that if no such application had been made, after the expiry of the period a civil court would have jurisdiction to decide a dispute as to whether a sub letting was lawful.
The point is that the real effect of section 15(3) was to deprive the civil court of the jurisdiction to decide that dispute for all time.
We do not feel called upon to decide these questions.
They do not arise in the present case and it was not said that these questions affect the question of the competence of the civil court to try the present suit.
They clearly do not.
The suit was filed within the period of two months during which admittedly the Rent Controlling Authorities had jurisdiction to decide the dispute on which it was based.
Whatever may be the jurisdiction of a civil court on other facts, in the present case it clearly had no jurisdiction to entertain the appellants ' suit.
It was said on behalf of the appellants that section 15(3) had no application to the present case as the landlord had before the appellants ' suit was filed, obtained a decree against the tenant for eviction.
We are unable to accept this contention.
There is nothing in sub section
(3) of section 15 to indicate that it does not apply to a case where a landlord has obtained such a decree.
If in spite of the decree the appellants had a right under the Act to a direct tenancy under the landlord, they had a right to move the Rent Controlling Authority within the period mentioned (now expired) for a decision of the question that the sub letting to them 132 was lawful.
If the Rent Controlling Authority had the power to decide that question, a civil court would not be competent to decide the dispute in a suit brought within that period.
So the decree does not make a civil court, a court competent to entertain the suit.
It was also said that as the landlord had not applied under sub section
(3) of section 15 and this is not disputed by the landlord that provision is put out of the way and it must now be held that the appellants had become direct tenants under him.
The words of the sub section lend no support to this contention.
The appellants can claim the direct tenancy only when they establish that the sub letting to them was lawful.
As they claim that right, they must establish it and they do not do so by the failure of the landlord to move for a decision that the sub letting was not lawful.
This contention of the appellants seems to us to be untenable.
In any case it is difficult to appreciate how the failure of the landlord to apply under section 15(3) would affect the question of the competence of a civil court to entertain the appellants ' suit which had been filed before the time limited by the sub section for the landlord to apply to a Rent Controlling Authority had expired.
We now come to sub section
(2) of section 45 of the Act which is in these terms : S.45.
(1) (2)Nothing in sub section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any accommodation to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such accommodation.
It is said by the appellants that their suit raises a question of title to the tenanted premises within the meaning of that word as used in the subsection.
This contention does not seem to us to be well founded.
"Accommodation" has been defined in the Act as a building, garden, ground, out house, or garage appurtenant to it, its fixtures and furniture supplied for use there and also land not used for agricultural purpose.
The word, therefore, refers to property of certain varieties and in our opinion the words "title to any accommodation" in the sub section mean a right to or interest in property existing otherwise than under the Act and not those created by it.
It does not include a subtenant 's right created by the Act to be treated under certain cir 133.
cumstances as the direct tenant of the landlord.
This seems to, us to be clear from the whole scheme of the Act, which is to create certain rights and to leave them in certain cases to be decided by the Rent Controlling Authority established under it, quickly, inexpensively and summarily and with restricted rights of appeal from their decision.
The object of the Act as disclosed by its scheme would be defeated if civil courts were to adjudicate upon the rights which it was intended the Rent Controlling Authorities would decide, with all the consequent delay, expense and series of appeals.
Again if the civil courts had the power to decide such rights, section 15 (3) would be meaningless, for the decision of the dispute as to whether sub letting was lawful was necessary only for establishing a sub tenant 's right to a direct tenancy under the landlord under section 16 (2).
Sub section (2) of section 45 was clearly intended only to protect a right to resort to a civil court for the decision of a question as to an interest in property existing apart from the Act concerning which an adjudication may have been incidentally made by a Rent Controlling Authority in deciding a question which it had been expressly empowered by the Act to decide.
We, therefore, think that sub section
(2) of section 45 does not authorise a civil court to decide the dispute as to the lawfulness of the sub letting and does not therefore make it competent to entertain the appellants ' suit.
For these reasons, in our view, no civil court had jurisdiction to try the appellants ' suit and it was rightly dismissed as having been filed in an incompetent tribunal.
The result is that the appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]An election petition was filed by the appellant against the first respondent challenging his election on May 4, 1963 to the Madhya Pradesh Legislative Assembly.
A number of allegations including those of corrupt practice were made against the first respondent in the petition.
The affidavit filed in support of the allegations of corrupt practice as required by Rule 94A of the Conduct of Election Rules, 1961, was sworn by the petitioner before the Clerk of Court in the District Court of Jabalpur.
The first respondent in his objections before the Election Tribunal raised the question whether the affidavit under Rule 94A was sworn before a proper authority.
The Election Tribunal accepted the objection but allowed the appellant to file a second affidavit sworn before a proper authority.
The orders of the Tribunal were challenged by the first respondent before the High Court under article 226 and article 227 of the Constitution and the High Court, holding that the fresh affidavit could not be called and that there was no proper affidavit, quashed the orders of the Tribunal and directed the Tribunal to pass an order according to law.
The appellant appealed to this Court on certificate of fitness granted by the High Court.
Although the appellant had conceded before the High Court that his first affidavit was not proper he was allowed to withdraw his concession in this Court.
It was contended on behalf of the appellant that the clerk of Court before whom his first affidavit bad been sworn had been duly appointed ex officio Commissioner of Oaths under section 139(c) of the Code of Civil Procedure and an affidavit sworn before him complied with r. 94A.
The respondent however contended that a Commissioner of Oaths appointed under section 139(c) was for the purpose of affidavits under the Civil Procedure Code only, just as a Commissioner appointed under section 539 of the Criminal Procedure Code could swear affidavit under that Code only.
HELD : There is no analogy between an affidavit sworn under section 539 Cr. P. C. and the affidavit sworn here.
An affidavit sworn by a district Clerk of Court may not be good for the purpose of the Code of Criminal Procedure and vice versa but that is because the restriction is to be formed in section 139 of the one Code and section 539 of the other.
Rule 94A makes no such condition and makes receivable an affidavit before a Commissioner of Oaths without specifying of what kind.
In this view of the matter the affidavit sworn before the District Clerk of Court who undoubtedly was a Commissioner of Oath could only be excluded by taking an extreme and technical view which was not justified.
[484 B D]
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<s>[INST] Summarize the judgementAppeal No. 37 of 1952.
Appeal from the Judgment and Decree dated the 24th September, 1948, of the High Court of Judicature at Madras (Menon and Mack, JJ.) in A.A.O.No.
688 of. 1945 arising out of Judgment and Decree dated the 1st October 1945 of the Court of the ' District Judge of Anantapur in Original Petition No. 15 of 1945.
D. Munikanniah (J. B. Dadachandji" with him) for the appellant.
section P. Sinha(M. O. Chinnappa Reddi and K. B. Chowdhury withhim) for the respondents.
October 29.
The Judment of the Court was delivered by BHAGWATI J.
The plaintiff filed 0.
P. No. 15 of 1945 in the Court of the District Judge of Anantapur for setting aside an award the ground inter alia of legal misconduct of the arbitrator.
The trial Court set aside the award.
The High Court appeal reversed the judgment of the trial Court and dismissed the plaintiffs suit.
This appeal has been filed by the plaintiff with the certificate of the High Court against that decision.
One P.Narayanappa died in 1927 leaving him surviving the plaintiff his widow, the defendant I his undivided brother, the defendant 2 a son of his another pre deceased brother, and defedant 3 his son by his pre deceased wife. 'The deceased had purported to make a will dated 1st May, 1927 under which he had made certain provision for her maintenance , and residence, The plaintiff stayed with the family for 121 some time but had to leave the family house owing to disputes which arose between her and the senior wife of defendant 1.
She lived with her mother for eleven years and ultimately filed a suit in forma pauperis 0.
section No. 19 of 1943 in the Court of the District Judge of Anantapur, for maintenance, arrears of maintenance, residence and household utensils as also recovery of some jewels and clothes as her stridhanam properties.
The defendants contested the claim of the plaintiff contending that sufficient arrangement bad been made for her maintenance and residence under the will dated the 1st May, 1927, that she had accordingly been in possession and enjoyment of the property and that her claim was unsustainable.
The defendants also denied her claim for jewels and clothes.
The suit came for hearing and final disposal before the Subordinate Judge of Anantapur.
When the plaintiff was being examined as P.W. 1, in the suit the 27th February, 1945, all the parties filed a petition under section 21 of the Arbitration Act agreeing to appoint Sri Konakondla Rayalla Govindappa Garu as the 'sole arbitrator ' for settling the disputes in the suit and to abide by his decision, and asking the Court to send the plaint, written statement and other records to the arbitrator for his decision.
A reference to arbitration was accordingly made by the Court.
The arbitrator entered upon the reference and the 6th March, 1945, examined the plaintiff and got from her a statement which is Exhibit No. 4 in the record.
He similarly examined the defendant I the 10th March, 1945, and got from him the statement which is Exhibit No. 5 in the record.
After obtaining the two statements, the arbitrator made and published his award the 12th March, 1945.
It was this award that was challenged by the plaintiff.
The legal misconduct which was alleged against the arbitrator was that he examined each party in the absence of the other.
It was contended behalf of 122 the plaintiff that even though the petition for reference to arbitration as also the statements Exhibits Nos. 4 & 5 authorised the arbitrator to settle the disputes according to law after perusing the plaint and the written statements, the arbitrator examined defendant I in the absence of the plaintiff and also perused what was called the settlement of the 1st May, 1927, without giving an opportunity to the plaintiff to have her say in the matter and was thus guilty of legal misconduct.
It was contended the other hand by the defendants that what was done by the arbitrator was merely to obtain from the parties a reiteration of their request contained in the petition that he should give his award the basis of the pleadings, that not a single fact was recorded by the arbitrator from the defendant 1 which did not find a place in his written statement and that therefore the arbitrator was not guilty of legal misconduct.
The petition filed by the parties the 27th February, 1915,did not give any special powers to the arbitrator.
The arbitrator was appointed for settling the disputes in the suit and the parties agreed to abide by his decision.
The plaint, the written, statement and the other records were agreed to be sent to him for his decision, and if the arbitrator was thus directed to make his award after perusing the plaint and the written statements which were give to him by the Court along with the order, we do not see why the arbitrator went to the plaintiff and defendant 1 and recorded their statements.
The statement given by the plaintiff to the arbitrator did not mention anything beyond the request that be should peruse the plaint and written statement and give his decision according to law and justice.
The statement which was obtained from the defendant 1 however did not merely repeat this request but contained several statements of facts, which did not find a place in his written statement.
These statements were as follows: (1)"She felt glad with what was given to her by her husband.
" 123 (2)"It is seen from the Government accounts that as per the settlement made by her husband, the lands given to her have been in her possession." (3)"Just like the plaintiff has her jewels in her possession, the other females in the house have their jewels in their respective possession only.
The undivided family has no manner of right therein." and (4) "Considering the domestic circumstances our elder brother provided maintenance for the third wife, the plaintiff, just as he had provided maintenance for his second wife.
" These statements constituted evidence given by the defendant I in addition to the averments contained in his written statement and it is futile for the defendant 1 to contend that in obtaining the statement Exhibit No. 5 from him the arbitrator merely obtained from him a narration of what was already found in his written statement: This position is confirmed when one turns to the award.
The arbitrator stated that the Court had directed him to make the award after perusing the plaint and the written statements of the plaintiff and the defendants and that it had given him the plaint and the written statements along with the order.
He however proceeded to state that in pursuance of the order he took statements from the plaintiff as well as the defendant I who was the manager of the defendant 's family.
He further stated that he bad perused the settlement which the defendant 1 alleged as having been made Ist May, 1927, in favour of the plaintiff and proceeded to award to the plaintiff 8 acres 17 cents of land bearing Survey No. 507 in addition to the 40 acres of land already given by the deceased to her.
It is clear from the terms of this award that the arbitrator took into consideration not only the plaint and the written statements of the parties but also the statement which he had obtained from the defendant I and the will dated 1st May, 1927.
There is thus no doubt that the arbitrator heard the defendant 1 in the absence of the, plaintiff.
No 124 notice of this hearing was given by the arbitrator to the plaintiff nor had she an opportunity of having the evidence of the defendant I taken in her presence so that she could suggest cross examination or herself cross examine the defendant I and also be able to find evidence, if she could, that would meet and answer the evidence given by the defendant 1.
As was, observed by Lord Langdale M. R. in Harvey vs Shelton(1), "It is so ordinary a principle in the administration of justice, that no party to a cause can be allowed to use any means whatsoever to influence the mind of the Judge, which means are not known to and capable of being met and resisted by the, other party, that it is impossible, for a moment, not to see, that this was an extremely indiscreet mode of proceeding, to say the very least of it.
, It is contrary to every principle to allow of such a thing, and I Wholly deny the difference which is alleged to exist between mercantile arbitrations and legal arbitrations.
The first principles of justice must be equally applied in every case.
Except in the few cases where exceptions are unavoidable, both sides must be heard and each in the presence of the other.
In every case in which matters are litigated, you must attend to the representations made both sides, and you must not, in the administration of justice, in whatever form, whether in the regularly constituted Courts or in arbitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct and the decisions of the Judge, which means are not known to the other side.
This case of Harvey vs Shelton(1) is the leading case this point and it has been followed not only in England but in India.
(See Ganesh Narayan Singh vs Malida Koer(2).
She had also no opportunity to have her say in the matter of the settlement of the 1st May, 1927.
The course of proceeding adopted by the arbitrator was obviously contrary to the principles of ,natural justice.
(i) ; at P. 462.
(2) (1911) 13 c.
L. J. 399 at pages 401, 402, 125 Shri section P. Sinha however urged before us that no prejudice was caused to the plaintiff by reason of the arbitrator having obtained the statement Exhibit No. 5 from defendant 1 and that therefore the arbitrator was not guilty of legal misconduct.
This contention is unsound.
The arbitrator may be a most respectable man; but even so, his conduct cannot be reconciled to general principles.
"A Judge must not take upon himself to say, whether evidence improperly admitted had or had not an effect upon his mind The award may have done perfect justice: but upon general principles it cannot be supported.
" Per Lord Eldon, Lord Chancellor, in Walker vs Frobisher(1).
To the same effect are the observations of Lord Justice Knight Bruce in Haigh vs Haigh(1): "It is true that he states in his affidavit that he did not allow those explanations to influence him in his report upon the accounts, and I have no doubt he honestly intended this to be the case; but it is impossible to gauge the influence which such statements have upon the mind.
We must hold, without meaning the least reflection the arbitrator, that he was guilty of legal misconduct and that was sufficient to vitiate the award.
Shri section P. Sinha then urged that the plaintiff had waived her right if any to challenge the award the ground of legal misconduct.
No waiver however was pleaded by the defendant I and it was not competent to him to urge this contention at this stage before us.
The result therefore is that the judgment of the High Court cannot stand.
Agent for the respondents M. section K. Aiyangar, (i) (18o1) at page 72.
[/INST]In a civil suit the respondent obtained a decree against his employer the appellant company for a sum which included com pensation for wrongful termination of his service, arrears of salary, interest and costs of the suit, and then applied for execution of the decree.
The Income tax Officer served a notice upon the respondent under section 46 of the Indian Income tax Act and applied to the District Judge that the appellant be permitted to deduct at source the income tax, surcharge and super tax on the sum awarded to the respondent and pay the same in the Government Treasury.
The appellant company also moved the executing court for a declaration that they were entitled and bound to deduct the tax due on the amount.
The District judge directed the appellant company to pay the income tax and super tax to the Income Tax Department and pay the balance in Court together with a receipt for the income tax paid.
In appeal the High Court reversed the order of the District judge and directed the execution of the decree as claimed by the respondent.
On appeal by the appellant company, Held, that as no tax was assessed against the respondent the Income Tax Officer could not issue a notice under section 46(5) requiring the appellant company to deduct tax from the decretal amount.
A substantial part of the decretal amount did not represent salary" of the respondent: it consisted of compensation for wrongful termination of the respondent 's service, salary in lieu of six months ' notice, interest and costs of the suit.
It was a judgment debt and no provision for payment of income tax was made in the decree which was liable to be executed as prayed by the respondent.
The appellant company was not therefore entitled or bound to deduct income tax under section 18 sub section
(2) of the Act.
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<s>[INST] Summarize the judgementCivil Appeal No. 5(NT) of 1975.
From the Judgment and Order dated 15.9.
1971 of the Allahabad High Court in Civil Misc.
Writ Petition No. 5324 of 1970.
Prithvi Raj, Mrs. Rekha Joshi and Ashok K. Srivastava for the Appellants.
Manoj Swarup, 'Ms. Lalita Kohli and Pramod Swarup for the Respondent.
The Judgment of the Court was delivered by 759 SABYASACHI MUKHARJI, J.
The question involved in this appeal is whether the respondent herein M/s. Kasturi Lal Hat Lal is liable to the State of Uttar Pradesh for payment of the Central Sales Tax in respect of the transactions of sale of coal.
The Sales Tax Officer in this case passed an order making the respondent liable for the payment of tax on certain transactions during the period from 1st October, 1965 to 31st March, 1966 amounting to Rs.9,08,548.81 and tax liability was imposed at the rate of 2% thereof amounting to Rs. 18,170 98.
The Sales Tax Officer found that the assessee carried on business in coal.
The Sales Tax Officer noted that the Bilties, concerning this kind of sale of coal had been prepared in the name of the dealer.
The dealer endorsed these Bilties (R.Rs) and gave these to the diverse parties in U.P.
The parties in U.P. on receiving these Bilties got the goods released.
The dealer admitted that the Bilties (R.Rs.) having been endorsed to the parties in U.P. were given to them at the time, while the goods were in the state of movement between Bihar and U.P. The bills connected with Bilties (R.Rs.) of this kind had also been prepared by the dealer and the money had been realised by the dealer from the purchasing parties.
The Sales Tax Officer was of the view that the sale of coal effected in that manner came under interstate sale and as such was liable under section 3(b) of the , by transfer of document when the goods were in movement.
It was the case of the dealer that the goods had been sold to an unregistered dealer and he too was not a registered dealer for the year 1965 66.
Therefore, there was no question of imposition of any Sales Tax.
The Sales Tax Officer did not agree with this view and imposed liability for the said Rs. 18 170 98.
Challenging the said imposition an application was moved before the High Court under Article 226 of the Constitution by the dealer.
The application was allowed and the order of assessment was set aside.
The High Court having considered the facts and circum stances of this case noted that the main contention raised on behalf of the assessee was that inasmuch as the movement of the goods had started from the State of Bihar, the tax if any, payable on such sales, was assessable in Bihar and the Sales Tax Officer, Lucknow had no jurisdiction to make the order of assessment.
The High Court in the light of Section 9(1) of the was of the view that the "appropriate State" would be the Sales Tax Officer in Bihar and as such the imposition was not possible in the manner it was done.
The assessee succeeded before the High Court on this ground.
The question for determination is whether that is so? 760 The High Court noted that in the previous case of Karam Chand Thapar and Bros. (Coal Sales) Ltd. vs The Sales Tax Officer, Moradabad and others, (Civil Miscellaneous Writ No. 4356 of 1969) the High Court had taken the same view on more or less identical facts on 24th of July, 1970.
We were told at the Bar that in the said matter leave had been granted under Article 136 of the Constitution by this Court.
We wanted to know whether the matter had been disposed of by this Court and if so what was the fate of the same and had adjourned this appeal on this account.
Neither the assessee nor the revenue has been able to enlighten us on this point.
Under the (hereinafter called 'the Act '), Section 2(a) stipulates that the "appro priate State" means (i) in relation to a dealer who has one or more places of business situate in the same State, that State; (ii) in relation to a dealer who has places of busi ness situate in different States, every such State with respect to the place or places of business situate within its territory.
On the other hand clause (b) of section 2 defines "dealer" to mean any person who carries on (whether regularly or otherwise) the business of buying and selling, in the manner indicated in sub clause (b).
It is not con fined to a registered dealer only.
Section 3 is the charging section and is in Chapter II dealing with the formulation of principles for determining when a sale or purchase of goods takes place in the course of interState trade or commerce or outside a State or in the course of import or export.
Sec tion 3 stipulates that a sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or purchase (a) occasions the movement of goods from one State to another, or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another.
There are two explana tions to that section and explanation 1 provides that where goods are delivered to a carrier or other bailee for trans mission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee.
Explanation 2 enjoins that if the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.
Section 6 deals with the liability to tax on inter State sales.
Section 6(1) provides that subject to the other provisions contained in the Act, every dealer is liable to pay tax under the Act on all sales effected by him in the course of inter State trade or com merce during any year on and from the date so notified.
Sub section (1A) of section 761 6 provides that a dealer shall be liable to pay tax under the Act on sale of any goods effected by him in the course of inter State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State.
Subsection (2) of section 6 stipulates that notwithstanding anything contained in sub section (1) or sub section (1A), where a sale of any goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by transfer of documents of title to such goods to the Government or to a registered dealer other than the Government, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under the Act.
Sub section (2) of section 6 provides that no such subsequent sale shall be exempt from tax under that sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time or within such further time as that authority may, for sufficient cause, permit, (a) a certificate duly filled and signed by the registered dealer from whom the goods were purchased containing the prescribed particulars in the prescribed form obtained from the pre scribed authority; and (b) if the subsequent sale is made (i) to a registered dealer, a declaration referred to in clause (a) of sub section (4) of section 8, or (ii) to the Government, not being a registered dealer, a certificate referred to in clause (b) of sub section (4) of section 8.
Sub section (1) and sub section (2) of section 9 of the Act are material for our present purpose and read as follows: "9(1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or commerce, whether such sales fail within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of subsection (2), in the State from which the movement of the goods commenced; (2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of 762 India, assess, re assess, collect and enforce payment of taX, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liabil ity of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third par ties, appeals, reviews, revisions, references, compounding of offences and treatment of documents furnished by a dealer as confiden tial, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub section.
" It is clear from the analysis of the scheme of the Act that the Central Government imposes tax and it is by the Central Government the tax is imposed for inter State sale but it is collected by the Government in accordance with the provisions of sub section (2) of section 9 of the Act in the State.
It will be clear from sub section (2) of section 9 that the "appropriate State" imposes and collects the tax on behalf of the Government of India.
The question is which is the "appropriate State" in a transaction of the nature or the type with which we are concerned Where tax on inter State sale was sought to be imposed.
In order to be a sale or inter State transaction the sale must occasion the move ment of goods.
Here in the instant case, it appears that there were Railway receipts which were endorsed in favour of the parties in U.P.
It is by that endorsement that title was transferred to the purchases and that transaction occasioned the movement of the goods, in other words, caused inter State sales to take place, namely, the sale which occasions the movement of goods from one State to another from the State of Bihar to the State of U.P. Counsel for the revenue sought to urge at one point of time that as the railway receipts were endorsed in U.P. in favour of different 763 parties such a sale would not be an inter State sale that would have occasioned the movement of goods.
If that is the position here which counsel for the revenue sought to urge then a tax on such sales as an internal sale might have been levied under the U.P. Sales Tax Act.
But that would not be the case of sale on a transaction which occasions the move ment.
For this purpose section 9 provides for the collection and levy by the "appropriate Government".
The "appropriate Government" means in relation to a dealer who has one or more places of business situate in the same State, that State or in relation to a dealer who has places of business situate in different States, every such State with respect to the place or places of business situate within its tern tory.
It is not the position in the instant case.
It was contended on behalf of the revenue that in the State of Uttar Pradesh, the concerned Sales Tax Officer was fully competent to make the assessment.
The High Court was of the view that this argument proceeded on an omission to consider the opening words of section 2 which is the definition clause, and which makes the definitions given thereunder subject to the context.
Sub section (1) of section 9 confers jurisdiction to make the levy and collection of the tax on the State where the movement of the goods commences, and so the determinative test for discovering the jurisdiction of a particular State, in an inter State sale, is the place where the movement of the goods commences.
The words "appropriate Government" given in sub section (3) of that section must necessarily refer to the State which by section 9(1) has been conferred jurisdiction to levy and collect the tax.
The provisions must be harmonised.
It was next contended that the case of the respondent fell within the ambit of the proviso to Section 9(1).
We have.noted that the provisions of the proviso can apply only if the sale is by a registered dealer.
Here the admitted position is that the dealer is not a registered one.
It was urged on behalf of the revenue that inasmuch as section 7 of the Act required every dealer to obtain registration within the prescribed period and in the event of not obtaining such a registration, penal conse quences ensue under section 10 of the Act, the words "regis tered dealer" as used in the proviso to section 9 do not refer necessarily to a dealer who has obtained registration under section 7, but to a dealer who should have obtained such a registration.
In other words, counsel tried to import the equitable maxim by stating an argument in the manner that if registration in the facts of a particular case was compulsory then such registration should be deemed to have been made as by law enjoined that it should have been made.
Equity, it was said the maxim long time ago "looks upon a thing as done which ought to have been done.
" But that is not the position in a fiscal statute.
The fiscal statute with which we are concerned recognised registration and 764 non registration and imposes liabilities on registration and consequences for non registration.
It is not, therefore, possible to look upon a thing as done which ought to have been done for which Legislature has separately featured differently in a fiscal statute of this nature.
The Act provides machinery provisions for the imposition and reali sation of the Central Sales Tax.
It must be read in a com monsense point of view.
It is clear here that registration of dealer is impor tant because the proviso states that in the case of sale of goods during their movement from one State to another, the sale subsequent to first sale in respect of the same goods being also a sale which fell under sub section (2) of sec tion 6, the tax shall be levied and collected on a subse quent sale which had been effected by a transfer of docu ments of title to such goods by a registered dealer in the State from which the registered dealer obtained or as the case may be could have obtained the form prescribed in clause (a) of sub section (4) of section 8 of the Act in connection with purchase of such goods.
Sub section (2) of section 6 provides that where a sale of goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subse quent sale during such movement effected by a transfer of documents of title to such goods to the Government or to a registered dealer other than the government, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under this Act.
The proviso stipulates that no such subsequent sale shall be exempt from tax under this sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time, a certificate as mentioned therein.
In this case, the subse quent sale if there be any in U.P. did not occasion the movement of the goods.
It is therefore, not subject to inter State sales tax.
In that view of the matter we are of the opinion that the Sales Tax Officer in U.P. was not the appropriate au thority either to impose or collect the duty on inter State sale.
The High Court was right in the view it took.
This appeal must therefore, be dismissed with costs.
H.L.C. Appeal dis missed.
[/INST]Section 3 of the stipulates that a sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or purchase(a) occasions the movement of goods from one State to another, or (b) is effected by a transfer of docu ments of title to the goods during their movement from one State to another.
Sub section
(1) of section 9 provides that the tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or com merce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of sub section (2), in the State I from which the movement of the goods commenced and sub section
(2) thereof provides that the authorities for the time being empowered to assess, re assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of India,assess, re assess, collect and enforce payment of tax, including any , etc.
The respondent, a dealer in coal, had effected certain transactions by endorsing Bilties (Railway Receipts made out in its name to various parties in Uttar Pradesh while the goods relating to the Bilties were in a state of movement from Bihar to Uttar Pradesh.
The bills connected with such Bilties had also been prepared by the respondent which had realised the money from the purchasing parties.
The Sales Tax Officer, Lucknow was of the view that the sale of coal effected in this manner came under inter State sale and as such was liable under section 3(b) of the .
Disagreeing with the contention of the respondent that the goods having been sold to an unregistered dealer, the respondent too being not a registered dealer during the particular year.
there was no question of imposition of any sales tax, the Sales Tax 757 Officer imposed the liability under that provision which was challenged by the respondent by a writ petition.
The High Court, allowing the petition, set aside the order of assess ment.
Dismissing the appeal, HELD: The Sales Tax Officer in Uttar Pradesh was not the appropriate authority either to impose or collect the duty on inter State sale.
[764G] (i) Sub s.(1) of section 9 confers jurisdiction to make the levy and collect the tax on the State where the movement of the goods commences, and so the determinative test for discovering the jurisdiction of a particular State, in an inter State sale, is the place where the movement of the goods commences.
The words "appropriate Government" given in sub section
(2) of that section must necessarily refer to the State which by section 9(1) has been conferred jurisdiction to levy and collect the tax.
[763D E] (ii) It is clear from an analysis of the scheme of the that it is the Central Govern ment which imposes tax on inter State sale but it is col lected by the Government in accordance with the provisions of sub section
(2) of section 9 of the Act in the State.
It is clear from sub section
(2) of section 9 that the "appropriate State" imposes and collects the tax on behalf of the Government of India.
In order to be a sale or inter State transaction the sale must occasion the movement of goods.
In the instant case, there were Railway receipts which were endorsed in favour of the parties in U.P.
It is by that endorsement that title was transferred to the purchasers and that transaction occa sioned the movement of the goods, in other words, caused inter State sales to take place, namely, the sale which occasions the movement of goods from one State to another, from the State of Bihar to the State of U.P. [762E G] (iii) The proviso to section 9(1) can apply only if the sale is by a registered dealer.
Here the admitted position is that the dealer is not a registered one.
It was urged on behalf of the revenue that inasmuch as section 7 required every dealer to obtain registration within the prescribed period and in the event of not obtaining such a registration, penal consequences ensue under section 10, the words "registered deal er" as used in the proviso to section 9 do not refer necessarily to a dealer who has obtained registration under section 7, but to a dealer who should have obtained such a registration.
In other words, counsel tried to import the equitable maxim by stating an argument in the manner that if registra 758 tion in the facts of a particular case was compulsory then such registration should be deemed to have been made as by law enjoined that it should have been made.
Equity, it was said, "looks upon a thing as done which ought to have been done".
But that is not the position in a fiscal statute.
The fiscal statute with which we are concerned recognises regis tration and non registration and imposes liabilities on registration and consequences for non registration.
It is not, therefore, possible to look upon a thing as done which ought to have been done for which Legislature has separately featured differently in a fiscal statute of this nature.
The Act provides machinery provisions for the imposition and realisation of the Central Sales Tax.
It must be read in a commonsense point of view.
[763E H; 764A B] (iv) Sub section
(2) of section 6 provides that where a sale of goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effect ed by a transfer of documents of title to such goods to the Government or to a registered dealer other than the govern ment, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under this Act.
The proviso stipulates that no such subsequent sale shall be exempt from tax under this sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time, a certificate as mentioned therein.
In this case, the subsequent sale if there be any in U.P. did not occasion the movement of the goods.
It is therefore, not subject to inter State sales tax.
[764D F]
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<s>[INST] Summarize the judgementCivil Appeal No. 2752 of 1972.
Appeal by Certificate from the Judgment and Order dated the 5th November, 1970 of the Punjab and Haryana High Court in Income Tax Reference No. 38 of 1969.
G. A. Shah & Miss A. Subhashini for the appellant.
Naunit Lal & Mr. Kailash Yasudev for respondent.
The Judgment of the Court was delivered by PATHAK, J.
Is a smuggler, who is taxed on his income from smuggling under the Income Tax Act, 1922, entitled to a deduction under Section 10(1) of the Act on account of the confiscation of currency notes employed in the smuggling activity? The respondent, Piara Singh, was apprehended in September, 1958 by the Indian Police while crossing the Indo Pakistan border into Pakistan.
A sum of Rs. 65,500/ in currency notes was recovered from his person.
On interrogation he stated that he was taking the currency notes to Pakistan to enable him to purchase gold in that country with a view to smuggling it into India.
The Collector of Central Excise and Land Customs ordered the confiscation of the currency notes.
The Income Tax Officer now took proceedings under the Indian Income Tax Act, 1922 for assessing the assessee 's income and determining his tax liability.
He came to the finding that out of Rs. 65,500/ an amount of Rs. 60,500/ constituted the income of the assessee from undisclosed sources.
An appeal by the assessee was dismissed by the Appellate Assistant Commissioner.
In second appeal before the Income Tax Appellate Tribunal the assessee represented that if he was regarded as engaged in the business of smuggling gold he was entitled to a deduction under Section 10(1) of the Income Tax Act of the entire sum of Rs. 65,500/ as a loss incurred in the business on the confiscation of the currency notes.
The Appellate Tribunal upheld the 1124 claim to deduction.
It proceeded on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them for gold in Pakistan which was later smuggled into India.
At the instance of the Revenue, a reference was made to the High Court of Punjab and Haryana on the following question: "Whether on the facts and in the circumstances of the case the loss of Rs. 65,500/ arising from the confiscation of the currency notes was an allowable deduction under section 10(1) of the Income tax Act, 1922?" The High Court answered the question in the affirmative.
And now this appeal by the Revenue.
In our Judgment, the High Court is right.
The Income Tax authorities found that the assessee was carrying on the business of smuggling They held that he was, therefore, liable to income tax on income from that business.
On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed.
The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit.
The currency notes were necessary for acquiring the gold.
The carriage of currency notes across the border was an essential part of the smuggling operation.
If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Custom authorities and the consequent confiscation of the currency notes.
It is an incident as predictable in the course of carrying on the activity as any other feature of it.
Having regard to the nature of the activity possible detection by the Customs authorities constitutes a normal feature integrated into all that is implied and involved in it.
The confiscation of the currency notes is a loss occasioned in pursuing the business, it is a loss in much the same way as if the currency notes had been stolen or dropped on the way while carrying on the business.
It is a loss which springs directly from the carrying on of the business and is incidental to it.
Applying the principle laid down by this Court in Badridas Daga vs Commissioner of Income tax the deduction must be allowed.
In Commissioner of Income tax, Gujarat vs S.C. Kothari this Court held that for the purpose of Section 10(1) of the Income Tax Act, 1922 a loss incurred in carrying on an illegal business must be 1125 deducted before the true figure of profits brought to tax can be computed.
Grover, J., speaking for the Court, observed: If the business is illegal, neither the profits earned nor the losses incurred would be enforceable in law.
But, that does not take the profits out of the taxing statute.
Similarly, the taint of illegality of the business cannot detract from the losses being taken into account for computation of the amount which can be subjected to tax as "profits" under Section 10(1) of the Act of 1922.
The tax collector cannot be heard to say that he will bring the gross receipts to tax.
He can only tax profits of a trade or business.
That cannot be done without deducting the losses and the legitimate expenses of the business.
" Reliance was placed by the Revenue on Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income tax, Bombay City II.
In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India.
The import of dates by steamer was prohibited.
Nonetheless he imported dates from Iraq by steamer, and the consignments were confiscated by the customs authorities.
But the dates were released subsequently on payment of fine.
The assessee 's claim to deduction under section 10(2) (xv) of the Income Tax Act was rejected on the ground that the amount was paid by way of penalty for a breach of the law.
An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held to fall on the assessee in some character other than that of a trader.
Reference was made by the Revenue to Soni Hinduji Kushalji & Co. vs Commissioner of Income tax, A.P.
The assessee 's claim to the deduction of the value of gold confiscated by the customs authorities was found unsustainable by the court.
The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country.
Our attention has also been invited to J. section Parkar vs V. B. Palekar and Others where on a difference of opinion between two learned Judges of the Bombay High Court a third learned Judge agreed with the view that the value of gold confiscated by the customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source.
It was observed that the loss arose by reason of an infraction 1126 of the law and as it had not fallen on the assessee as a trader or business man a deduction could not be allowed.
Apparently, the true significance of the distinction between an infraction of the law committed in the carrying on of a lawful business and an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case.
We hold that the assessee is entitled to the deduction of Rs. 65,500/ , and accordingly we affirm the view taken by the High Court on the question of law referred to it.
The appeal fails and is dismissed with costs.
S.R. Appeal dismissed.
[/INST]A Sub Inspector of Police arrested the respondent for offences under sections 4 and 5 of the Bombay Prevention of Gambling Act on a warrant issued under section 6 of the Act by the Deputy Superintendent of Police.
The respondent 's application for release on bail was rejected by the Sub Inspector on the ground that a circular order issued by the District Superintendent of Police prohibited him from releasing on bail persons that were arrested in respect of offences under sections 4 and S of the Act.
He, however, produced the respondent before a Magistrate.
D The High Court in the writ petition filed by the respondent upheld his contention that offences under sections 4 and S of the Act being cognizable and bailable, the Commissioner of Police and officers to whom a warrant can be granted for the purpose of investigation under the Act, have to release the accused on bail under the provisions of section 496 of the Code of Criminal Procedure 1898 since the impugned order ran counter to the statutory provisions it was bad in law.
The High Court also held that since under section 6 of the Act the Police Commissioner and certain other officers mentioned therein have the power and authority to arrest persons accused of having committed offences under sections 4 and S of the Act without warrant, the offences are cognizable.
Dismissing the appeal, ^ HELD: (a) Since the Commissioner of Police, who is competent to direct by issuing special warrant or general order under section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned, the offences under sections 4 and S of the Act are cognizable.
Such offences are admittedly bailable.
[400 F G] (b) The Commissioner of Police or the Police officer who is authorised by him to search, arrest and investigate such offences, is under a legal obligation to release the accused on bail under the provisions of section 496 of the Code.
The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting from the statute and consequently no executive instructions or administrative rules can abridge or run counter to the statutory provisions of the Code.
Since the impugned order of executive instructions are contrary to or inconsistent with the provisions of the Code and 392 on a true construction, there is nothing in section 6 or any other provision of the Act which takes away the right and power conferred by the Code on the police officer to grant bail to the person arrested by him for offences under sections 4 and 5 of the Act the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court.
[400 G H] Union of India vs I. C. Lala etc., A.I.R. 1973 S.C. 2204=[1973] 3 SCR 818, 824 applied.
(a) Under Section 6(1) of the Act (subject to the conditions of the proviso) a Commissioner of Police may empower by a general order or authorise by special warrant a police officer not below the rank of a sub Inspector to do any of the acts and things enumerated in sub clauses (a) to (d) of that subsection, including the act of arresting a person found gambling or present in a common gaming house.
It follows therefrom, by necessary implication, that the Commissioner of Police can personally do any of the aforesaid acts and things which he could authorise any other police officer of the requisite rank to do.
The primary repository of the plenary power to do tho aforesaid acts and things, constituted under sub clause (i) is the Commissioner of Police.
The sub clause only enable him to employ his subordinate police officers not below the authorised rank of Sub Inspector to execute his general order or special warrant to arrest for offences under sections 4 and 5 of the Act.
In short section 6 confers the power of arrest thereunder only on a specified class of police officers and not on any or every police officer.
[396D F & G] (b) It is settled law that the expression "Police officer" used in the definition of cognizable offence in section 4(1)(f) of the Code of Criminal Procedure does not necessarily mean "any and every" police officer.
An offence will still be a cognizable offence within this definition even if the power to arrest without warrant for that offence is given by the statute to police officers of a particular rank or class only.
[398 C] Queen Empress vs Deodhar Singh ILR , 150 approved.
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<s>[INST] Summarize the judgementil Appeal No. 724 of 1976.
Appeal by Special Leave from the, Judgment and Order dated 13th Dec. 1974 of the Calcutta High Court in Appeal from Original Order No. 240 of 1973.
AND Civil Appeals.
2488 2497 (NT) 1972 (From the Judgment and Order dated the 31st March, 1970 of the Andhra Pradesh High Court in Writ Petitions Nos.3005, 3006, 3085, 3086, 3088, 3090, 4232, 4243 and 4244 of 1969.
Sachin Chowdhary, B. Sen, section section Bose, K. K. Chakraborty, A. G. Manzes, J. B. Dadachanji and k. J. John for the Appellant in C.A. 724/76.
L. N. Sinha, D. N. Mukherjee, G. section Chatterjee and A. K. Ganguli for respondents 1 to 4 in C.A. 724/76.
B. Kanta Rao for the Appellants in C.As 2488 97 of 1972.
Soli J. Sorabjee, Addl.(In 2488 97) 72, P. Parameshwara Rao A. K. Ganguli and T. V. section Narasimhachari for the Respondents in CAs.2488 97/72.
A. Subba Rao for the Intervener.
The following Judgment were delivered BEG, C.J.
I am in general agreement with my learned brother Chandrachud who has discussed all the authorities so admirably and comprehensively.
I, however, would like to add a few observations stating the general conclusion, as I see it, emerging from an application of general principles and accumulation of case law on the subject of what may be called "statutory" or "compulsory" sales.
Are they sales at all so as to be exigible to sales tax or purchase tax under the relevant statutory provisions ?
The term 'sale? is defined as follows in Eenjamin on Sale (Eighth Edn.) : "To constitute a valid sale there must be a concurrences of the following elements, namely : (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised.
" It is true that a considerable part of the field over which what are called 'sales ' take place under either 'regulatory orders or levy orders passed or directions given under statutory provisions is restricted and controlled by these orders and directions.
If, what is called a "sale" 438 is, in substance, mere obedience to a specific order, in which the so called "price" is only a compensation for the compulsory passing of property in goods to which an order relates, at an amount fixed by the authority making the order, the individual transaction may not be a ,,sale" although the compensation is determined on some generally fixed principle and called "price".
This was, for example, the position in New India Sugar Mills vs Commissioner of Sales Tax, Bihar(1).
That was a case of a delivery according to an order given by the Govt. which could amount to a compulsory levy by an executive order although there was no legislative "levy order" involved in that case.
On the other hand,, in Commissioner, Sales Tax, U.P. vs Ram Bilas Ram Gopal,(2) the order under consideration was actually called a levy order, but the case was distinguishable from New India Sugar Mills vs Commissioner of Sales Tax, Bihar (supra) on facts.
It was held in the case of Ram Bilas (supra) that the core of what is required for a "sale" was not destroyed by the so called "levy" order which was legislative.
It is true that passages from the judgement of Pathak, J., in the case of Ram Bilas Ram Gopal (supra) were cited and specifically disapproved by a Bench of this Court in Chittar Mal Narain vs Commissioner of Sales Tax(3).
But, perhaps the view of this Court in Chittar Mal Narain, Das (supra) goes too far in this respect.
It is not really the nomenclature of the order involved, but the substance of the transaction under consideration which matters in such cases.
In the first typo of case mentioned above the substance of the concept of a sale, as found under our Law, itself disappears because the transaction is nothing more than the execution of an order.
Deprivation of property for a compensation, which may even be described as "price", does not amount to, a sale when all that is done is to, carry out an order so that the transaction is substantially a compulsory acquisition.
On the other hand, a merely regulatory law, even if it circumscribes the area of free choice, does not take away the basic character or core of sale from the transaction.
Such a law, which governs a class, may oblige sellers to deal only with parties holding licences who may buy particular or allotted quantities of goods at specified prices, but an essential element of choice is still left to the parties between whom agreements take place.
The agreement, despite considerable compulsive elements regulating or restricting the area of free choice, may still retain the basic character of a transaction of sale.
This was the position in Indian Steel and Wire Products Ltd. vs State of Madras(4).Andhra Sugar Ltd. vs State of Andhra Pradesh(5) and State of Rajasthan vs Karam Chand Thapar(6): There might be borderline cases in which it may be difficult to draw the line.
(1) ; : [1963] (Supp) 2 SCR 459.
(2) AIR 1970 All 518.
(3) [1971] 1 S.C.R. 671.
(4) ; (5) ; (6) A.I.R. 1969 S.C. 343.
439 In the former type of case, the binding character of the, transaction arises from the order directed to particular parties asking them to deliver specified goods and not from a general order or law applicable to a class.
In the latter type of cases, the legal tie (vinculum juris) which binds the parties to perform their obligations remains contractual.
The regulatory law merely adds other obligations, such as the one to enter into such a tie between the parties indicated there.
Although the regulatory law might specify the terms, such as price, or parties, the regulation is subsidiary to the essential character of the transaction which is consensual and contractual.
The basis of a contract is : "consensus adem".
The parties to the contract must agree upon the same thing in the 'same sense.
Agreement on mutuality of consideration, ordinarily arising from an offer and acceptance, imparts to it enforceability in Courts of law.
Mere regulation or restriction of the field of choice does not take away the contractual or essentially consensual binding core or character of the transaction.
I may be forgiven for citing a passage from my judgment in Commissioner of State Tax vs Ram Bilas Ram Gopal,(supra) to indicate the setting of such transactions "It appears to me to be necessary to distinguish between a restriction in the area of choice of parties and the transaction itself in order to, determine the true character of the transaction.
Limitation of the field of choice is a necessary concomitant of a controlled or mixed economy which ours is.
Absolute freedom of contract or unregulated operation of the laws of supply and demand, which an apotheosis of the lais sez faire doctrine demanded, led really to a shrinking of the area of freedom in the economic sphere, producing gross inequalities in bargaining powers and recurrent crises.
Therefore, a regulated or a socialistic economy seeks to regulate the play of forces operating on the economic arena so that economic freedom of all concerned, including employers and employees, is preserved and so that the interests of consumers are also not sacrificed by any exploitation of conditions in which there is scarcity of goods,.
I think that the regulation or restriction of the area of choice, cannot be held to take away the legal character of the transactions which take place within the legally restricted field.
It is too late in the day, when so much of the nation 's social and economic activities are guided and governed by control orders, allotment orders, and statutory contracts, to contend that mere State regulation of the economic sphere of life results in the destruction of the nature of the transactions which take place within that sphere." (P. 524) In Roman Law the contract of sale was classed as a "consensual" contract.
The consent could, no doubt, be express or implied.
I find that Hidayatullah J., in his very learned dissenting judgment in New India Sugar Mills Case (supra), where some Roman Law is referred to, thought that even in a case of a 'specific order directing delivery of 440 goods there could be an implied consent so as to constitute a safe.
I find it, with great respect, difficult to go so far as that.
What could be implied, upon the facts of a particular case, must still be a consent to a proposal if the transaction is to be construed as a "sale".
Mere compliance with an order may imply an acceptance of an order but acceptance of a proposal to purchase or sell are of a juristically different genus.
It is, however, not necessary for us, in this case, to accept the correctness of the minority view of Hidayatullah, J. in New India Sugar Mills case (supra).
The transactions before us are sales on an application of the ratio decidendi of Indian Steel and Wire Products Ltd 's case (supra) and other cases decided on similar grounds.
The difficulty arises from the fact that, although the ingredients of a "sale," as defined in Benjamin 's treatise on "Sale? ', may seem to be satisfied even if delivery of goods is in obedience to "an order to deliver them for a consideration, fixed or to be fixed if we stretch mutual assent to cover assent resulting from orders given, yet, it is difficult to see how such a transaction would be based on a contractual tie.
According to Sec.4(3) of our , a sale results only from a contract which presupposes a minimal area of freedom of choice where the ordinary mechanism of proposal and acceptance operates.
For the reasons indicated above, while I agree with the answer given by my learned brother Chandrachud to the question before us and also practically with all the views expressed by my learned brother, yet, I hesitate to hold that the majority opinion expressed by Shah J., in New India Sugar Mills case (supra), is erroneous.
I think the case is distinguishable.
Ibis, however, makes no difference to the common conclusion reached by us on the facts of the cases before us.
These appeals have been placed for hearing before a seven Judge Bench in order to set at rest, to the extent foreseeable, the controversy whether what is conveniently, though somewhat loosely, called a 'compulsory sale? is exigible to sales tax.
When essential goods are in short supply, various types of Orders are issued under the with a view to making the goods available to the consumer at a fair price.
Such Orders sometimes provide that a person in need of an essential commodity like cement, cotton, coal or iron and steel must apply to the prescribed authority for a permit for obtaining the commodity.
Those wanting to engage in the business of supplying the commodity are also required to possess a dealer 's licence.
The permit holder can obtain the supply of goods, to the extent of the quantity specified in the permit, from the named dealer only and at a controlled price.
The dealer who is asked to supply the stated quantity of goods at the particular permit holder has no option but to supply the stated quantity of goods at the controlled price.
The question for our consideration not easy to decide, is whether such a transaction amounts to a sale in the language of the law.
We will refer to the facts of civil appeal 724 of 1976, in which a company called M/s Vishnu Agencies (Pvt.) Ltd., is the appellant.
It carries on business as an agent and distributor of cement in the 441 State of West Bengal and is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941, referred to hereinafter as the Bengal Sales Tax Act.
Cement being a controlled commodity, its distribution is regulated by the West Bengal Cement Control Act, 26 of 1948, referred to hereinafter as the Cement Control Act, and by the Orders made under section 3 (2) of that Act.
Section (3) (1) of the Cement Control Act provides, inter alia, for regulation of production, supply and distribution of cement for ensuring equitable supply and distribution thereof at a fair price.
By the Cement Control Order, 1948 framed under the Cement Control Act, no sale, or purchase of cement can be made, except in accordance with the conditions contained in the written order issued by the Director of Consumer Goods, West Bengal or the Regional Honorary Adviser to the Government of India at Calcutta or by officers authorised by them, at prices not exceeding the notified price.
The appellant is a licensed stockist of cement and is permitted to stock cement in its godown, to be supplied to persons in whose favour allotment orders are issued, at the price stipulated and in accordance with the conditions of permit issued by the authorities concerned.
The authorities designated under the Cement Control Order issue permits under which a specified quantity of cement is allotted to a named permit holder, to be delivered by a named dealer at the price mentioned in the permit.
A permit is generally valid for 15 days and as soon as the price of cement allotted in favour of an allottee is deposited with the dealer, he is bound to deliver to the former the specified quantity of cement at the specified price.
A specimen order issued in favour of an allottee, under which the appellant had to supply 10 metric tons of cement at Rs. 144.58 per M.T., exclusive of sales tax, reads thus "LICENCE FOR CEMENT The quantities of cement detailed below are hereby allotted to M/s. Marble & Cement products Co. Pvt. Ltd., 2, Braboume Road, Calcutta 1 to be supplied by M/s. Vishnu Agencies Pvt. Ltd., 3, Chittaranjan Avenue, Calcutta 13, on conditions detailed below.
The price of material involved must be deposited with the Stockist within 15 days and the actual delivery must be taken within 15 days from the date of issue of the permit.
The licence is issued only for the purpose of Mfg. of Mosaic Tiles at 188, Netaji Subhas Road, Calcutta 40.
Under no circumstances will the validity of the permit be extended beyond the period of 15 days from the date of its issue.
Cement Total Tonnge Country Cement at Rs. 144.58 Ton Cwt.per M.T. exclusive of section T. 10 M/T (Ten M/T only)" 442 The appellant supplied cement to various allottees from time to time in pursuance of the allotment orders issued by appropriate authorities and in accordance with the terms of the licence obtained by it for dealing in cement.
The appellant was assessed to sales tax by the first respondent, the Commercial Tax Officer,, Sealdah Charge, in respect of these transactions.
It paid the tax but discovered on perusal of the decision of this Court in New India Sugar Mills Ltd. vs Commissioner of Sales Tax(1) that the transactions were not exigible to sales tax.
Pleading that the payment was made under a mistake of law, it filed appeals against the orders of assessment passed by respondent 1.
It contended in appeals before the Assistant Commissioner of Commercial Taxes that by virtue of the provisions of the Cement Control Act and the Cement Control Order, no volition or bargaining power was left to it and since there was no element of mutual consent aggreement between it and the allottees, the transactions were not sales within the meaning of the Sales Tax Act.
The appellant further contended that if the transactions were treated as sales, the definition of "sale" in the Sales Tax Act was ultra vires the legislative competency of the Provincial Legislature under the Government of India Act, 1935 and of the State Legislature under the Constitution.
The appellate authority rejected the first contention and upheld the assessments.
It did not, as it could not, go into the second contention regarding legislative competence.
The appellant adopted the statutory remedies open to it but since the arrears, of tax were mounting up and had already exceeded a sum of rupees eight lacs, it filed a writ petition in the Calcutta High Court praying that the various assessment orders referred to in the petition be quashed and a writ of prohibition be issued directing the sales tax authorities to refrain from making any further assessments for the purpose of sales tax on the transactions between the appellant and the allottees.
A learned single Judge of the High Court allowed the writ petition and issued a writ of mandamus restraining the respondents from imposing sales tax on the transactions.
between the appellant and the allottees.
That judgment having been set aside in appeal by a Division Bench of the High Court by its judgment dated December 13, 1974, the appellant has filed appeal No. 724 of 1976 by special leave.
Civil appeals No. 2488 to 2497 of 1972 raise a similar question under the Andhra Pradesh Paddy Procurement (Levy) Orders, under which paddy growers in the State are under an obligation to sell the paddy to licensed agents appointed by the State Government at the prices fixed by it.
The High Court of Andhra Pradesh by its judgment dated March 31, 1970 has taken the, same view as the Calcutta High Court, namely, that the transactions amount to sales and are taxable under the Sales Tax Act.
Counsel appearing in the Andhra Pradesh appeals agree that the decision in the Calcutta case will govern those appeals also.
(1) [1963] Supp. 2 S.C.R. 459.
443 Since the crux of the appellant 's contention is that the measures adopted to control the supply of cement leave no consensual option to the parties to bargain, it is necessary first to notice the relevant provisions of law bearing on the matter.
The West Bengal Cement Control Act, 26 of 1948, was enacted in order to "confer powers to control the production, supply and distribution of, and trade and com merce in, cement in West Bengal."
Section 3(1) of the Act empowers the Provincial Government to provide, by order in the Official Gazette, for regulating the supply and distribution of cement and trade and commerce therein.
Section 3(2) provides by clauses (b) to (o) that an order made under sub section (1) may provide for regulating or controlling the prices at which cement may be purchased or sold and for prescribing the conditions of sale thereof, regulating by licences, permits or otherwise, the storage, transport, movement, possession, distribution, disposal, acquisition, use of consumption of cement; prohibiting the withholding from sale of cement ordinarily kept for sale; and for requiring any person holding stock of cement to sell the whole or specified part of the stock at such prices and to such persons or classes of persons or in such circumstances, as may be specified in the order.
If any person contravenes an order made under section 3, he is punishable under section 6 with imprisonment for a term which may extend to three years or with fine or with both, and, if the order so provides, any Court, trying such con tranvention, may direct that a property in respect of which the Court is satisfied that the order been contravened shall be forfeited to the Government.
In exercise of the powers erred by section 3(1) read with clauses (b) to (h) of section (2) of the Act, an Order which may conveniently be called the Cement Control Order was promulgated by the Governor on August 18, 1948.
The relevant clauses of that Order contain the following provisions.
By paragraph 1, no person shall after the commencement of the order sell or store for sale any cement unless he holds a licence and except in accordance with the conditions specified in such licence obtained from the Director of Consumer Goods, West Bengal, or any officer authorised by him in writing in this behalf.
By paragraph 2, no person shall dispose of or agree to dispose of any cement except in accordance with the conditions contained in a written order of the Director of Consumer Goods, West Bengal or the authorities specified in the paragraph.
By paragraph 3, no person shall acquire or agree to acquire any cement from any person except in accordance with the conditions contained in a written order of the Director of Consumer Goods, West Bengal, or the authorities specified in the paragraph.
By paragraph 4, no person shall sell cement at a "higher than notified price".
By Paragraph 8, no person or stockist who has any stock of cement in his possession and to whom a written order has been issued under paragraph 2 shall refuse to sell the same, "at a price not exceeding the notified price", 'and the seller shall deliver the cement to the buyer "within a reasonable time after the payment of price".
By paragraph 8A, every stockist or every person employed by him shall, if so re 3 1146 SCI/77 444 quested by the person acquiring cement from him under a written order issued under paragraph 3, weigh the cement in his presence or in the presence of his authorised representative at the time of delivery.
We are not concerned with the amendments made by the Govern ment of West Bengal to the, Cement Control Order on December 30, 1965 by which, inter alia paragraphs 2, 3, 4, 8 and 8A of that Order were deleted.
The,appeal from the decision of the Calcutta High Court is limited to the transactions between the appellant and the allottees from the years 1957 to 1960.
As regards the batch of appeals from Andhra Pradesh, the levy of tax was challenged by three sets of persons, the procuring agents, the rice millers and the retailers with the difference that the procuring agents were assessed to purchase tax, while the others to sales tax under the Andhra Pradesh General Sales Tax Act, 1957.
By virtue of the provisions of the, Andhra Pradesh Paddy Procurement (Levy) Orders, the paddy growers can sell their paddy to licensed procuring age nts appointed by the State Government only and at the prices fixed by the Government.
The agriculturist has the choice to select his own procuring agent but he cannot sell paddy to a private purchaser.
The procuring agents in their turn have to supply paddy to the rice millers at controlled prices.
The millers, after converting paddy into rice, have to declare their stocks to the Civil Supplies Department.
Pursuant to the Orders issued by the Department, the rice millers have to supply a requisite quantity of rice to the wholesale or retail dealers at prices fixed by the Department.
Orders for such supply by the millers are passed by the authorities under the A.P. Procurement (Levy) and Restriction on Sale Order, 1967.
Under this Order, every miller carrying on rice milling operations is required to sell to the agent or officer duly authorised by, the Government the minimum quantities fixed by the Government at the notified price; and no miller or other person who gets his paddy milled in any price mill can move or otherwise dispose of the, rice recovered by milling at such rice mill except in accordance with the, directions of the Collector.
A breach of these provisions is liable to be punished under section 7 of the and the goods are liable to be forfeited under section 6A of that Act.
The A.P. sales tax authorities levied purchase tax on the purchase of paddy made by the procuring agents from the agriculturists and they levied sales tax on the transactions relating to the sup of rice by the millers to the wholesale and retail dealers and on the supply made, by the retailers to their customers.
The case as regards the sales tax imposed on the transactions between the retail dealers and the consumers stood on an altogether different footing, but the writ petitions filed by the procuring agents and rice millers raised questions similar to those involved in the writ petition filed in the Calcutta High Court.
These then are the provisions of the respective Orders passed by the Governments of West Bengal and Andhra Pradesh.
445 We may now notice the provisions of the Sales Tax Acts.
Section 2(g) of the Bengal Finance (Sales Tax) Act, 6 of 1941, defines a sale" to mean "any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of ,property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge.
" Section 2 (1) provides that the word "turnover" used in relation to any period means "the aggregate of the sale prices or parts of sale prices receivable, or if a dealer so elects, actually received by the dealer. .
By clause (h) of section 2, "sale price" is defined to mean the amount payable to a dealer as valuable consideration for "the sale of any goods".
By section 4(1), every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded the taxable quantum is liable to pay tax under the Act on all "sales" effected after the date notified by the State Government.
Section 2(n) of the Andhra Pradesh General Sales Tax Act 1957 defines a "sale" as "every transfer of the property in goods by one person to another in the course of trade or commerce, for cash, or for deferred payment or for any other valuable consideration.
Section 5 of that Act is the charging section.
According to these definitions of 'sale ' in the West Bengal and Andhra Pradesh Sales Tax Act, transactions between the appellants on one hand and the allottees or nominees on the other are patently ,sales because indisputably, in one case the property in cement and in the other, property in paddy and rice was transferred for cash consideration by the appellants; and in so far as the West Bengal case is concerned, property in the goods did not pass to the transferees by way of mortgage, hypothecation, charge or pledge.
But that is over simplification.
To counteract what appears on the surface plain enough, learned counsel for the appellants have advanced a two fold contention.
They contend, in the first place, ' that the word 'sale ' in the Sales Tax Acts passed by the Provincial or State legislatures must receive the same meaning as in the ; or else, the definition of sale in these Sales 'Tax Acts will be beyond the legislative competence of the Provincial and ' State legislatures.
Secondly, the appellants contend that since under the , there can be no sale without a contract of sale and since the parties in these matters had no volition of their own but were compelled by law to supply and receive the goods at prices fixed under the Control Orders by the prescribed authorities, the transactions between them are not sales properly so palled and therefore are not exigible to sales tax.
For examining the validity of the first contention, it is necessary to turn to the appropriate entries in the legislative lists of the Constitution Acts, for the contention is founded on the premise that the word sale ' which occurs in those entries must receive the same meaning as in the since the expression "sale of goods" was, at the time when the Government of India Act was enacted, a term of well recognised legal import in the general law relating to sale 446 of goods and in the legislative practice relating to that topic both in England and in India.
Entry 48 in the Provincial List, List II of Schedule VII to the Government of India Act, 1935 relates to; "Taxes on the sale of goods.
" Entry 54 of List II, of the Seventh Schedule to the Constitution reads to say: "Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of the Union List but we may refer to it in order to complete the picture.
It refers to: "Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course, of inter State trade or commerce."
The contention of the appellants that the expression 'sale of goods ' in entry 48 in the Provincial List of the, Act of 1935 and in entry 54 in the State List of the constitution must receive the same meaning as in the is repelled on behalf of the State Governments with the argument that constitutional provisions which confer legislative powers must receive a broad and liberal construction and therefore the expression 'sale of goods ' in entry 48 and its successor, entry 54, should not be construed in the narrow sense in which that expression is used in the but in a broad sense.
The principle that in interpreting a constituent or organic statute, that construction most beneficial to the widest possible amplitude of its powers must be adopted has been examined over the years by various courts, including this Court, and is too firmly established to merit reconsideration.
Some of the leading cases on this point are the Privy Council decisions in British Coal Corporation vs king(1), Edwards vs A. G. for Canada(2) and James vs Commonwealth of Australia("); the Australian decisions in Morgan vs Deputy Federal Commissioner of Land Tax, N.S.W.(4) and Broken Hill South Ltd. vs Commissioner of Taxation (N.S.W.) (5) ; the Federal Court decisions in In re the Central Provinces and Berar Act No. XIV of 1938(6) and United Provinces vs Atiqa Begum;(7) and the decisions of this Court in Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City(8) and The State of Madras vs Gannon Dunkerley & Co. (Madras), Ltd. (9)
These decisions have taken the view that a constitution must not be construed in a narrow and pedantic sense, that a board and liberal spirit should inspire those whose duty it is to interpret it, that a Constitution of a Government is a living and organic thing which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat, that the legislature in selecting subjects of taxation is entitled to take things as it finds them in remum natura and that it is not proper that a Court should deny to such a legislature the right of solving taxation problems unfettered by a priori legal categories which often derive from the exercise of legislative power in the same constitutional unit.
(1) (6) (2) ; (7) (3) (8) (4) [1912] 15 C.L.R.661.
(9) [1959].S.C.R. 379.
(5) 447 On a careful examination of various decisions bearing on the point this Court speaking through Venkatarama Aiyar J. in Gannon Dunkerley (supra) upheld the contention of the State of Madras that the words "sale of goods" in Entry 48 which occur in the Constitution Act and confer legislative powers on the State Legislature in respect of a topic relating to taxation must be interpreted not in a restricted but broad sense.
But as observed by the learned Judge in that case, this conclusion opens up questions as to what that sense is, whether popular or legal, and what its connotation is, either in the one sense or ' the other.
After considering text book definitions contained in Blackstone, Benjamin on Sale, Halsbury 's Laws of England, Chalmer 's , Corpus Juris, Williston on Sales and the Concise Oxford Dictionary, the Court held that the expression 'sale of goods ' in Entry 48 cannot be construed in its popular sense and that it must be interpreted in its legal sense.
Whereas in popular parlance a sale is said to take place when the bargain is settled between the parties though property in the goods may not pass at that stage, as where the contract relates to future or unascertained goods, the essense of 'sale ' in the legal sense is the transfer of the property in a thing from one person to another for a price.
The Court then proceeded to determine, the connotation of the expression 'sale of goods ' in the legal sense and held, having regard lo the evolution of the law relating to sale of goods, the scheme of the Indian Contract Act and the provisions of the , which repealed Chapter VII of the Indian Contract Act relating to sale of goods, that according to the law both of England and of India, in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to the goods, which pre supposes capacity to contract, that the contract must be supported by valuable consideration and that as a result of the transaction property must actually pass in the goods.
"Unless all these elements are present, there can be no sale," Basing itself on this position, the Court finally concluded in Gannon Dunkerley (supra) that the expression 'sale of goods ' was, at the, time when the Government of India Act was enacted, a term of wellrecognised legal import in the general law relating to sale of goods and in the legislative practice relating to that topic both in England and in India and therefore that expression, occurring in entry 48, must be interpreted in the sense which it bears in the .
In coming to this conclusion, the Court relied upon the, American decisions in United States vs Wong Kim Ark, South Carolina vs United States(2 ) and Ex Parte Grossman(3); the Privy Council decisions in L 'Union St. Jacques De Montreal vs Be Lisle (4) , Royal Bank of Canada vs Larue,(5) The Labour Relations Board of (1) ; (2) ; (3) ; (4) [1874] L.R. 6 P.C.31.(5) 448 Saskatochewan vs John East Iron Works Ltd.(1); Croft vs Dunphy(2), and Wallace Brothers and Co. Ltd. vs Commissioner of Income tax, Bombay City and Bombay Suburban District;(3) the decision of the Federal Court in In re The Central Provinces and Berar Act No. XIV of 1938; (supra); and the decisions of this Court in The State of Bombay vs F. N. Balsara(4) and The Sales Tax Officer, Pilibhit vs Messrs Budh Prakash Jai Prakash(5).
In a nutshell, these decisions have taken the view that the Constitution must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution, that the language of the Constitution cannot be understood without reference to the common law, that to determine the extent of the grants of power, the Court must place itself in the position of the men who framed and ' adopted the Constitution and inquire what they must have understood to be the meaning and scope of those grants, that when a power is conferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily treated as embarced within that topic in legislative practice and particularly in the legislative practice of the State which has conferred that power, that the object of doing so is emphatically not to seek a pattern to which a due exercise of the power must conform, but to ascertain the general conception involved in the words of the Act, and finally, that Parliament must be presumed to have had Indian legislative practice in mind and unless the context otherwise clearly requires, not to have conferred a legislative power intended to be interpreted in a sense not understood by those to whom the Act was to apply.
The view expressed in Gannon Dunkerley (supra) that the, words "sale of goods" in entry 48 must be interpreted in the sense which they bear in the an$ that the, meaning of those words should not be left to fluctuate with the definition of 'sale in laws relating to sales of goods which might be in force for the, time being may, with respect, bear further consideration but that may have to await a more suitable occasion.
It will then be necessary to examine whether the words "sale of goods" which occur in entry 48 should not be construed so as to extend the competence of the legislature to enacting laws in respect of matters which might be unknown in 19 3 5 when the Government of India Act was passed but which may have come into existence later, as a result of a social and economic evolution.
In Attorney General vs Edison Telephone, Company of London(,,) a question arose whether the Edison Telephone Company London, infringed by installation of telephones, the, exclusive privilege, of transmitting telegrams which was conferred; upon the Postmaster General under an Act of 1869.
The decision depended on the meaning of the (1) (2) (3) [1948] L.R. 75 I.A. 86.(4) ; (5) ; (6) 449 word "telegraph" in the Acts of 1863 and 1869.
The company contended that since telephones were unknown at the time when these Acts were passed, the definition of 'telegraph ' could not comprehend 'telephones.
That contention was negatived by an English Court.
In the Regulation and Control of Radio Communication in Canada, In re(1) a similar question arose as to whether 'broadcasting" was covered by the expression "telegraph and other works and undertakings" in section 92(10) (a) of the Constitution Act of 1867.
The Privy Council answered the question in the affirmative and was apparently not impressed by the contention that broadcasting was not known as a means of communication at the time when the Constitution Act was passed.
These decisions proceed on the principle that if after the enactment of a legislation, new facts and situations arise which could not have been in the contemplation of the legislature, statutory provisions can justifiably be applied to those facts and situations so long as the words of the statute are in a broad sense capable of containing them.
This principle, according to the view expressed in Gannon Dunkerley, (supra) did not apply to the interpretation of Entry 48, a view which in our opinion is capable of further scrutiny.
It is, however, unnecessary in these appeals to investigate the matter any further because, the position which emerges after putting on the words of Entry 48 the same meaning which those words ' bear in the is that in order to constitute a sale, it is necessary that there should be an agreement between the parties.
In other words, the effect of the construction which the Court put on the words of Entry 48 in Gannon Dunkerley (supra) is that a sale is necessarily a consensual transaction and if the parties have no volition or option to bargain, there can be no sale.
For the present purposes, this view may be assumed to reflect the correct legal position but even so, the transactions which are the subject matter of these appeals will amount to sales.
Applying the ratio of Gannon Dunkerley, (supra) the true question for decision, therefore, is whether in the context of the Control Orders issued by the Government of West Bengal for regulating the supply and distribution of cement, the transactions under which the, appellant supplied cement to persons who were issued permits by the authorities to obtain the commodity from the appellant, involved an element of volition or consensuality.
If they did, the transactions would amount to sales, but not otherwise.
It is undeniable that under paragraph 2 of the West Bengal Order of 1948, which we have for convenience designated as the Cement Control Order, no person can dispose of or agree to dispose of any cement except in accordance with the conditions contained in a written order of the Director of Consumer Goods or the authorities specified in that paragraph.
That is a limitation on the dealer 's right to supply cement.
Correspondingly by paragraph 3, no person can acquire or agree to acquire cement from any person except in accordance with the conditions contained in a written order of the Director of Consumer Goods or the authorities specified in that paragraph.
That is a limitation on the consumer 's right to obtain cement.
Paragraph 4 puts a restriction on the price which a dealer (1) 45 0 may charge for the commodity by providing that no person shall sell cement at a price higher than the notified price.
Paragraph 8 imposes on the dealer the obligation to supply cement by providing that no person or stockist who has any stock of cement in his possession and to whom a written order has been issued under paragraph 2 shall refuse to sell the same at a price not exceeding the notified price person who contravenes the provisions of the Cement Control Order is punishable under section 6 of the West Bengal Cement Control Act, 1948 with imprisonment for a term which may extend to three years These limitations on the normal right of dealers and consumers to supply and obtain the goods, the obligations imposed on the parties and the penalties prescribed by the Control Order do not, in our opinion, militate against the position that eventually, the parties must be deemed to have completed the transactions under an agreement by which one party bound itself to supply the stated quantity of goods to the other at a price not higher than the notified price and the other party consented to accept the goods on the terms and conditions mentioned in the permit or the order of allotment issued in its favour by the concerned authority.
Offer and acceptance need not always be in an elementary form, nor indeed does the Law of Contract or of Sale of Goods require that consent to a contract must be express.
It is commonplace that offer and acceptance can be spelt out from the conduct of the parties which covers not only their acts but omissions as well.
Indeed, on occasions, silence can be more eloquent than eloquence itself.
Just as correspondence between the parties can constitute or disclose an offer and acceptance, so can their conduct.
This is because, law does not require offer and acceptance to conform to any set pattern formula.
In order, therefore, to determine whether there was any agreement or consensuality between the parties, we must have regard to their conduct at or about the time when the goods changed hands.
In the first place, it is not obligatory on a trader to deal in cement nor on any one to acquire it.
The primary fact, therefore, is that the decision of the trader to deal in an essential commodity is volitional.
Such volition carries with it the willingness to trade in the, commodity strictly on the terms of Control Orders.
The consumer too, who is under no legal compulsion to acquire or possess cement, decides as a matter of ' his volition to obtain it on the terms of the permit or the order of allotment issued in his favour.
That brings the two parties together, one of whom is willing to supply the essential commodity and the other to receive it.
When the allottee presents his permit to the dealer, he signifies his willingness to obtain the commodity from the dealer on the terms stated in the permit.
His conduct reflects his consent.
And when, upon the presentation of the permit, the dealer acts upon it, he impliedly agrees to supply the commodity to the allottee on the terms by which he has voluntarily bound himself to trade in the commodity his conduct too reflects his consent.
Thus, though both parties are bound to comply with the legal requirements governing the transaction, they agree as between themselves to enter into the transaction on statutory terms, 451 one agreeing to supply the commodity to the other on those terms and the other agreeing to accept it from him on the very terms.
It is therefore not correct to say that the transactions between the appellant and the allottees are not consensual.
They, with their free consent, agreed to enter into the transactions.
We are also of the opinion that though the terms of the transaction are mostly predetermined by law, it cannot be said that there is no area at all in which there is no scope, for the parties to bargain.
The West Bengal Cement Control Act, 1948 empowers the Government by section 3 to regulate or control the prices at which cement may be purchased or sold.
The Cement Control Order, 1948 provides by paragraph 4 that no person shall sell cement at a "higher than notified price", leaving it open to the parties to charge and pay a price which is less than the notified price, the notified price being the maximum price which may lawfully be charged.
Paragraph 8 of the Order points in the same direction by providing that no dealer Who has a stock of cement in his possession shall refuse to sell the same "at a price not exceeding the notified price", leaving it open to him to charge a lesser price, which the allottee would be only too agreeable to pay.
Paragraph 8 further provides that the dealer shall deliver the cement "within a reasonable time" after the payment of price.
Evidently, within the bounds of reasonableness, it would be open to the parties to fix the time of delivery.
Paragraph 8A which confers on the allottee the right to ask for weighment of goods also shows that he may reject the goods on the ground that they are short in weight just as indeed, he would have the undoubted right to reject them on the ground that they are not of the requisite quality.
The circumstance that in these areas, though minimal, the parties to the transactions have the freedom to bargain militates against the view that the transactions are not consensual.
While on this aspect, we may usefully draw attention to two important decisions of this Court, the first of which is Indian Steel & Wire Products Ltd. vs State of Madras(1).
The appellant therein supplies certain steel products to various persons in Madras at the instance of the Steel Controller exercising powers under the Iron and Steel '(Control of Production and Distribution) Order, 1941.
The State of Madras assessed the turnover of the appellant to sales tax upon which, the appellant contended that the deliveries of steel products were made under compulsion of law since it was the controller who determined the persons to whom the goods were to be supplied, the price at which they were to be supplied, the manner in which they were to be transported and the mode in which the payment of the price was to be made.
Since every facet of the transaction was prescribed by the controller, so it was argued, there was no agreement between the parties and therefore the transaction could not be considered as a sale.
Rejecting this contention, it was observed by Hegde J., who spoke for the Constitution Bench, that though the controller fixed the base price of the steel products and determined the (1) ; 452 buyers, the parties were stiff 'free to decide the other terms of the bargain, as for example, the time and date of delivery and the time and mode of payment and therefore it could not be said that there was no agreement between the parties to sell and buy the goods.
It was held that though the area within which it was possible for the parties to bargain was greatly relieved on account of the Iron and Steel Control Order, it was not correct to contend that because law imposes restrictions on freedom of contract, there could be no contract at all.
"So long as mutual assent is not completely excluded in any dealing, in law it is a contract.
" The second decision is reported in Andhra Sugar Ltd. vs State of Andhra Pradesh(1).
In that case, the occupier of a sugar factory had to buy sugarcane from cane growers in conformity with the directions.
of the Cane Commissioner issued under the Andhra Pradesh (Regulation of Supply and Purchase) Act, 1961.
Under section 21 of that Act, sales and purchase of sugarcane were exempt from tax under the Andhra Pradesh General Sales Tax Act, 1957, but under section 2(1), of the Act of 1961, the State Government had power by notification, to levy a tax "on the purchase of cane required for use, consumption or sale in a sugar factory".
Various sugar factories in the State filed writ petitions under Article 32 of the Constitution challenging the validity of section 21 mainly on the ground that since they were compelled by law to buy cane from the cane growers, their purchases were not made under agreements and were not taxable under entry 54, List 11 of the Seventh Schedule to the Constitution having regard to the decision in Gannon Dunkerley (supra).
The writ petitions were decided by a Constitution Bench of this Court which delivered its un animous judgment through Bachawat J.
It is necessary in the first place to state that though it was argued on behalf of the State Government in that case that the occupier of the factory had some option of not buying the sugarcane from the grower and had some freedom of bargaining about the terms and conditions of the agreement, that point was not pursued any further and the writ petitions proceeded on the basis that there was no option left for any bargain in the transaction.
After referring to the definition of "contract of sale of goods" in section 4(1) of the Indian , and the relevant provisions of the Contract Act relating to offer and acceptance, the Court observed that under section 10 of the Contract Act, an agreements are contracts if they are made by the free consent of the parties competent to contract, for a lawful consideration and with a lawful object, and are not by the Act expressly declared to be void.
Section 13 of the Contract Act defines "consent" and section 14 says that consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake as defined in sections 15 to 22.
In the background of those provisions, the Court observed that the cane grower in the factory zone was free to make or, not to make an offer of sale of cane 'to the occupier of the factory.
But if be made an offer, the occupier of the factory was bound to accept it and the consent of the occupier not being caused by coercion, undue influence, fraud, misrepresentation or mistake was "free (1) ; 453 consent as defined in section 14 of the Contract Act, even though he was obliged by law to enter into the agreement.
"The compulsion of law is not coercion as defined in section 15 of the Act" and "in the eye of the law, the agreement is freely made.
" Since the, parties were competent to contract, the agreement was made for a lawful consideration and with a lawful object, the agreement was not void under any provision of law and it was enforceable at law, the Court held that the purchases of sugarcane were taxable by the State legislature under Entry 54, List 11 of the Seventh Schedule of the Constitution.
Strong reliance was placed by the factory owners in Andhra Sugars (supra) on the majority ' judgment of Kapur and Shah JJ in New India Sugar Mills Ltd. vs Commissioner of Sales Tax (supra) to which we must refer here.
The "admitted course of dealing" between the parties in that case was that the Governments of various consuming States used to intimate to the Sugar Controller of India, from time to time, their requirements of sugar and similarly, the factory owners used to send to the Sugar Controller of India statements of stocks of sugar held by them.
On a consideration of the requests received from the State Governments and the statements of stock received from the factories, the Sugar Controller used to make allotment of sugar allotment order was addressed by the Sugar Controller to the factory owner directing him to supply sugar to the State Government in question in accordance with the despatch instructions received from the competent officer of the State Government.
A copy of the allotment order was simultaneously sent to the State Government concerned on receipt of which the competent authority of the State Government sent to the factory concerned detailed instructions about the destinations to which the sugar was to be despatched as also the quantities of sugar to be despatched to each place.
The Madras Government which, under this arrangement, received its quota of sugar from the New India Sugar Mills, also laid down the ' procedure of payment.
The Patna High Court having held that the supply of sugar by the mills to the Province of Madras was liable to be taxed under the Bihar Sales Tax Act, 1947, the mills filed an, appeal to this Court which was decided by a Bench of three learned Judges.
Kapur and Shah J. held that since the mills were compelled to carry out the directions of the Controller and since they had no volition in the matter of supply of sugar to the State of Madras, there was no offer by them to the State Government and no acceptance by the latter.
Shah J., speaking for the majority observed that a contract of sale between the seller and the buyer is a prerequisite to a sale and since there was no such contract, the transaction in question which the Bihar Sales Tax authorities sought to tax was not exigible to sales tax.
Hidayatullah J. who 'delivered a dissenting opinion observed after reviewing the position both under the English and the Indian Law, that though it was true that consent makes a contract of sale, such consent "may be express or implied and it cannot be said that unless the offer and acceptance are there in an elementary form, there can be no taxable sale.
" Taking the view that on obtaining the necessary permit, the sugar mills on the one hand and the Government of 454 Madras on the other agreed to "sell" and "purchase" sugar could admit of no doubt, the learned Judge said that when the Province of Madras after receiving the permit, telegraphed instructions to despatch sugar and the mills despatched it, "a contract emerged and consent must be implied on both sides though not expressed antecedently to the permit.
" The Controller brought the seller and the purchaser together, gave them permission to supply and receive sugar leading thereby to an implied contract of sale between the parties.
The learned Judge accepted that there was an element of compulsion in both selling and buying, perhaps more for the supplier than for the receiver, but, according to him, "a compelled sale is nevertheless a sale" and "sales often take place without volition of party.
" The learned Judge summed up the matter pithily thus : "So long as the parties trade under controls at fixed price and accept these as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to ' such a price.
Consent under the law of contract need not be express, it can be im plied. .
The present is just another example of an implied contract with an implied offer and implied acceptance by the parties.
" Adverting to the construction of the legislat ive entry 48 of List 11, VII Schedule to the Government of India Act, 1935, the learned Judge observed that the entry had to be interpreted in a liberal spirit and not cut down by narrow technical consideration.
"The entry in other words should not be shorn of all its content to leave a mere husk of legislative power.
For the purposes of legislation such as on sales tax it is only necessary to see whether there is a sale, express or implied. .
The entry has its meaning and within its meaning there is a plenary power.
If a sale express or implied is found to exist then the tax must follow."
We are of the opinion that the true position in law is as is set out in the dissenting judgment of Hidayatullah J., and that, the view expressed by Kapur and Shah JJ in the majority judgment, with deference, cannot be considered as good law.
Bachawat J. in Andhra Sugar (supra) was, with respect, right in cautioning that the majority judgment of Kapur and Shah JJ in New India Sugar Mills (supra) "should not be treated as an authority for the proposition that there can be no contract of sale under compulsion of a statute.
" (pages 715 716).
Rather than saying what, in view of the growing uncertainty of the true legal position on the question, we: are constrained to say, namely, that the majority judgment in New India Sugar Mills (supra) is not good law, Bachawat J. preferred to adopt the not unfamiliar manner of confining the majority decision to "the special facts of that case."
The majority judgment in New India Sugar Mills (supra) is based predominantly on the decision of this Court in Gannon Dunkerley (supra) to which we have referred at length in another context.
In fact, Shah J. observes at page 459 of the report after discussing the judgment in Gannon Dunkerley (supra) that "the ratio decidendi of that decision must govern this case.
" The decision in Gannon Dunkerley (supra) really turned on a different point, the question for consideration therein being whether the value of the materials used in the execution 455 of building contracts could be included within the taxable turnover of the company.
It was contended on behalf of the company that the power of the Madras Legislature to impose a tax on sales under entry 48, List 11 of Schedule VII of the government of India Act, 1935 did not extend to unposing a tax on the value of materials used in construction works, as there was no transaction of sale in respect of those goods, and that the provisions introduced in the Madras General Sales Tax Act, 1939, by the Madras General Sales Fax (Amendment) Act, 1947, authorising the imposition of such tax were ultra vires.
Venkatarama Aiyar J. posed the question thus : "The sole question for determination in this appeal is whether the provisions of the Madras General Sales Tax Act are ultra vires, in so far as they seek to impose a tax on the supply of materials in execution of works contract treating it as a sale of goods by the contractor. ".
The Court accepted that building materials were 'goods ' and limited the inquiry to whether there was "a sale of those materials within the meaning of that word in entry 48".
Reference was then made to Benjamin on Sale in which it is said that in order to constitute a 'sale, four elements must concur "(1) Parties competent to contract; (2) mutual assent, (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (c) a price in money paid or promised." (Vide 8th Edn., p. 3).
On the strength of this statement and on a consideration of the provisions of the Contract Act and the it was concluded that "according to the law both of England and of India, in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods".
The Court then proceeded to examine the true nature of a building contract and held "It has been already stated that, both tinder the common law and the statute law relating to sale of goods in England and in India, to constitute A transaction of sale there should be an agreement, express or implied, relating to goods to be completed by passing of title in those goods.
It is of the essence of this concept that both the agreement and the sale, should relate to the same subject matter.
Where the goods delivered under the contract are not the goods contracted for,, the purchaser has got a right to reject them, or to accept them and claim damages for breach of warranty.
Under the law, therefore, there cannot be an agreement relating to one kind of property and a sale as regards another.
We are accordingly of opinion that on the true interpretation of the expression`sale of goods ' there must be an agreement between the parties for the sale of the very goods in which eventually property passes.
In a building contract, the agreement between the parties is that the contractor should construct a building according to the specifications contained in the agreement, and in consideration therefor receive payment as provided therein, and as will presently be shown there is in such An agreement neither a contract to sell the materials used in the construction, nor does property pass therein as movables.
It is therefore impossible to maintain that there 456 is implicit in a building contract a sale of materials as understood in law." (pages 413 414)
The final conclusion on the point involved in the appeal was expressed thus "To sum up, the expression 'sale of goods ' in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement.
In a building contract which is, as in the present case, one entire and indivisible and that is its norm, there is no sale of goods, and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract treating it as a sale." (pages 425 426) Thus, the, two reasons given by the Court in support of its conclusion were, firstly, that in a building contract there was no agreement, express or implied, to sell 'goods ' and secondly, that property in the building materials does not pass in the materials regarded a; 'goods ' but it passes as part of immovable property.
In New India Sugar Mills (supra) the commodity with which Court was concerned was sugar and was delivered as sugar just as in the instant case the commodity with which we are concerned is cement which was delivered as cement.
That meets the first reason in Gannon Dunkerley (supra).
As regards the second, it is quite clear that the tax was demanded after the commodity had changed hands or putting it in the words of the Sale of Goods law, after property in it had passed.
With great respect therefore, the majority in New India Sugar Mills (supra) was in error in saying that "the ratio decidendi of that decision (Gannon Dunkerley) must govern this case '.
The question before us which was the very question involved in New India Sugar Mills (supra) viz., whether a transaction effected in accordance with the obligatory terms of a statute can amount to a 'sale did not arise in Gannon Dunkerley.
Just as the, majority Judges in New India Sugar Mills (supra) applied to the case before them the ratio of Gannon Dunkerley, (supra) the Court in the latter case applied the ratio of the House of Lords decision in Kirkness vs John Hudson and Co. Ltd.(1) observing categorically that "the derision in Kirkness must be hold to conclude the matter" (P. 412).
We think it necessary to lay particular emphasis on this aspect because it shows how the question for decision in Gannon Dunkerley (supra) was basically different from the question in New India Sugar Mills (supra) or in, the appeals before us.
In Kirkness (supra), railway wagons belonging to the respondent company were taken over by the Transport Commission compulsorily it) exercise of the powers conferred by section 29 of the Transport Act, 1947, and compensation was paid therefor.
The question was whether this amount was liable to income tax on the footing of sale of the wagons by the company.
The contention on behalf of the revenue if was that compulsory acquisition being treated as sale under the English law, the taking over of the wagons and payment of compensation (1) 457 therefor must also be regarded as sale for purpose of income tax and therefore, the company was liable to a balancing charge under section 17 of the Income tax Act, 1945.
The case turned on the meaning of the word sale ' for the purposes of the Excess Profits Tax legislation and the income tax Act, 1945 (8 & 9 Geo. 6, c. 3).
Lord Morton in his dissenting speech found it "impossible to say that the only construction which can fairly be given to the word 'sold ' in section 17(1) (a) of the Income Tax Act, 1945, is to limit it to a transaction in which the element of mutual assent is present." But the majority of the House came to A different conclusion, and held that the element of bargain was essential to constitute a sale ' and to describe compulsory taking over of property as a sale was a misuse of that word.
We are not concerned in these appeals with 'Compulsory acquisition ' of goods nor indeed, was the Court concerned with it in Gannon Dunkerley (supra).
The majority in New India Sugar Mills (supra) was right in saying that the decision in Kirkness (supra) and the "observations made therein have little relevance in determining the limits of the, legislative power of the Provincial legislature under the Government of, India Act, 1935, and the interpretation of statutes enacted in exercise of that power.
" In fact, if we may say so with great respect ', the observation in Gannon Dunkerley (supra) that the decision in Kirkness (supra) concluded the question before the Court seems to us somewhat wide of the mark.
Since Kirkness (supra) involved an altogether different point, we would have avoided referring to it put the reliance upon it 'in Gannon Dunkerley (supra) may lead to a misunderstanding regarding its true ratio which needs to be clarified.
Besides Kirkness (supra) has been referred to in various decisions and has been considered as an authority for apparently conflicting propositions, which too made it necessary to understand the decision in a proper perspective.
It is not the decision in Kirkness (supra) but another English decision which may with advantage be noticed.
That is the decision of the Court of Appeal in Ridge Nominees Ltd. vs Inland Revenue Commissioners.(1) The question in that case was whether a transfer of shares executed under section 209 of the Companies Act, 1948 on behalf of a stockholder who declined to accept the offer of purchase was required to be stamped as a transfer on sale.
Under section 209, the transferee company was entitled in certain circumstances to give a notice to a dissenting shareholder that it desired to acquire his shares.
Upon such notice being given, the transferee company became entitled to acquire the shares of the dissenting shareholder at a particular price.
If the dissenting shareholder did not transfer the shares, then subsection (3) provided for the execution of a transfer on behalf of the shareholder by a person appointed by the transferee company.
In the First Schedule to the Stamp Act, 1891 was included the item "Conveyance or transfer on sale of any property. .
In the light of this entry under which stamp duty was payable, the question which the Court had to consider was whether a transfer executed on behalf of a dissenting shareholderwasa"transferonsale".
Theanswerdepended upon whether there could be a sale even though the essential element (1) 45 8 of mutual assent was totally absent.
Lord Evershed M.R. observed in his judgnient that what the Companies Act had done, by file machinery it had created, was that in truth it brought into being a transaction which ex facie in all its essential characteristics and effect was a transfer on sale.
Donovan L.J. in his concurring judgment said that when the legislature by section 209 of the C Act empowered the trans feree company to appoint an agent on behalf of a dissenting shareholder 3 for thempurpose of executing a transfer of his shares against a price to be paid to the transferor company and held in trust for the dis senting shareholder, it was clearly shring his dissent and putting him in the same position as if he had.
For the purpose of considering whether the transaction amounted to a sale, one must, according to the learned Judge, regard the dissent of the shareholder as overriden by an assent which the statute imposed upon him, fictional though it may be.
Danckwerts L.J., also by a concurring judgment, said that a sale may not always require the consensual element and that there may, in truth, be a compulsory sale of property in which the owner is compelled to part with Ws property for a price, against his will.
We will proceed to refer to the Other decisions of this Court bearing on the point under discussion.
In State of Rajasthan vs M/s Karam Chand Thapper & Bros. Ltd.(1) the respondent assessee which was registered as a dealer under the Rajasthan Sales Tax Act, 1954, entered into a contract with the Equitable Cod Company under which it acquired monopoly rights to supply coal in_Rajasthan as an agent of the Coal Company.
The respondent supplied coal to the State of Rajasthan under an agreement with it and that transaction was included in the respondent 's turnover by the Sales Tax Officer, Jaipur.
The High Court of Rajasthan allowed the respondents writ petition against the order of assessment on the,, ground, inter alia, that the supply of coal by the respondent to the State of Rajasthan did not constitute salt as the, supply was controlled by a statutory order, namely, the Colliery Control Order, 1945.
In appeal to this Court by the State of Rajasthan, it was held that under the Colliery Control Order, coal could be supplied under a contract and the effect of the Control Order was only to superimpose upon the agreement between the parties the rate fixed by the Control Order.
The four elements required to constitute a sale, namely, competency of parties, mutual assent of the parties, passing of property in the goods supplied to the purchaser, and lastly, payment or promise of payment of price were all present to render the turnover liable to sales tax" Shah J. who spoke for the Court relied upon the judgments in Indian Steel and Wire Products, (supra) and Andhra Sugar (supra) observing that in these two cases the Court had held that "when goods, supply of which is controlled by statutory orders, are delivered pursuant to a contract of & The, the principle of the case in M/s New India Suqar Mills Ltd. case (supra) has no application. "
The Court distinguished the decision in New India Sugar Mills (supra) on the ground that it was founded on a different principle since the condition requiring mutual assent of the parties was lacking in that case.
(1) [1969].
1 S.C.R. 861.
459 In Chhitter Mal Narain Das vs Commissioner of Sales Tax(1) the appellants who were dealers in food grains supplied to the Regional Food Controller diverse quantities of wheat in compliance with the provisions of the U.P. Wheat Procurement (Levy) Order, 1959.
The High Court held in a reference made to it under the Sales Tax Act that the transaction amounted to a sale And was exigible to sales tax.
In appeal to this Court it was held by a Bench consisting of Shah and Hegde JJ that clause 3 of the U.P. Procurement (Levy) Order, 1959 sets up a machinery for compulsory acquisition by the State Government of stocks of wheat belonging to the licensed dealers, that the Order contains a bald injunction to supply wheat of the specified quantity day after day, that it did not envisage any consensual arrangement and that the Order did not even require the State Government to enter into an informal contract with the supplier.
Delivering the judgment of the Bench, Shah J. observed that the transaction in which an obligation to supply goods is imposed, and which does not involve an obligation to enter into a contract, cannot be called a 'sale ', even if the person supplying goods is declared entitled to the value of goods which is determined in the prescribed manner.
It was observed that the decision in Indian Steel and Wire Products (supra) does not justify the view that even if the liberty of contract in relation to the fundamentals of the transaction is completely excluded, a transaction of supply of goods pursuant to directions issued under a Control Order may be regarded as a sale.
This decision is clearly distinguishable since the provisions of the Wheat Procurement Order were construed by the Court as being in the nature of compulsory acquisition of property obliging the dealer to supply wheat from day to day.
Cases of compulsory acquisition of property by the State stand on a different footing since there is no question in such cases of offer and acceptance nor of consent, either express or implied.
We would, however, like to clarify that though compulsory acquisition of property would exclude the element of mutual assent which is vital to a sale, the learned Judges were, with respect, not right in holding in Chitter Mal(1) that even if in respect of the place of delivery and the place of payment of price, there could be a consensual arrangement the transaction will not amount to a sale (p. 677).
The true position in law is as stated above, namely, that so long as mutual assent, express or implied, is not totally excluded the transaction will amount to a sale.
The ultimate decision in Chitter Mal (supra) can be justified only on the view that clause 3 of the Wheat Procurement Order envisages compulsory acquisition of wheat by the State Government from the licensed dealer.
Viewed from this angle, we cannot endorse the Court 's criticism of the Full Bench decision of the Allahabad High Court in Commissioner, Sales Tax U.P. vs Ram Bilas Ram Gopal(2) which held while construing clause 3 that so long as there was freedom to bargain in some areas the transaction could amount to a sale though effected under compulsion of a statute.
Looking at the scheme of the U.P. Wheat Procurement Order, particularly clause 3 thereof this Court in Chitter Mal (supra) seems to have concluded that the transaction was, in truth and substance, in the nature of compulsory acquisition, with no real freedom to bargain in any area.
Shall J. expressed the Court 's interpretation of clause 3 in no uncertain terms by saying that "it did not envisage, any consensual arrangement." In Salar Jung Sugar Mills Ltd. vs State of Mysore, (supra) which was decided by a Bench of seven learned Judges, the appellants were subjected to levy of tax on purchase of sugarcane after the inclusion of sugarcane in the Third Schedule to the; Mysore Sales Tax Act, 1957.
They challenged the levy on the ground that on account of the Central and State Control Orders applicable to the transactions, there was no mutual assent between them and the growers of sugarcane in regard to supply of sugarcane by the latter and since there was no purchase and sale of sugarcane, they were not dealers within the meaning of section 2(k) of the Mysore Sales Tax Act.
After referring to the cases which we have considered above, it was held by the Court that the decisions relating to 'compulsory sales? establish that statutory orders regulating.
the supply and distribution of goods do not absolutely impinge on the freedom of contact.
In spite of the fact that under the relevant Control Orders the parties, the minimum price and the minimum quantity of supply were, determined or regulated, the Court held that the Control Orders left to the parties the option in regard to a higher quantity then was stipulated in the Orders, It higher price than the minimum as also the form and manner of payment.
A factory could reject goods after inspection which indicated not only freedom in the formation but also in the performance of the contract.
A combination of all these factors, according to Ray J. who spoke for a unanimous Court, indicated with unerring accuracy that the parties entered into agreement with mutual assent and with volition for transfer of ' goods in consideration of price.
The transactions were accordingly held as amounting to sales within the meaning of section 2(t) of the, Mysore Sales Tax Act.
In coming to this conclusion the Court relied on the statement in Benjamin on Sale, 8th ed.
page 68 that though a contract of sale requires mutual assent, "The assent need not as a general rule be express" and that, it may be implied from the language of or conduct of parties and indeed it may even be inferred from the silence on the part of parties in certain cases.
As an instance, the Court referred to the common case of a person buying rationed articles from a ration shop. "The parties, the price, the shop, the supply and the acceptance of goods in accordance with the provisions of the Ration Order ,ire all regulated.
" All the same, said the Court, when the customer presents the ration card to the shopkeeper, the shopkeeper delivers the rationed articles, the customer accepts the articles and pays their price "there is indisputably a sale".
In State of Tamil Nadu vs Cement Distributors Private Ltd.() the principal question which arose for decision was whether producers who supplied cement to the State Trading Corporation or its agents in gunny bass in pursuance of the directions given by the Government were liable to pay sales tax on the turnover relating to the price of gunny bags.
In some of the connected appeals the question also arose whether the (1) ; 461 selling agents of the, State Trading Corporation were liable to, pay sales lax in respect of the price of the gunny bags in which, they sold cement to, the consumers.
As regards the question whether the transactions between producers and the State Trading Corporation in so far as the supply of cement was concerned amounted Lo sales within the meaning of the Madras General Sales Tax Act, 1959, Hegde, J. who spoke for the three Judge Bench observed that there was "no dispute" that those transactions could not amount to sales in view of the Cement Control Order, 1958.
On the question whether the gunny bags, in which the cement was supplied, can be considered to have been sold it was observed that there was "no dispute ' that if the price of gunny bags was held to have been wholly controlled, then the supply of gunny bags also could not be considered as sales.
This position was held to have been concluded by the decisions in New India Sugar Mills Ltd. (supra) and Chittar Mal Narain Das (supra).
The only question which the Court considered was whether, in fact, the price of the gunny bags in which cement was supplied to the State Trading Corporation was controlled by the Cement Control Order of 1958.
On that question it was held that since the Central Government had fixed the actual price of the gunny bags also, the supply of gunny bags did not amount to sales.
In the first place, the, decision proceeds on a concession in so far as the supply of cement is concerned as is shown by the statement that there was "no dispute ' that "the same cannot be considered as sales".
As regards the other question concerning gunny bags, the Court did not allow the Advocate General of Tamil Nadu to contend that since tinder clause 6(4) of the Cement Control Order the Central Government could have fixed the maximum and not the actual price of gunny bags, was scope for bargaining between the parties.
That question not having been raised in the High Court or in the appeal memo filed in this Court and the Central Government not having put in its appearance in this Court, permission was declined to raise the questions Thus the decision is not an authority for the, proposition for which the appellant contends.
Besides the judgment rests partly on the decision in New India Sugar Mills (Supra) which we have dissented from and partly on Chitter Mal (supra) which, by reason of the 'compulsory acquisition ' inferred therein, was distinguishable.
In oil and Natural Gas Commission vs State of Bihar(1) a three Judge Bench speaking through Ray CJ.held, following the judgment in Salar Jung Sugar Mills Ltd., (supra) that the supplies of crude oil by the Oil and Natural Gas Commission to a refinery of the Indian Oil Corporation amounted to sales, even though the supplies were made pursuant to the directions and orders of the Central Government and the Commission had no volition in the matter.
Law presumes assent of parties, it was observed, when there is transfer of goods from one party to the other.
This resume of cases, long as it is, may yet bear highlighting the true principle underlying the decisions of this Court which have (1) ; 462 taken the view that a transaction which is effected in compliance with the obligatory terms of a statute may nevertheless be a safe in the eye of law.
The Indian Contract Act which was passed in 1872 contained provisions in its seventh chapter comprising sections 76 to 123 relating to sale of goods which were repealed on the enactment of a comprehensive law of sale of goods in 1930.
The Contract Act drew inspiration from the English law of contract which is almost entirely the creation of English courts and whose growth is marked by features which are peculiar to the social and economic history of England.
Historically the English law of contract is largely founded upon the action on the case for assumpsit, where the essence of the matter was the undertaking.
The necessity for acceptance of the undertaking or the promise led the earlier writers on legal theories to lay particular emphasis on the consensual nature of contractual obligations.
It was out of the importance, which political philosophers of the eighteenth century gave to human liberty that the doctrine was evolved that every person should be free to pursue his own interest in the way he thinks best and therefore law ought to give effect to the will of the parties as expressed in their agreement.
Adam Smith in his famous work on "The Wealth of Nations" propounded in 1776 the view that the freedom of contract must as far as possible be left unimpaired.
Gradually, as would appear from Friedman 's statement in Law in a Changing Society (1959), ch.4 freedom of contract the freedom to contract on whatever terms might seem most advantageous to the individuals become a cornerstone of nineteenth centuary laissez faire economics.
Champions of individualist social philosophy who protested against legal and social restrictions in order to advance the policies of expansion and exploitation pursued by I industry and commerce won their battle and "freedom of contract was one of the trophies of victory" (see Anson 's Law of Contract, 23rd Ed. page 3).
The freedom and sanctity of contract thus became "the necessary instruments of laissez faire, and it was the function of the courts to foster the one and to vindicate the other.
Where a man sowed, there he should be able to reap".
is Cheshire and Fifoot 's Law of Contract, 8th Ed. page 19).
it is significant that the maxim itself laissez faire, laissez passer which derived from eightenth century France has been commonly attributed to Gournay, at first a merchant and later one of the intendants of commerce and a friend of Turgot.
Turgot attributes the phrase laissez nous faire to another merchant, Legendre, who is said to have used it in impressing upon Colbert the desire on the part of the mercantile community for non interference by the state .
When Colbert asked a meeting of French businessmen what the state might do to assist them, Legendre pointedly replied, "laissez nous faire" The underlying assumption of the laissez faire doctrine turns on an optimistic view of the nature of the universe and on the conception of a "natural order ' or system of economic harmonies which will prevail and work out to mankind 's advantag e in the absence of positive regulation.
(see International Encyclo paedia of the Social Sciences, 1968 Ed.
edited by David L. Sills, Vol. 8, page 546 and Encyclopaedia of the Social Sciences edited by Edwin R. A. Seligman, Vol.
IX, pages 15 16).
463 Towards the close of the nineteenth century it came to be realised that private enterprises, in order to be socially just, had to ensure economic equality.
"The very freedom on contract with its corollary, the freedom to complete, was merging into the freedom to combine; and in the last resort competition and combination were, incompatible.
Individualism was yield ing to monopoly, where strange things might well be done in the name of liberty.
The twentieth century has seen its progressive erosion on the one hand by opposed theory and on the other by conflicting practice.
The background of the law, social, political and economic, has changed Laissez fare as an ideal has been supplanted by, 'social security '; and social security suggests status rather than contract.
The State may thus compel persons to make contracts, as where, by a series of Road Traffic Acts from 1930 to 1960, a motorist must insure against third party risks; it may, as by the Rent Restriction Acts, prevent one party to a contract from enforcing his right under it; or it may empower a tribunal either to reduce or to in crease the rent payable under a lease.
In many instances a statute prescribes the contents of the contract.
The Moneylenders Act 1927 dictates the terms of any loan caught by its provisions; the Carriage of Goods by Sea Act 1924, contains six pages of rules to be incorporated in every contract for 'the carriage of goods by sea from any port in Great Britain or Northern Ireland to any other port; ' the Hire Purchase Act 1965, inserts into hire purchase contracts a number of terms which the parties are forbidden to exclude; successive Landlord and Tenant Acts from 1927 to 1954 contain provisions expressed to apply ,notwithstanding any agreement to the contrary '.
The erosion of contract by statute continues briskly; and there are no immediate signs of a reaction." (Cheshire and Fifoot 's Law of Contract, 8th Ed.
pages 21 22).
In the words of Anson, "Freedom of contract is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interests of the community at large.
In the more complicated social and industrial conditions of a collectivist society it has ceased to have much idealistic attraction.
It is now realised that economic equality Often does not exist in any real sense, and that individual interests have to be made to subserve those of the cornmunity.
Hence there has been a fundamental change both in our social outlook and in the policy of the legislature towards contract, and the law today interferes at numerous points with the freedom of the parties to make what contract they like . . 464 " This intervention is especially necessary today when most contracts entered into by ordinary people are not the result of individual negotiation.
It is not possible for a private person to settle the terms of his agreement with the British Railways Board or with the local electricity authority.
The 'standard form contract is the rule.
He must either accept the terms of this contract in toto, or go without.
Since, however, it is not feasible to deprive oneself of such necessary services, the individual is compelled to accept on those terms.
In view of this fact, it is quite clear that freedom of contract is now largely an illusion." (Anson 's Law of Contract, 23rd Ed. pages 3 4).
Anson is perhaps over optimistic in saying that there has been a fundamental change in social outlook and in the legislative policy towards contract.
Anyway, with the high ideals of the Preamble and the directive principles of our Constitution there has to be such a fundamental change, in judicial outlook.
Instances given in Cheshire and Anson have their parallels in India too, wherein freedom of contract has largely become an illusion.
The policy of our Parliament in regard to contracts, including those involved in sale of goods, has still to reflect recognition of the necessity for a change, which could be done by a suitable modification of the definition of 'sale of goods.
It all began with the reliance in Gannon Dunkerley (supra) (pages 396 398) on the statement in the 8th Edition (1950) of Benjamin on Sale that to constitute a valid tale there must be a concurrence of four elements, one of which is "mutual assent".
That statement is a reproduction of what the celebrated author had said in the 2nd and last edition prepared by himself in 1873.
The majority judgment in New India Sugar Mills (supra) (page 467) also derives, sustenance from the same passage in Benjamin 's 8th edition.
But as observed by Hidayatullah J. in his dissenting judgment in that case, consent may be express or implied and offer and acceptance need not be in an elementary form (page 510).
It is interesting that the General Editor of the 1974 edition of 'Benjarnin 's Sale of Goods" says in the preface that the editors decided to produce an entirely new work partly because commercial institutions, modes of transport and of payment, forms of contract, types, of goods, market areas and marketing methods, and the extent of legislative and governmental regulation and intervention, had changed considerably since 1868, when the 1st edition of the book was published.
The formulations in Benjamin 's 2nd edition, relating to the conditions of a valid 'sale ' of goods, which are reproduced in the 8th edition evidently require modi fication in the light of regulatory measures of social control.
Hidayatullah J., in his minority judgment referred to above struck the new path; and Bachawat J.Who spoke for the Court in Andhra Sugars (supra) went a step ahead by declaring that "the contract is a contract of sales and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute".
The concept of freedom of contract, as observed by Hedge J. in Indian Steel and 4 6 5 Wire Products, (supra) has undergone a great deal of change even in those countries where it was considered as one of the basic economic requirements of a democratic life.
Thus, in Ridge Nominees Ltd., (supra) the Court of Appeal, while rejecting the argument that there was no sale because the essential element of mutual assent was lacking, held that the dissent of the shareholder was overridden by an assent which the statute imposed on him, fictional though it may be, that a sale may not always require the consensual element mentioned in Benjamin on Sale, 8th Edition, page 2, and that there may in truth be a compulsory sale of property with which the owner is compelled to part for a price against his will.
(pages 405 406).
Decisions in case of 'compulsory acquisition, where such acquisition is patent as in Kirkness (supra) or is inferred as in Chitter Mal (supra) fall in a separate and distinct class.
The observations of Lord Reid in Kirkness (supra) that 'sale ' is a women juris the name of a particular consensual contract have therefore to be under stood in the context in which they were made, namely, that compulsory acquisition cannot amount to sale.
In Gannon Dunkerley, (supra) Venkatarama Aiyar J. was influenced largely by these observations (see pages 411, 412 and 425) and by the definition of 'sale ' in Benjamin 's 8th edition ' Gannon Dunkerley _(supra) involved an altogether different point and is not an authority for the proposition that there cannot at all be a contract of sale, if the parties to a transaction are obliged to comply with the terms of a statute.
Since we are putting in a nutshell what we have discussed earlier, we would like to reiterate in the interest of uniformity and certainty of law that, with great deference the majority decision in New India Sugar Mills (supra) is not good law.
The true legal position is as is stated in the minority judgment in that case and in Indian Steel and Wire Products, (supra) Andhra Sugars, (supra) Salar Jung Sugar Mills (supra) and Oil and Natural Gas Commission.
To the extent to which Cement Distributors Pvt.Ltd. (supra) is inconsistent with these judgments, it is also, with respect, not good law.
The conclusion which therefore emerges is that the transactions between the appellant, M/s. Vishnu Agencies (Pvt.) Ltd., and the allottees are sales within the meaning of section 2(g) of the Bengal Finance (Sales Tax) Act, 1941.
For the same reasons, transactions between the growers and procuring agents as also those between the rice millers on one hand and the wholesalers or retailers on the other are sales within the meaning of section 2(n) of the Andhra Pradesh General Sales Tax Act, 1957.
The turnover is accordingly 'exigible to sale tax or purchase tax as the case may be.
The appeals are accordingly dismissed with costs, with one hearing fee.
P.B.R. Appeals dismissed.
[/INST]A criminal case arising out of a complaint made against the accused including the respondents who happened to be public servants at the material time, for the alleged offences section 120 B/379/466/468/471 I.P.C. was allotted by the State Government through a notification &o. 3165 J dt. 8 4 70 to the Third Additional Special Court, Calcutta constituted under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act.
Following the notification, the appellant State through Ranjit Roy, Sub Inspector of Police filed a complaint before the Special Court on 11 9 70 detailing all the allegations against the accused and including the material facts that transpired in the course of the investigation of the case.
The Special Court Judge after perusal of the complaint and hearing the Public Prosecutor, took cognizance of the case section 409/109 and 409/34 I.P.C. which are offences mentioned in the Schedule of the Act, and issued processes to the accused.
In the trial after examining 70 witnesses, the prosecution closed its case on May 2, 1974.
The court framed charges against four accused including the respondents and discharged the remaining two accused by its order dated 26 2 1975.
Charges were framed under various sections including SS. 409 and 420 read with section 120 B I.P.C. The revision petitions moved by the respondents for quashing the trial on March 25, 1975, were accepted by the Calcutta High Court following its earlier decisions dated 29 3 1967 and 11 4 1975.
The High Court held that no legal and valid cognizance of the offence was taken by the learned Judge, Special Court and, therefore.
the entire proceedings became vitiated.
Allowing the appeal by certificate the Court.
HELD : (1) It is not obligatory for the Special Judge to examine complainant under section 200 Cr. P. C.
Under section 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, the allotment by the State Government to the Special Judge of a case involving of scheduled offences vests the neces sary jurisdiction in the Special Judge to proceed to trial and is, therefore, equivalent to that courts ' taking cognizance of the offence.
[385 G, 386 A B] Ajit Kumar Palit vs State of West Bengal [1963] Supp.
(1) SCR 953 @ 965 966, followed.
(2)Section 200 of the Criminal Procedure Code in terms, comes into play after taking cognizance of an offence by a Magistrate.
[386 D] Gopal Das Sindhi & Ors.
vs State of Assam & Anr.
AIR 1961 SC 986, 988 and 989, referred to.
(3)There is nothing in section 5(1) of the Act even after the amendment in 1960 to compel the Special Judge to comply with the provisions of section 200 Cr.
The words "in the manner laid down in clauses (a) and (b) of sub section
(1) of section 190 of the Criminal Procedure Code 1898" do not automatically introduce the provisions of section 200 Cr. P. C. of Chapter XVI, nor do the above words in section 5(2) of the Act, mandatorily compel the Special Judge to resort to the provisions of Chapter XVI.
The legislature in the above amendment has advisedly omitted to include section 200 Cr. P. C. and the other provisions in Chapter XVI of the Criminal Procedure Code.
[385 H, 386 A, E, F] (4)Because of the amendment of section 5(2) in 1960, it may now be open to the Special Judge to apply his judicial mind to the complaint apart from 383 allotment of the case in order to come to a decision as to whether he is satisfied on the materials laid before him at that stage to take cognizance of the offence and proceed to trial.
If he chooses to examine the complainant or any witness before issuing process against any accused, there is nothing in law to prevent him from doing so.
If he does not do so and is satisfied on perusal of the complaint after allotment of the case by the Government that an offence has been disclosed against definite persons, no valid objection could be taken against his taking cognizance on the written complaint without complying with the provisions of section 200 Criminal Procedure Code.
No grievance can be made then that the Special Judge has not examined the complainant under section 200, Cr. P. C. period to issuing of process.
[386 B D] Sudhir Chandra Bhattacharjee vs The State Crl.
Appeals Nos. 23 26 of 1961 (decided on 29th March 1967, Calcutta) and Shyama Saran Das Gupta vs The State (decided on 11th April 1975, Calcutta) over ruled.
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<s>[INST] Summarize the judgementivil Appeal Nos.
3452 54 and 4030 32 of 1982.
Appeals by Special leave from the Judgment and order dated the 20th November, 1979 of the Punjab and Haryana High Court in L.P.A. Nos.
26,62, 29, 38,39, and 30 of 1978.
R.K. Garg and N.S. Das Bahl for the Appellants in CAs.
Nos 3452 54 of 1982.
M.K. Ramamurthi, and Mrs. Urmila Sirur for the Appellants in CAs.
4031/82 and CAs.
4030 32 of 1982.
P.P. Rao and D.D. Sharma for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
The appellants, in these appeals by special leave, are aggrieved by the judgment of a Division Bench of the High Court of Punjab and Haryana affirming the dismissal of their writ petitions by a learned Single Judge of that Court.
The appellants are teachers in the service of the State of Punjab.
They claim the grades prescribed in paragraph 2 of the Government Circular letter No. 2036 ED.
1 67/2167 dated July 29, 1967, and in that regard seek the benefit of the Circular letter No. 9/9179 FR (2)/143 dated February 19, 1979 and its clarification by Circular letter No. 8937 5ED.
1179/2659 dated September 20, 1979.
The Circular letter dated July 29, 1967 gave effect to the recommendations of the Kothari Commission with effect from November 1, 1966 in respect of teachers in Government Schools.
Paragraph 2 of the Circular letter provided: "2.
Lectures in Higher Secondary Schools, Punjab Institute of English and Masters/Mistresses with Post 884 graduate qualifications in High/Higher Secondary Schools will be placed in Rs. 300 25 450/25 600 grade provided they have 1st and 2nd Division Master 's Degree.
Those with 3rd Class Master 's Degree will be placed in the grade of Rs. 250 25 400/25 550.
" It was specified that "the number of posts in Lecturer 's grade will be 1517 i.e. 742 posts for the existing school Lecturers and 829 additional posts for other Masters/Mistresses with Post graduate qualifications.
" It was clarified that "the Masters/Mistresses will be eligible to Lecturer 's grade only if they have Post graduate qualifications in the subject of their teaching.
No one will be entitled to those 829 additional posts automatically.
These posts will be allocated to various subjects keeping in view the requirements of the educational institutions and the appointments will be made keeping in view the rules/instructions as amended from time to time.
" Paragraph 3 stated that "all trained graduates and all other Masters with Post graduate qualifications, who are not fitted in the scale of Lecturer, will be in the scale of Rs. 220 8 300 10 400/20 500.
" It is apparent that paragraph 2 of the Circular letter dated July 29, 1967 is concerned essentially with providing for a Lecturer 's Grade: (1) It was intended to have 1571 posts in the Lecturer 's grade, consisting of 742 posts for the existing Lecturers and another 829 posts for Masters or Mistresses.
Masters or Mistresses were eligible for these posts in the Lecturer 's grade only if they possessed Post graduate qualifications in the subject of their teaching.
Those who did not satisfy that criterion were not eligible for those posts.
Moreover, no one was entitled to any of the 829 additional posts automatically.
The additional posts were to be distributed with reference to different subjects, and the distribution would be made having regard to the requirements of the educational institutions and subject to the rules and instructions currently in force.
(2) Existing Lecturers and Masters or Mistresses with Post graduate qualifications, who possessed a Master 's degree in the first or second division, would be entitled to the grade of Rs. 300 25 450/25 600.
Lecturers and 885 Masters or Mistresses with Post graduate qualifications who possessed a Master 's degrees in the third division would be entitled to the grade of Rs. 250 25 400/25 550 .
The appellants say that they are employed as Masters and Mistresses in High and Higher Secondary Schools run by the Punjab Government and possess an M.A. or M.Sc.
or B.T. or B.Ed.
degree and some of them have even acquired an M.Ed.
degree.
They are presently paid according to the pay scale Rs. 220 500.
They claim that they are entitled to either of the higher grades set forth in paragraph 2 of the Circular letter dated July 29, 1967.
From what has gone before it is clear that they can legitimately claim the benefit of those grades only if they are appointed to the posts of Lecturer.
And they do not dispute that they are not incumbents of those posts.
Much reliance has been placed on the decision of this Court in State of Punjab vs Kirpal Singh Bhatia.
In our opinion, that case is of no assistance to the appellants.
That was a case which was primarily concerned with Circular letter No. 5058 FR II 57/5600 dated July 23, 1957.
The Circular letter dated July 29, 1967 operates on a very different plane from the Circular letter dated July 23, 1957.
A brief reference to the historical background of the Circular letter dated July 23, 1957 will suffice.
Concerned at the low salaries granted to certain categories of Government servants, the Punjab Government issued Circular letter No. 5058 FR II/5600 dated July 23, 1957 revising their scales of pay.
Paragraph 3 classified all teachers in the Education Department according to their qualifications in two broad categories, category A being: "B.A./B.Sc./B.Com./B.Sc.
(Agriculture) and B.T./Diploma in Physical Education/Diploma in Senior Basic Training".
and they would now carry the scale of pay: 886 "Rs. 100 8 190 10 250 with a higher start for M.A. or M.Sc.
as at present.
" As is evident, the category was defined by reference to the possession of the specified graduate degree or Diploma.
In the event such a teacher also held a Post graduate degree he was entitled to a higher start in the grade.
The grade, however, remained the same.
It appears that several teacher tiled writ petitions in the High Court claiming revised scales of pay on the ground that they had taken graduate degrees and, therefore, were entitled to the benefit of the grade mentioned against Category in the Circular letter dated July 23, 1957.
In opposition to the writ petitions, the State Government contended that the letter did not contemplate tho grant of the grade to all teachers but only to teachers appointed as Masters.
The High Court held the teachers entitled to the benefit of the revised grade, whether or not they had been appointed as masters, because, in the opinion of the High Court, the qualifying criterion was the possession of a graduate degree.
The judgment of the High Court was affirmed by this Court in Kirpal Singh Bhatia (Suprd).
The State Government found it difficult, having regard to The prevailing burden on its financial resources, to extend the benefit of the Circular letter dated July 23, 1957 to the much wider section of teachers covered in consequence of the Court 's judgement.
Accordingly, the State Government issued Circular letter No. 9/9/79 FR (2)/143 dated February 19, 1979, paragraph 3 of which stated that in order to ensure that "these unintended and large financial implications do not continue arising in future" the whole matter had been reconsidered by the State Government and as a result the government ordered that henceforth the teachers or the Education Department would not automatically be entitled to placement in the higher scales of pay in terms of paragraph 3 of the Circular letter dated July 23, 1957 by the mere circumstance of their improving or acquiring higher qualifications in the course of their service.
The rigour of the restriction was relaxed in some measure.
Paragraph 3 said further: "However, in order to avoid discrimination between teachers who have already been allowed higher scales of pay on account of having improved their qualifications and those who have not yet been allowed this benefit even though they also possess higher qualifications it is decided that all teachers in the Education Department who have 887 improved their qualifications before the issue of this letter may be allowed the benefit of higher scale of on the basis of their qualifications.
" The benefit was not extended to those who were appointed or who had improved their qualifications after the issue of that Circular letter.
The teachers continued to agitate for a more generous dispensation.
The State Government then issued Circular letter.
No. 8937 5ED.1179/2659 dated September 20, 1979.
which declared: "The implementation of the decision contained in Finance Department Circular letter No. 9/9/79 FR (2)/143 dated February 19, 1979 to grant higher pay scales to the teachers on the basis of higher qualifications was kept pending for want of clarification on certain points from the Finance Department which has now become available and is reproduced below: 1.
The higher scale may be allocated from the date of passing the respective higher examination by the concerned teacher where this has already been done.
However, actual payment at enhanced rates should commence from 12 2.79 and the payment of arrears accruing from the date of passing the examination till 13.2.1979 be restricted to the maximum for 38 months.
The ben fit of the higher scale may be allowed from the date a particular teacher is appointed on regular basis or the date of passing the higher examination, which ever is later, but the payment of arrears as a result of grant of such benefit should be restricted to a period of 38 months only, as already mentioned above.
The teachers placed in the higher scale can only be regularly adjusted when corresponding posts in the higher scale become available; in that case such teachers may continue to enjoy the higher scale as a personal measure till they are adjusted against regular posts as and when the same become available.
" It was clarified that the contemplated benefit was confined to 888 the categories of teachers mentioned in the Circular letter No. 5058 FR II 57/5600 dated July 23, 1957.
The appellants claim the benefit of paragraph 2 of the Circular letter dated July 29, 1967, and therefore no reliance can be placed by them on the Circular letters dated February 19, 1979 and September 20, 1979, which relate merely to the scheme embodied in the Circular letter dated July 23, 1957.
The appellants contend that on the principle of "equal pay for equal work", affirmed by this Court in Randhir Singh vs Union of India & Ors.
they are entitled to the grades mentioned in paragraph 2 of the Circular letter dated July 29, 1967.
It is urged that like those Masters or Mistresses who have been given that benefit they have acquired Post graduate qualifications and are doing the same kind of work.
As has been explained earlier, the grades specified in paragraph 2 of the Circular letter dated July 29, 1967 are applicable only to those who specifically hold the posts of Lecturer.
There are a limited number of such posts, and appointment to them is strictly subject to the conditions detailed in paragraph 2 of the Circular letter.
In the result the appeals fail and are dismissed, but in the circumstances of the case there is no order as to costs.
N.V.K. Appeals dismissed.
[/INST]The appellant imported some stainless steel plates at concessional rate of import duty under a notification which provided : (i) that the importer should import the goods for the manufacture of all or any of the articles specified in that notification; (ii) that the articles so manufactured had to be sold to industrial units for their use; (iii) that in case of violation of any one of the conditions above mentioned, the importer was liable to pay, in respect of such quantity of goods as is not proved to have been utilised as per the notification, an amount equal to the difference between the duty leviable on such quantity but for the exemption contained in the notification and that already paid at the time of importation.
The appellant submitted a certificate that the goods imported by him under the notification had been consumed and/or utilised as per the notification.
But the Assistant Collector of Customs rejected the said certificate and held that the appellant was liable to pay the deficient duty in respect of the goods which had been sold to hospitals/nursing homes since they were not "industrial units" within the meaning of the .
The Collector of Customs (Appeals) confirmed the order in appeal.
The revision petition of the appellant before the Customs, Excise and Gold (Control) Tribunal, also failed.
The appellant contended before this Court that the word 'industrial units ' contained in the notification should be given the same meaning as is assigned to the word 'industry ' in the Industrial Dispute Act, 1947.
Dismissing the appeal, ^ HELD: (1) The expression 'industry ' has many meanings.
It means 'skill ', 'ingenuity ', 'dexterity ', 'diligence ', 'systematic work or labour ', 'habitual employment in the productive arts ', 'manufacturing establishment etc.
While construing a word which occurs in a statute or a statutory instrument in the 1147 absence of any definition in that very document it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which people conversant with the subject matter of the statute or statutory instrument understand it.
It is hazardous to interpret a word in a accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with any cognate subject.
[1149 H; 1150 A B] Craies on statute Law [6th Edn.] p. 164 referred to.
(2) 'Industry ' in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry.
An analysis of Entry 24 and 27 of List II, Entry 52 of List I and Entry 33 of List III of the Constitution shows that 'industry ' ordinarily means the process of manufacture or production.
[1151 E F] Sh.
Tika Ramji & Ors.
vs The State of Uttar Pradesh & Ors. ; at p. 420 followed.
(3) It is true that in the Bangalore Water Supply & Sewerage Board, etc.
vs R. Rajappa & Ors.
[1978]3 SCR 207 this Court has held that hospitals would also come within the definition of the expression 'industry ' given in the Industrial Dispute Act, 1947.
But that definition cannot be used for interpreting the word 'industry ' in a notification granting exemption from customs duty under the .
When the word to be construed is used in a taxing statute or a notification issued thereunder it should be understood in its commercial sense.
[1151 B C] (4) The new definition given to the word 'industry ' by Parliament in the Industrial Disputes (Amendment) Act, 1982 (46 of 1982) also specifically excludes 'hospitals or dispensaries ' from the category of 'industry '.
It shows that the meaning given to the expression 'industry ' in the cannot be depended upon while construing other statutes or statutory instruments and it should be confined to the .
Therefore, the word 'industry ' means only the place where the process of manufacture or production of goods is carried on and it cannot in any event include 'hospitals ', dispensaries or nursing homes.
[1151 G H; 1152 A B]
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<s>[INST] Summarize the judgementAppeal No. 79 of 1965.
Appeal from the judgment and order dated August 5, 1964.
of the Rajasthan High Court, Jodhpur, in D.B. Civil Writ Petition No. 536 of 1964.
L,/B(D)SCI 13 174 Sarjoo Prasad, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant.
M.M. Tewari, K.K. Jain and R.N. Sachthey, for respondent No. 1.
B.B. Tawakley and K.P. Gupta, for respondent No. 2.
The Judgment of the Court was delivered by Raghubar Dayal, J.
This appeal, on certificate granted by the Rajasthan High Court, is against the dismissal of the appellant 's writ petition under article 226 of the Constitution praying for the issue of a writ of certiorari to the State of Rajasthan, respondent No. 1.
for the canceling and setting aside of its order dated April 1, 1964 granting the contract for collecting royalty on building stones excavated from certain area to respondent No. 2, Dharti Dan Shramik Theka Sahkari Samiti Ltd., a cooperative society.
The appeal arises in these circumstances.
The appellant offered the highest bid at the auction for the grant of royalty collection contract on January 21, 1964.
Respondent No. 2 was also one of the bidders, but stopped after offering a bid of Rs. 33,000.
The final bid of the appellant was for Rs. 42,200.
The State Government made the order in favour of respondent No. 2 on an application made by it on March 5.
stating therein that the appellant had not deposited 25 per cent of the bid amount as security immediately after the completion of the auction in accordance with r. 36(7) of the Rajasthan Minor Mineral Concession Rules, 1959, hereinafter called the rules, and as per the terms and conditions of the Auction Notification and that it was prepared to take the royalty collection contract on the highest bid of Rs. 42,200.
It was further stated in the application that respondent No. 2 was a cooperative society of the laborers who themselves worked on the mines of the area and therefore in view of Government 's policy it should receive preference to an individual bidder.
It was further stated that the benefit accruing out of the contract of royalty collection would be shared by the labourers and workers themselves which would go a long way to improve their socioeconomic conditions and thus ultimately would ameliorate the conditions of the workers who were working hard in quarries since long.
The contention for the appellant is that the Government had merely to confirm the highest bid at the auction by way of formality and was not competent to sanction the contract in favour of someone who had not offered the highest bid at the auction.
Rule 34 of the rules provides that royalty collection contracts may be granted by the Government by auction or tender for a maximum period of two years after which no extension was to be granted.
The procedure for auction is provided by r. 36.
Sub rule 175 (5) thereof provides that no bids shall be regarded as accepted unless confirmed by Government or the competent authority and sub rule (7) provides that on completion of the auction the result will be announced and the provisionally selected bidder shall immediately deposit 25 per cent of the amount of bid for one year and another 25 per cent as security for due observance of the terms and conditions of the lease or contract.
It is admitted for the appellant that on completion of the auction he did not deposit 25 per cent of the bid as security in compliance with the provisions of sub r.
He therefore lost whatever claim he could have had for the final acceptance of his bid by Government and therefore cannot question the grant of the contract to any other person by the Government.
The appellant urges that he held such royalty collection contract for the year 1963 64 and had deposited Rs. 9,250 as security for the due performance of that contract.
On February 12, 1964, over three weeks after the auction, he submitted an application to the Mining Engineer, Jaipur, stating that he had been continuously taking contract for the last three years and that he was depositing Rs. 1,300 and that the balance of the security amount required, i.e. Rs. 9,250 be adjusted against Rs. 9,250 with the Government in connection with the earlier contract.
This letter was not replied to.
The request made in this letter could not possibly be accepted.
The earlier contract was to continue up to March 31, and the security money had to remain with the Government upto that date.
It is only after March 31, that anything could be said with some definiteness as to how much of the security money in deposit would be available to the contractor.
Paragraph 2 of the Form of Agreement of Collection of Royalty on Minor Minerals, prescribed under the rules, and set out in the Schedule to the rules, states that the agreement shall remain in force for a period commencing from first April of a year and ending on March 31 of the next year on which the period of the contract would expire and that the security would be refunded on the termination of the contract.
Para 6 of the Form provides that for the due fulfillment of the terms and conditions of the contract the Contractor shall deposit 25 per cent of the contract money in advance as security which will be refunded on the termination of the contract.
The appellant alleged that there was a practice of adjusting previous security amounts towards the security for the next contract.
The practice is denied on behalf of respondent No. 1 and the practice against the provisions of the rules cannot be recognized as of any binding effect.
It may be mentioned here that the representation which the appellant made to the State Government on April 6, 1964, made no reference to his depositing the security by depositing Rs. 1,300 and by making a request for the adjustment of the balance from the security amount already in deposit and indicates that he too did not consider the request for adjustment of the amount acceptable.
176 There is nothing in r. 36 of the rules which may lead to the conclusion that the Government has to accept the highest bid by formally confirming it or that it cannot grant the contract to any person other than one who had bid the highest.
A bid is not regarded as accepted unless it is confirmed by Government.
The Government has therefore discretion to confirm the bid or not to confirm it.
Further, r. 59 provides for the relaxation of any provision of the rules in the interest of mineral development or better working of mines.
There is the letter dated February 14, 1962 from the Director of Mines and Geology, to All Mining Engineers on the subject of encouragement of cooperative mines and states that cooperative societies ought to be encouraged for mining work also as per directive of the Government of India.
Respondent No. 2 addressed a letter to the Director of Mines and Geology and referred to Government policy for the encouragement of cooperative societies in connection with royalty collection contracts.
The order of Government dated April 1, 1964, after referring to the appellant 's offering the highest bid, stated that the Government was satisfied that the Society, respondent No. 2, was a suitable party for the grant of the said contract.
The view taken by the Government in preferring respondent No. 2 to the appellant for the grant of the contract cannot be said to be arbitrary or without any justification.
The cooperative society is of the labourers who work in the mines and it is obvious that any benefit arising out of the contract would go to the labourers and thus improve their economic position.
In view of the spirit underlying r. 59, Government could therefore relax any such rule which could in any way come in the way of its granting the contract to respondent No. 2.
We therefore hold that the Government was competent to give the contract to respondent No. 2 it being not bound to accept the highest bid at the auction, though usually it accepts such bids.
Another consideration which is decisively against the appellant is that the contract for the collection of royalty for the year 1964 65 is shortly to come to an end and it would not be desirable, even if the appellant 's contentions were acceptable, to interfere with that contract.
Reference, in this connection.
may be made to the decision of this Court in K.N. Guruswamy vs State of Mysore(1) where the appellant was refused a writ solely on the ground that it would have been ineffective, the period of the impugned contract coming to an end after about a fortnight of the order of this Court.
That was a case where on merits the Court was of opinion that the writ should have been issued.
We therefore dismiss the appeal and order the parties to bear their own costs.
Appeal dismissed.
[/INST]The appellant, who was a Ruler of a former Indian State, had money dealings with the respondent.
They referred their disputes to an arbitrator who made his award directing the appellant to pay.
a certain sum of money, in installments.
The award also stated that the existing documents relating to debts on lands would remain as before and would remain as securities till the payment of debts The arbitrator filed the award into court and the court, after notice to the parties passed a decree in terms of a compromise modifying the award.
The respondent started execution proceedings and the court passed a prohibitory order under O.XXI, r. 46 of the Civil Procedure Code, 1908, in respect of the sums payable to the appellant by the Central Government on account of the privy purse; but on the application of the appellant, that order was vacated.
The appellant and respondent filed appeals in the High COurt, against the various orders, and the High Court decided all the appeals against the appellant.
In the appeal to the Supreme Court, it was contended that, (i) as the award affected immovable property of the value of more than Rs. 100, and was not registered, a decree could not be passed in terms the award, (ii) the proceedings under the Indian , were incompetent in the absence of the consent of the Central Government under sections 86(1) and 87B of the Code, and therefore the decree passed in those proceedings was without jurisdiction and void and (iii) the amount receivable by the appellant as his privy purse was a political pension within the meaning of section 60(1)(g) of the Code, and not liable to attachment or sale in execution of a decree.
HELD: (i)The award did not create or of its own force declare any interest in any immovable property and since it did not come within the purview of section 17 of the , was not required to be registered.
[(204 H] (ii) A proceeding under section 14 read with section 17 of the , for the passing of a judgment and decree on an award, does not commence with a plaint or a petition in the nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under section 14(2) cannot be regarded as "sued in any Court otherwise competent to try the suit" within the meaning of section 86.(1) read with section 87B of the Code.
Neither are those provisions of the Code attracted by reason of section 41(a) of the or section 141 of the Code.
It follows that the COurt was competent to entertain the proceedings under section 14 of the and pass a decree in those proceedings though no consent to the institution of the proceedings had been given by the Central Government.
[205 G H; 206 B D] 202 (iii) The amounts of the privy purse of the appellant were not liable to attachment or sale in execution of the respondent 's decree.
[209 C D] The periodical payment of money by the Government to a Ruler of a former Indian State as privy purse on political considerations and under political sanctions and not under a right legally enforceable in any municipal court is strictly a political pension within the meaning of section 60(1)(g) of the Code.
The privy purse satisfies all the essential characteristics of a political pension, and as such is protected from execution under section 60(1) (g).
[209 A C]
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<s>[INST] Summarize the judgementAppeal No. 490 ,of 1962.
Appeal by special leave from the judgment and order dated October 20, 1959 of the Punjab High Court in Regular Second Appeal No. 1591 of 1959.
Kartar Singh Chawla and Harbans Singh, for the appellants.
I. M. Lal and M. R. K. Pillai, for the respondents.
March 24, 1964.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is a defendants ' appeal by special leave against the order of the High Court of Punjab dated October 20, 1959 dismissing summarily second appeal filed by the appellants.
The suit was filed by the respondents for possession of a plot, a house and a Kaur and half share in certain lands as preferential heirs of one Pohla after the death 431 of Pohla 's widow Punjab Kaur on February 7, 1952.
The plaintiffs are Mst.
Nikko, sister of Pohla and Jarnail Singh, son of Mst.
Har Kaur who was another sister of Pohla.
The first appellant Mara is a collateral of 4th degree of Pohla and the other two appellants are Mara 's sons.
The following genealogy gives the relationship of the parties: Sualtani : : : : : : Sohela Baghaila : : : : Mara defendant No.1 : : Pir Bux Jaimal Sunder : : died sonless : : and wifeless : : : : : Mohinder Singh Major : : : Singh Pohla Mst.
Har Kaur Mst.
Nikku defendant defendant (son) (daughter) alias Punjab No.2 No.3 : : Kaur (daughter) : : wife of Santa Shrimati Jarnail son Singh Jat, Punjab of Arjun resident of widow Plaintiff Ayali Kalan, No.2 No.2 Plaintiff No.2 The parties are Jhalli Jats of village Chomon, Tehsil and District Ludhiana.
The plaintiffs claimed that the property was non ancestral and according to the Riwaj applicable to the family, sisters excluded collaterals in respect of both ancestral and non ancestral properties.
It appears that after the death of Panjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole property.
He made gifts to his sons of some of the properties and that is why they were joined in the suit.
Mara and his elder son Mohinder Singh filed a joint written statement in which they raised many pleas the details whereof need not be given here.
They claimed that according to the custom applicable to the family, sister and sister 's sons were excluded from inheritance in respect of properties whether ancestral or nonancestral.
They however claimed that the property was ancestral and denied the genealogy.
The Subordinate Judge, Second Class, Ludhiana framed six issues of which issues No. 2, 3 and 4 alone are important in this appeal.
Those issues are: "2.
Whether the property is ancestral qua Pohla and Mara?" "3.
Whether the question of the nature of the property is material for the decision of tons case?" 432 "4.
Whether the plaintiffs are preferential heirs to the estate of Mst.
Panjabo widow of Pohla?" The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it.
We have not been referred to any portion of this evidence in this appeal.
The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral.
On the third issue he referred to question No. 52 from the Riwaj i am relating to the settlements of 1882 and 1909 1910 (Exts.
and D 2) in which it is stated that among the Jhalli Jats of Tehsil Ludhiana sisters or sisters ' sons never succeed.
He, however, held on the authority of Ahmad vs Mohammad and others(1) that since question refers only to ancestral property and that the nature of the property was thus material.
On the fourth issue he held on the strength of the answer to question No. 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable to non ancestral property the personal law would apply unless special custom was proved.
He therefore placed the burden on ,he defendants relying upon Harnam Singh vs Mst.
Gurdev Kaur, (2) MSt.
Sukhwant Kaur vs section Balwant Singh and others(3) and Mst.
Jeo vs Ujagar Singh.(4) As he had already rejected the oral evidence and there was no other proof that the property was ancestral, he decreed the suit.
On appeal the District Judge, Ludhiana remitted three issues to the trial Judge and they were as follows: "Issue No. 4: Whether there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well as non ancestral left by the Pohla in preference to Mara defendant?" "Issue No. 4A: Whether under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well as non ancestral property of Pohla deceased?" (1) A.I.R. 1936 Lah.
(2) (3) A.I.R. 1951 Simla 242.
(4) 433 "Issue No. 4B: If the custom set out by the parties is not proved, whether the plaintiffs are preferential heirs to Mara defendant under personal law applicable to the parties?" On these issues the report of the Subordinate Judge, First Class, Ludhiana was against the contention of the defendants.
The learned District Judge held, in agreement with the Subordinate Judge, that the lands in suit were not ancestral and he held also that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sisters ' sons in respect of non ancestral property.
He referred to Exts.
9, 10, 12 and 13 which were judgments in other cases as evidencing the contrary.
He accordingly dismissed the appeal.
The Second appeal filed thereafter was dismissed summarily by the High Court.
The first question to decide is whether these lands are ancestral or non ancestral.
The concurrent finding of the two courts below is that none of the properties in dispute is ancestral.
The High Court prima facie saw no reason to differ from any of the conclusions of the courts below.
It is contended on the strength of a Kafiat of Thulla Malla prepared at the settlement of 1882 that this land came into possession of one Sekhu who was admittedly a common ancestor in the family and the property, which is now in dispute, must be regarded as ancestral.
It is contended that the finding is vitiated because the two courts below did not read this Kafiat alongwith the extracts from the Records of rights of the years 1882 and 1909 1910 in which the names of Jaimal and Sunder, sons of Baghela, and of Pir Bux son of Sohila are shown as persons in enjoyment of half shares in these lands.
It is argued that the lands in suit are thus proved to be ancestral as they belonged to Sekhu the common ancestor and the Riwaj i am as disclosed in question No. 52 applies to the case.
It appears, however, from the Kafiat as well as the Record of Rights that these lands were once abandoned and when people came back Sekhu got possession of some lands but in addition to these Sekhu 's descendants had acquired the share of one Dalpat in the Thulla and subsequently the entire estate of another holder, namely, Maidas was purchased by Jaimal, Sunder and Sohila.
This shows that the lands in dispute are not entirely ancestral but are made up of lands which may be described as ancestral and non ancestral.
Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and nonancestral, portions cannot be separated they must be regarded 434 as non ancestral, unless it is shown which are ancestral and which are not.
This was laid down by the Privy Council in Avtar Singh vs Thakar Singh(1).
It was held by Mr. Justice Kapur (as he then was) in Indar Singh vs Gulzara Singh and others(2) basing himself upon Saif ul Rahman vs Mohammand Ali Khan(3) and Jagtar Singh vs Raghbir Singh(4) that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent.
Once these conclusions are reached, it is quite obvious that the decision of the District Judge not to apply the answer to question No. 52 to non ancestral land was right.
It may be mentioned that the answers to questions refer to ancestral property only and this is now firmly established.
In fact, it was not denied at the hearing.
It is, however, contended that there are decisions to show that the right of the collaterals was recognised in respect of even non ancestral land to the exclusion of sisters and their sons.
No ruling from the Law Reports has been brought to our notice.
Some cases from the Ambala and Amritsar Dis tricts are cited but those obviously cannot be any authority, because, as is well known, custom in the Punjab changes from district to district, tehsil to tehsil and pargana to pargana.
It has been ruled in this Court that paragraph 24 of Rattingan 's Digest which excludes sisters from inheritance from non ancestral property is too widely stated.
(See Ujagar Singh vs Mst.
Jeo(5) and (Waryam Singh and Others vs Smt.
Sukhi and another) (Civil Appeal No. 452 of 1961 decided on April 23, 1963).
The learned District Judge cited some instances in which the sisters and sisters ' sons were allowed to succeed in preference to collaterals.
One of the documents filed by the defendants in the suit (Ext.
D 6) also supports the contention of the respondents.
In this view of the matter it cannot be said that the application of the personal law to the family by the courts below was erroneous.
It is contended lastly that the rulings only show that collaterals of 5th degree are excluded and there is no case showing that a collateral of 4th degree was excluded.
If personal law applies, as it does, a collateral of the 4th degree is also excluded.
In our judgment this appeal must fail and is accordingly dismissed with costs.
Appeal dismissed.
(1) 35 I.A. 206.
(2)A.I.R. (3) I.L.R (4) I.L.R. (5) (1959 Supp. 2 S.C.R. 781.
[/INST]The petitioner was selected as a Lower Division Clerk under the Madras Ministerial Service Rules in 1949, and was posted in South Kanara District.
He was promoted as upper division clerk on April 2, 1956 and according to him, he should have teen promoted much earlier.
According to the State, the Petitioner was considered for inclusion in the eligibility list from 1955 onwards, but was not selected as he was not considered fit.
The State admitted that he was promoted as Upper Division clerk with effect from April 2, 1956, but alleged that this was on a temporary basis.
He was later reverted and then again posted as temporary Upper Division clerk.
In August, 1957, the petitioner was considered and included in the eligibility list at serial No. 14.
This list was regularised on December 12, 1957, in accordance with Madras State and Subordinate Service Rules, with effect from October 19, 1957.
According to the petitioner this resulted in the loss of benefit of service and increments.
In the meantime, reorganisati;on of States took place under the and South Kanara District went to the new Mysore and the petitioner was allotted to it.
On May 11, 1957, the Government of India addressed a memorandum to all State Governments and in respect of departmental promotion it said that "the question whether any protection should be given in respect of rules and conditions applicable to Government Servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion was also considered.
The Government of India agree with the view expressed on behalf of the State res presentatives that it would not be appropriate to provide for any protection in the matter of these conditions.
It was urged on behalf of the petitioner (i) that the Mysore General Services Recruitment Rules, 1959, were not made with the previous approval of the Central Government under section 115(7) of the States Re organisation Act, and, therefore, do not govern the petitioner in so far as the conditions of service have teen varied to his disadvantage and (ii) that the Madras Government had, prior to November 1, 1956, by varoius orders, reduced the petitioner in rank in violation of article 311(2) of the Constitution and article 16.
550 Held: (i) In the setting in which the proviso to section 115(7) of the Act is placed, the expression "previous approval" would in clude a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government.
article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules.
The proviso to section 115(7) of the Act limits that power, but that limitation is removable by the Central Government by giving its previous approval.
The broad purpose underlying the Proviso to section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government.
In the memorandum, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion.
This amounted to previous approval within the proviso to section 115(7).
By this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information.
Therefore, it must be held that the rules were validly made.
In re Bosworth and Corporation of Gravesend, [1905] 2 K.B. 426 and C. K. Appamna vs State of Mysore, W.P. No. 88 of 1962, held inapplicable.
(ii) The petitioner failed to show, how article 16 was in fringed before he was allotted to the new Mysore State.
The State in its reply had asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion.
It was for the competent authorities to judge the merits of the petitioner.
Therefore, it must be held that infringement of article 16 was not established.
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<s>[INST] Summarize the judgementivil Appeal No. 1524 of 1982.
From the Judgment and Order dated 5.9.1977 of the Hima chal Pradesh High Court in F.A.O. No. 8 of 1975.
A.B. Rohtagi, Mrs. Urmila Kapoor, Miss section Janani and Naresh K. Sharma for the Appellant.
Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The appellant Vishwanath Sood undertook the construction of a Farmers ' Community Centre Building at Thanedhar by an agreement entered into with the Union of India and the State of Himachal Pradesh dated 20.6.1968.
Certain disputes arose between the parties to the agreement and in terms of clause 25 of the agreement, they were re ferred to a sole arbitrator.
The contractor submitted a claim of Rs. 1,28,000 while the respondents also submitted a counter claim.
By an award dated 20.3.1972, the abritrator awarded an amount of Rs.31,932 to the contractor and a sum of Rs.21,504 to the respondents.
The award was filed in the court.
The contractor filed an application in the court for modification or correction of the award in respect of three items of his claim ( 1, 8 and 9) and item No. 1 of the respondent 's counter claim.
The Department also filed its objections to the award and prayed that a sum of Rs.8,080.29 should be awarded in favour of the Department or the award remitted to arbitrator.
The 292 learned single Judge dismissed the objections of the re spondents.
So far as the appellant 's prayers were concerned, he allowed the same only in respect of item 1 of the re spondent 's counter claim.
He held that the arbitrator was not justified in granting to the Government a sum of Rs.20,000 against the contractor.
Both the contractor and the respondents preferred appeals to the Division Bench.
The Bench reversed the order of the learned single Judge.
It set aside the order of the learned single Judge in so far as the sum of Rs.20,000 was deleted thereby from the award of the arbitrator.
The award was restored to its original terms and the contractor was held entitled to interest at 6 per cent on the amount found due to him after adjusting the sum awarded by the arbitrator in favour of the Government against the sum awarded in favour of the contractor.
The contractor has preferred this appeal by special leave from the order of the Division Bench of the High Court.
Learned counsel for the appellant pressed the conten tions in respect of the four items to which he had objected before the learned single Judge and the Division Bench.
Three of these items pertain to the claims put forward by the contractor which were rejected by the arbitrator and held by the courts to have been rightly rejected.
The first claim (item No. 1) made by the contractor was of a sum of Rs. 12,720 which, according to him, was the loss incurred by him by reason of the Department 's delay in handing over the site to him for executing the contract.
The learned single Judge discussed this aspect of the matter at length.
He observed that, on this point, there was, on the one hand, oral evidence adduced on behalf of the Department while there was only the bare denial of the contractor on the other.
He pointed out that the arbitrator had fully consid ered the matter and that it was not open to the court to re assess the evidence and that there was no error apparent on the face of the record.
The second claim (item No. 8) was for a sum of Rs.6,172 being the amount kept as security with the respondent.
In respect of this item also the learned single Judge discussed the evidence which showed that the security amount had been properly adjusted by the Department which had been constrained to take up the work departmental ly at the cost and risk of the contractor.
He held that this was an aspect which had been considered by the arbitrator and a proper conclusion arrived at.
The third claim put forward by the petitioner (item No. 9) was for a sum of Rs.30,000, claimed as compensation for an amount spent by the contractor for the purchase of a truck for this work.
The learned single Judge here again pointed out that no material had been placed before 293 the arbitrator by the contractor to show that he was enti tled to the amount and that, in any event, having regard to the fact that the work was executed by the Department at the cost and risk of the contractor, there was no question of the contractor preferring any claim in respect of this item.
The above three claims of the petitioner were also rejected by the Division Bench which pointed out that the award made by the arbitrator was not a speaking award and that the face of the award did not show any error.
We do not think that so far as these claims are concerned, that the appellant has any arguable case at all.
As pointed out by the Division Bench of the High Court, the award was a non speaking award.
The arbitrator had considered the materials placed before him and had arrived at his conclusions.
The award does not on the face of it disclose any error, much less any error of law, which needs to be set fight.
We therefore, hold that the High Court was justified in affirming the award so far as the rejection of these three claims is concerned.
The position in regard to the counter claim of the respondents which was allowed by the arbitrator and the Division Bench stands on a different footing.
The respond ents ' claim before the arbitrator was that they were enti tled to receive from the contractor "Rs.24,000 on account of payment of 10 per cent compensation on the tendered amount for not executing the work in accordance with the terms and conditions of the agreement".
As against this claim the arbitrator awarded the respondents a sum of Rs.20,000.
The learned single Judge took the view that having regard to clause 2 of the contract (pertaining to the claim by the respondent) read with clause 25 it was clear that any com pensation under clause 2 could be adjudicated upon only by the superintending Engineer or the Development Commissioner and that it was not open to the arbitrator to have entered upon a reference in regard to this claim at all.
In order to appreciate the finding of the learned single Judge it will be useful to set out clauses 2 and 25 of the conditions of contract on which his decision was based: "Clause 2: Compensation for delay: The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be deemed to be the essence of the contract on the part of the contractor and shall be reckoned from the fifteenth day after the date on which the order to commence the work is issued to the contractor.
The work shah throughout the stipulated period of the contract be proceeded with all due diligence and the contractor shall pay as compensation an amount 294 equal to one per cent, or such smaller amount as the Superintending Engineer (whose decision in writing shall be final) may decide on the amount of the estimated cost of the whole work as shown in the tender for every day that the work remains uncommenced, or unfinished, after proper dates.
And further, to ensure good progress during the execution of the work, the contractor shall be bound in all cases in which the time allowed for any work exceeds, one month (save for special jobs to complete one eighth of the whole of the work before one fourth of the whole time allowed under the contract has elapsed; three eighth of the work, before one half of such time has elapsed, and threefourth of the work, before three fourth of such time has elapsed.
However, for special jobs if a time schedule has been submitted by the Contractor and the same has been accepted by the Engineer in charge, the contractor shall comply with the said time schedule.
In the event of the con tractor failing to comply with this condition, he shall be liable to pay as compensation an amount equal to one per cent or such smaller amount as the Superintending Engineer (whose decision in writing shall be final) may decide on the said estimated cost of the whole work for every day that the due quantity of work remains incomplete; provided always that the entire amount of compensation to be paid under the provisions of this clause shall not exceed ten per cent, on the estimated cost of the work as shown in the tender." "Clause 25: Settlement of disputes by Arbitra tion: Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, designs drawings and instructions hereinbefore men tioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instruction, order, or these condi tions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitra tion of the person appointed by the Chief Engineer, Himachal Pradesh Public Works De partment . . " 295 The Division Bench did not agree with the view of the learned single Judge.
It pointed out that, while in the ordinary course, the rate of compensation payable by the contractor is one per cent of the amount of the estimated cost of the whole work, under clause 2, the Superintending Engineer is authorised to depart from this figure and deter mine the compensation at a smaller amount if there are any extenuating circumstances in favour of the contractor.
The question however was whether the compensation determined under clause 2 is excluded from the scope of arbitration under clause 25.
The Division Bench answered this question in the negative.
It pointed out that the sine qua non of clause 2 was that the contractor should have been guilty of delay in commencing the work or in completing it but the clause did not specify either the authority or the procedure for determining whether the contractor is responsible for the default.
Observing that there can be a serious dispute in a particular case as to the person who is responsible for the delay, the Bench took the view that the determination of this dispute cannot be excluded from the scope of clause 25.
The Bench observed that inasmuch as a bona fide dispute can be raised by the contractor in regard to his liability to compensation under clause 2 and no machinery is provided in clause 2 for the resolution of that dispute, there is ample justification for holding that resort can be had to arbitra tion under clause 25.
The statement in clause 2 that the decision of the Superintending Engineer is final, according to the Bench, merely constituted a declaration that no officer in the Department could disturb his quantification.
But this finality cannot be construed as extending to ex clude the jurisdiction of the arbitrator under clause 25.
On this view of the matter, the Division Bench found itself unable to agree with the learned single Judge that the arbitrator had traveled outside his jurisdiction in awarding a sum of Rs.20,000 as compensation to the Government against the contractor for the delay in executing the work.
It will be seen from the narration above that so far as this item was concerned, both parties proceeded on the footing that the claim of the Government was a claim under clause 2 and that the arbitrator had awarded the sum only in terms of clause 2.
This is also borne out by the fact that the claim of the Department was based on a percentage of the total cost of the work and the restriction of the claim to 10% also appears to have been the result of the proviso to clause 2.
The award, therefore, on a fair reading of it, contains a grant by the arbitrator of compensation to the Government in terms of clause 2.
It is therefore open to the parties to urge before this Court, as they did before the High Court also, that, on a proper construction of clauses 2 and 25, 296 this award was not justified.
It is in this respect that this counter claim of the Department stands on a different footing from the earlier claims of the contractor which have been rejected and which, we have held above, have been rightly rejected.
Learned counsel for the appellants contends that the terms of clause 2 clearly envisage the determination of the amount of compensation for the delay in the execution of the work only by the Superintending Engineer and specifically mentions that the decision of the Superintending Engineer in writing shah be final.
The opening words of clause 25: "Except where otherwise provided in the contract" clearly take out of the purview of clause 25 any dispute in respect of a claim under clause 2.
He submitted that the clause authorised only the Superintending Engineer to go into the question whether there is any delay or not and the reasons therefore and to determine the rate at which compensation should be charged from the contractor.
If the Engineer in charge levies a compensation under clause 2, the contractor can apply to the Superintending Engineer.
If the Superin tending Engineer finds that there was no fault on the part of the contractor at all he could waive the compensation under clause 2 and that cannot be challenged by the Depart ment before the arbitrator.
Per contra, where the Superin tending Engineer confirms that there has been a delay for which compensation should be charged, it will not be open to the contractor to challenge the conclusion before the arbi trator.
Learned counsel also submitted that even if clause 25 were to be held applicable, the question of submitting a dispute in this regard to the arbitrator could only arise if there had been a determination and a dispute under clause 2.
Clause 2 envisages that the Engineer in charge should, in appropriate cases, levy a compensation at the rate specified in that clause.
If he did, it was open to the contractor to dispute the same and approach the Superintending Engineer to reduce or waive the compensation for any reason whatsoever.
Or, it may be that, even where the Engineer in charge levied no compensation, the Superintending Engineer could, either on his own motion or on being moved by the department, after considering the facts charge a compensation with the quantum of which the department may not be satisfied in which event a dispute could arise.
But in the present case neither the Engineer in charge nor the Superintending Engineer had determined any liability at all under clause 2.
There was no compensation levied against which there was any protest by the contractor, and there was no matter submitted to the Superintending Engineer for determination.
In these circum stances, the submission of the learned counsel for the appellant is that there was no dispute at all between the parties on 297 the question of compensation and that a dispute cannot be said to arise merely because a counter claim is for the first time put forward by the Department before the arbitra tor.
On the other hand, the learned counsel for the Depart ment contended that clause 2 is in the nature of a penal clause which automatically takes effect irrespective of any default.
He described it as an "agreed penalty" clause.
He stated that the clause made the contractor liable for the penalty prescribed therein whenever there was a delay in the completion of the contract, whatsoever might have been the reason therefore, the question as to whether the contractor was at default or not being totally immaterial.
The Depart ment was, therefore, entitled to automatically deduct from the bills payable to the petitioner the compensation or penalty at the rate mentioned in clause 2 or such reduced amount as may be determined in a particular case by the Superintending Engineer and that if the contractor objected to this deduction that would give rise to a dispute which can be the subject matter of arbitration under clause 25.
He therefore submitted that the Division Bench has rightly construed the terms of the contract and confirmed the award made by the arbitrator.
We have gone through the judgment of the Division Bench of the High Court and we have also considered the arguments advanced on both sides.
With great respect, we find our selves unable to agree with the interpretation placed by the Division Bench on the terms of the contract.
Clause 2 of the contract makes the time specified for the performance of the contract a matter of essence and emphasises the need on the part of the contractor to scrupulously adhere to the time schedule approved by the Engineer in charge.
With a view to compel the contractor to adhere to this time schedule, this clause provides a kind of penalty in the form of a compensa tion to the Department for default in adhering to the time schedule.
The clause envisages an amount of compensation calculated as a percentage of the estimated cost of the whole work on the basis of the number of days for which the work remains uncommenced or unfinished to the prescribed extent on the relevant dates.
We do not agree with the counsel for the respondent that this is in the nature of an automatic levy to be made by the Engineer in charge based on the number of days of delay and the estimated amount of work.
Firstly, the reference in the clause to the require ment that the work shall throughout the stipulated period of the contract be proceeded with due diligence and the refer ence in the latter part of the clause that the compensation has to be paid "in the event of the contractor failing to comply with" the prescribed time 298 schedule make it clear that the levy of compensation is conditioned on some default or negligence on the part of the contractor.
Secondly, while the clause fixes the rate of compensation at 1 per cent for every day of default it takes care to prescribe the maximum compensation of 10 per cent on this ground and it also provides for a discretion to the Superintending Engineer to reduce the rate of penalty from 1 per cent.
Though the clause does not specifically say so, it is clear that any moderation that may be done by the Super intending Engineer would depend upon the circumstances, the nature and period of default and the degree of negligence or default that could be attributed to the contractor.
This means that the Superintending Engineer, in determining the rate of compensation chargeable, will have to go into all the aspects and determine whether there is any negligence on the part of the contractor or not.
Where there has been no negligence on the part of the contractor or where on account of various extraneous circumstances referred to by the Division Bench such as vis major or default on the part of the Government or some other unexpected circumstance which does not justify penalising the contractor, the Superintend ing Engineer will be entitled and bound to reduce or even waive the compensation.
It is true that the clause does not in terms provide for any notice to the contractor by the Superintending Engineer.
But it will be appreciated that in practice the amount of compensation will be initially levied by the Engineer in charge and the Superintending Engineer comes into the picture only as some sort of revisional or appellate authority to whom the contractor appeals for redress.
As we see it, clause 2 contains a complete machin ery for determination of the compensation which can be claimed by the Government on the ground of delay on the part of the contractor in completing the contract as per the time schedule agreed to between the parties.
The decision of the Superintending Engineer, it seems to us, is in the nature of a considered decision which he has to arrive at after con sidering the various mitigating circumstances that may be pleaded by the contractor or his plea that he is not liable to pay compensation at all under this clause.
In our opinion the question regarding the amount of compensation leviable under clause 2 has to be decided only by the Superintending Engineer and no one else.
The Division Bench has construed the expression in clause 2 in parenthesis that "the Superintending Engineer 's decision shall be final" as referring only to a finality qua the department; in other words, that it only constitutes a declaration that no officer in the department can determine the quantification and that the quantum of compensation levied by the Superintending Engineer shall not be 299 changed without the approval of the Government.
After refer ring to certain judicial decisions regarding the meaning of the word "final" in various statutes, the Division Bench concluded that the finality cannot be construed as excluding the jurisdiction of the arbitrator under clause 25.
We are unable to accept this view.
Clause 25 which is the arbitra tion clause starts with an opening phrase excluding certain matters and disputes from arbitration and these are matters or disputes in respect of which provision has been made elsewhere or otherwise in the contract.
These words in our opinion can have reference only to provisions such as the one in parenthesis in clause 2 by which certain types of determinations are left to the administrative authorities concerned.
If that be not so, the words "except where other wise provided in the contract" would become meaningless.
We are therefore inclined to hold that the opening part of clause 25 clearly excludes matters like those mentioned in clause 2 in respect of which any dispute is left to be decided by a higher official of the Department.
Our conclu sion, therefore, is that the question of awarding compensa tion under clause 2 is outside the purview of the arbitrator and that the compensation, determined under clause 2 either by the Engineer in charge or on further reference by the Superintending Engineer will not be capable of being called in question before the arbitrator.
We may confess that we had some hesitation in coming to this conclusion.
As pointed out by the Division Bench, the question of any negligence or default on the part of the contractor has many facets and to say that such an important aspect of the contract cannot be settled by arbitration but should be left to one of the contracting parties might appear to have far reaching effects.
In fact, although the contractor in this case might object to the process of arbitration because it has gone against him, contractors generally might very well prefer to have the question of such compensation decided by the arbitrator rather than by the Superintending Engineer.
But we should like to make it clear that our decision regarding non arbitrability is only on the question of any compensation which the Government might claim in terms of clause 2 of the contract.
We have already pointed out that this is a penalty clause introduced under the contract to ensure that the time schedule is strictly adhered to.
It is something which the Engineer incharge enforces from time to time when he finds that the contractor is being recalcitrant, in order to ensure speedy and proper observance of the terms of the contract.
This is not an undefined power.
The amount of compensation is strictly limited to a maximum of 10% and with a wide margin of discretion to the Superintending Engineer, who might not only reduce the percentage but who, we think, can even reduce it 300 to nil, if the circumstances so warrant.
It is this power that is kept outside the scope of arbitration.
We would like to clarify that this decision of ours will not have any application to the claims, if any, for loss or damage which it may be open to the Government to lay against the contrac tor, not in terms of clause 2 but under the general law or under the Contract Act.
As we have pointed out at the very outset so far as this case is concerned the claim of the Government has obviously proceeded in terms of clause 2 and that is the way in which both the learned single Judge as well as the Division Bench have also approached the ques tion.
Reading clauses 2 and 25 together we think that the conclusion is irresistible that the amount of compensation chargeable under clause 2 is a matter which has to be adju dicated in accordance with that clause and which cannot be referred to arbitration under clause 25.
As stated earlier, an alternative ground was urged by the learned counsel for the appellant that, no penalty under clause 2 having been imposed by the respondents in the first instance, no dispute had at all arisen which could have been referred to arbitration.
This point was not taken before the High Court and the relevant facts are not on record.
That apart, in the view we have taken, it is unnecessary to express any opinion on this argument and we refrain from doing so.
For the reasons above mentioned, we restore the judgment of the learned single Judge.
In the result, the amount of compensation of Rs.20,000 awarded by the arbitrator in favour of the Government will stand deleted.
The amount of interest payable to the contractor, if any, will be worked out on the basis of the award as modified by us above.
The appeal is allowed.
We however make no order as to costs in the circumstances of the case.
N.V.K. Appeal allowed.
[/INST]On the basis of a vigilance enquiry against Kailash Nath, respondent, pertaining to the purchase of sign boards by him while working as Executive Engineer in the State Public Works Department, a First Information Report was lodged against him in August 1985.
The respondent challenged the F.I.R. in the High Court on the ground that the same having been lodged about three years after his retirement in October 1982 and about six years after the event of purchase in 1979.
was in the teeth of proviso (3) to Rule 2.2(b) of the Punjab Civil Service Rules, Volume II, which provided that no judicial proceedings if not instituted while the officer was in service, shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution.
The same ground was taken by Mangal Singh Minhas, respondent, when a challan was filed against him.
The High Court, relying on its earlier decision, quashed the First Information Report and the challan.
Dismissing the State appeal against Kailash Nath and allowing it against Mangal Singh Minhas, this Court, HELD: (1) Any rule framed under Article 309 has to be confined to recruitment and conditions of service of persons mentioned therein.[916E] (2) The expression "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it,in matters like pension etc.
PG NO 911 PG NO 912 (3) Rule 2.2.
is in Chapter II of the Punjab Civil Service Rules which deals with ordinary pension.
There can be no manner of doubt that making provision with regard to pension falls within the purview of "conditions of service".
[918D] (4) Whether or not a government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service.
[917D] (5) Even on a plain reading of Rule 2.2, it is apparent that the intention of framing the said rule was not to grant immunity from prosecution to a government servant, if the conditions mentioned therein are satisfied.
[918C] (6) Making a provision that a government servant, even if he is guilty of grave misconduct or negligence which constitutes an offencepunishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive.
[917D E] (7) On the face of it, the government servants cannot constitute a class by themselves so as to bring their case within the purview of reasonable classification, if the purpose of granting immunity from prosecution is ensuring peace of mind in old age.
[918B] (8) Even if in a given case a proviso may amount to a substantive provision, making of such a substantive provision, will have to be within the framework of Article 309.
If a rule containing an absolute or general embargo on prosecution of a government servant after his retirement for grave misconduct or negligence during the course of his service does not fall within the purview of laying down conditions of service under Article 309, such a provision cannot in the purported exercise of power under Article 309 be made by either incorporating it in the substantive clause of a rule or in the proviso thereto.
[919C D] (9) Even if on first impression Rule 2.2 may appear to be placing an embargo on prosecution it has to be interpreted by taking recourse to the well settled rule of reading down a provision so as to bring it within the framework of its source of power, without, of course frustrating the purpose for which such provision was made.
This purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if PG NO 913 a government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose or an event which took place more than four years before such institution the government will not be entitled to exercise the right conferred on it by the substantive provision contained in clause (b) with regard to pension of such a government servant.
The word "such" in the beginning of the third proviso also supports this interpretation.
[919D H;920A] (10) By applying the role of interpretation with regard to a beneficent legislation, a benefit never intended to be conferred cannot be conferred.
[923D] (11) It is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case.
In this view of the matter.
the appeal against Kailash Nath is dismissed whereas the appeals against Mangal Singh Minhas are allowed.
[924F] Des Raj Singhal vs State of Punjab, ; State of Madhya Pradesh & Ors.
vs Shardul Singh, ; I.N. Subba Reddy vs Andhra University, ; ; M/s. Ram Narain Sons Ltd. vs Asstt.
Commissioner of Sales Tax and Others, ; ; Abdul Jabar Butt vs State of Jammu & Kashmir, ; ; Ishverlal Thanorelal Almaule vs Motibhai Nagjibhai [1966] 1 SCR 367; P.P. Venkatavardan vs The State of Tamil Nadu by the Deputy Superintendent of Police, Vigilance and Anti corruption Vellore, [1979] 23 MLJ (Crl.) 275; State of Punjab vs Charan Singh, ; ; Madhashwardhari Singh and Another vs State of Bihar, AIR (1986) Patna (Vol.73) page 324, referred to.
</s>
|
<s>[INST] Summarize the judgementivil Appeal Nos.
2316/69 and 1598/70.
From the Judgment and order dated 14/17/18th March, 1969 of the Gujarat High Court in S.C.A. No. 729/68.
908 R. H. Dhebar and M. N. Shroff for the Appellants in C.A. 2316/69.
D. V. Patel, M. V. Goswami and Ambrish Kumar for RR 1 5 in C.A. 2316/69 and RR.
1 4 in C.A. No. 1598/70.
The Judgment of the Court was delivered by DESAI, J.
These two appeals by certificate under article 133(1)(c) of the Constitution arise from a judgment rendered by the Gujarat High Court in Special Civil Application No. 720/68, being a petition under article 226 of the Constitution challenging the validity of a notification issued by the Government of Gujarat on 10th october 1967 under section 6 of the Land Acquisition Act, 1894 ( 'Act ' for short).
Civil Appeal No. 2316/69 is preferred by the original respondent No. 2 Gujarat State Transport Corporation, and the cognate Civil Appeal No. 1598/70 is preferred by the State of Gujarat, the first respondent in the petition.
As both the appeals arise from the same proceedings and raise identical contentions they were heard together and are being disposed of by this common judgment.
A notification under section 4 of the Act was issued by the former Governent of Bombay on 10th October 1952 notifying that final plots 41, 42 and 43 were likely to be needed for a public purpose, viz., State Transport.
The respondents who are tenants of different parcels of land comprised in the aforementioned final plots objected to the proposed acquisition.
Soon after filing the objections under section 5A of the Act the respondents fild Civil Suit No. 1262/53 in the Court of Civil Judge, Second Division, Ahmedabad, for a declaration that the notification under section 4 was illegal and ultra vires and for an injunction restraining the respondent State from proceeding with the acquisition of the lands in possession of the respondents.
During the pendency of this suit the then Government of Bombay, after considering the report submitted under section 5A, made a declaration under section 6 as per the notification dated 14th August 1953 declaring, inter alia, that final plots 41, 42 and 43 were required for the purpose of State Transport.
The respondents amended their plaint adding a relief for quashing the notification under section 6.
The suit filed by the petitioners was dismissed by the trial court and first and second appeals did not meet with success.
They carried the matter to this Court and succeeded as per judgment reported in Valjibhai Muljibhai Soneji & Anr.
vs The State of Bombay (now Gujarat) & Ors.(1).
As per that judgment this Court decreed the plaintiff 's suit which would imply that this Court quashed both notifications under sections 4 and 6.
Reading the judgment as a whole it 909 appears that the validity of section 4 notification was upheld and only the notification under section 6 was struck down.
In the mean timn on the bifurcation of the erstwhile State of Bombay these land acquisition proceedings came within the cognizance of Government of Gujarat and when the State Government became aware some where in 1965 about the error in the decree, Review Applications Nos. 11 and 12 of 1965 were made for correcting the decree.
This Court granted the applications and modified the decree on 13th September 1965.
The Government taking its clue from the judgment of this Court which invalidated section 6 notification on the ground that the acquisition having been made for the benefit of a Corporation, though for public purpose, is bad because no part of the compensation is to come out of the public revenue and provisions of Part VII of the Land Acquisition Act have not been complied with, decided as per its letter dated 22nd August 1966 to contribute Re. 1/ , which was subsequently raised to Rs. 500/ towards payment of compensation.
The Government, however, felt that as long time has elapsed since the earlier report under section 5A was submitted by the Collector, a fresh enquiry should be made Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1st August 1966 intimating to the respondents that if they so desired the may submit their further objections by or before 16th August 1966.
Complying with this notice the respondents submitted further objections on 31st August 1966 and they were also given a personal hearing.
After examining the report submitted by the enquiry officer the Government of Gujarat issued a notification under section 6 on 10th October, 1967.
The respondents questioned the validity and legality of this notification in the petition filed by them on 14th February, 1968.
Respondents questioned the validity of the impugned section 6 notification on the only ground that it was issued more than 15 years after the date of section 4 notification and thus it had been issued after an unreasonable delay and it was illegal and void.
While this was the only contention which found favour with the High Court, in reaching this conclusion the High Court, after taking note of the fact that there was no express provision in the Act requiring that the notification under section 6 must be issued within a reasonable time after issue of section 4 notification, primarily relied upon the postulate that every statutory power must be exercised reasonably, a doctrine too finally entrenched in our jurisprudence to brook any refutation which would assist in raising the implication that section 6 notification must follow within a reasonable time 910 after issue of section 4 notification.
The Court also drew support from the scheme of sections 4, 5A and 6 as well as the history of the legislation.
On behalf of the appellants it was pointed out to the High Court that in view of the provisions contained in sub section
(2) of section 4 of the Land Acquisition (Amendment and Validation) Act, 1967 ( 'Amendment Act ' for short), as well as the proviso to section 6(1) also introduced by the same amendment Act the situation as has arisen in this case is not likely to arise and the apprehended mischief is not likely to be committed in future and, therefore, the Court should not go in search of the fetters on the power of the Government to issue section 6 notification, in the absence of any express provision, by implication that statutory power must be exercised within a reasonable time.
It was further submitted on their behalf that once the legislature has clearly permitted a thing to be done within the time specified in the statute it would be impermissible by a process of interpretation to reduce the statutory period by implying a further fetter on the power of the Government and that would be the effect if the contention on behalf of the respondents was accepted.
In other words, as the legislature has now provided that in respect of a notification issued under section 4 before the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, no declaration under section 6 shall be made after the expiry of two years from the commencement of the aforesaid Ordinance, and futher that in case of section 4 notification issued after the commencement of the Ordinance a statutory limit of three years is fixed within which declaration under section 6 can be made, the apprehended arbitrary exercise of power is thwarted and the Court should not further restrict or curtail the power of the Government to issue notification under section 6 within the time prescribed by the statute.
The High Court was of the opinion that if the power to make a declaration under section 6 is exercised after an unreasonable delay from the date on which notification under section 4 is issued such exercies of power would be invalid and accordingly struck down the notificatio under section 6.
Hence these two appeals.
A preliminary objection was raised by the learined counsel for the respondents in both the appeals contending that as the appellants in both the appels failed to seek within the prescribed time substitution of the heirs and legal representatives of respondent 5 who died on 8th March, 1970 during the pendency of the appeal in this Court, in the circumstances of the case these appeals would abate as a whole.
Undoubtedly, respondent 5 who is described in the cause title of the Memos.
of Appeals as "Ramesh Ramjibhai, Manager, Ramesh Restaurant, a joint hindu family business", died on 8th March 1970.
what 911 appears to have happened thereafter is that applications were made by the appellants under Order 22, Rule 10, Code of Civil Procedure, for bringing Shri Krishnakant Ramjibhai, Manager of Ramesh Restaurant, a joint hindu family business, on record in place of deceased respondent 5.
According to the appellants the deceased respondent 5 had filed the original petition in his capacity as manager of joint hindu family business and on his death as the interest devolved upon the succeeding manager of the joint hindu family business, applications under order 22, rule 10, C.P.C. were made to bring the person on record on whom the interest devolved pending the appeal.
Mr. D. V. Patel took serious exception to the procedure adopted by the appellants and there is some merit in this criticism.
In fact, when Ramesh Ramjibhai who filed the initial petition in his capacity as karta of the undivided hindu family business died during the pendency of the appeal, proper applications should have been made by the appeal, proper applications should have been made by the appellants under O. 22, r. 4, to substitute heirs of Ramesh Ramjibhai who was respondent 5 in the appeals before this Court.
In case of death of a party to a proceeding who is joined in his capacity as karta of an undivided hindu family, if the undivided hindu family continues to be in existence the succeeding karta can be substituted for the deceased karta of the family and that would be sufficient compliance with Order 22, r. 4.
What appears to have been done is to make applications under O. 22, r. 10 and those applications appear to have been granted subject to just exceptions.
The applications appear to have been made after the prescribed period of limitation, and in order to avoid seeking condonation of delay for setting aside abatement, O 22, r. 10 appears to have been invoked.
Mr. Patel is right in saying that this was a device but in any event if proper applications were made under O. 22.
r. 4 the gentleman who became the karta of the undivided hindu family after the death of the former karta could have been substituted on record for the deceased respondent 5.
In any event, succeeding karta of the undivided hindu family having been brought on record though not strictly in accordance with law, we do not propese to give any importance to this technical objection and overrule the same.
In a decision inter partes, Valjibhai 's case, (supra) this Court struck down the first section 6 notification issued on 14th August 1953 on the ground that the acquisition being for the benefit of a Corporation, though for a public purpose, was bad because no part of the compensation was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with.
It would appear that section 4 notification was issued on 10th October 1952 and within less than one year, after completing the enquiry under section 5A and the 912 examination of the report by the appropriate Government, section 6 notification was issued on 4th August 1953.
By any yard stick it could not have been said that there was delay, much less an unreasonable delay, in making the necessary declaration under section 6 after the issue of the notification under section 4.
The chronology of events that followed in the wake of issuance of a notification under section 6 dated 14th August 1953 would wholly exonerate the Government of any charge of dithering or dilatoriness or inaction.
These events be noticed now so as to appreciate the submission on behalf of the appellants that they cannot be accused of any inaction, deliberate dilatoriness or dithering.
Soon after the issue of the notification under section 4 dated 10th October 1952 and even before the declaration was made under section 6 as per notification dated 14th August 1953 the respondents filed Civil Suit No. 1262/53 challenging the notification under section 4 and sought an injunction restraining the then State of Bombay from proceeding with the acquisition of the lands in possession of the respondents.
An interim injunction was sought but the same was refused.
Thereafter came the notification under section 6 dated 14th August 1953.
It appears that thereafter the respondents amended the plaint to add a relief for quashing and setting aside the notification under section 6 also.
It would thus appear that whatever was required to be done by the Government for completing the proceedings of acquisition was undertaken and finished within a period of less than one year from the date of the notification under section 4.
The suit filed by the respondents was dismissed by the trial court as per its judgment dated 28th January 1959.
Both the notifications were held valid and they were not found to suffer from any infirmity as contended for and on behalf of the respondents.
The respondents carried the matter in appeal to the District Court and this appeal was dismissed by the first appellate court as per its judgment dated 28th September 1959.
The respondents preferred second appeal to the High Court but failed to carry conviction with the High Court, with the result that the appeal failed and was dismissed on 1st August 1960.
The respondents did not rest content with the dismissal of their second appeal and applied for and obtained special leave of this Court under article 136 of the Constitution.
The appeal of the respondents by special leave succeeded as per judgment rendered by this Court on 8th May 1963.
The question is whether there was any delay much less unreasonable delay on the part of the State Government in taking follow up action after issuing notification under section 4.
The State Government had actually taken the follow up action expeditiously within less than a year when on 14th August 1953, section 6 notification was issued.
Even 913 before section 6 notification was issued the respondents filed the suit and went on preferring appeals.
They succeeded for the first time in this when this Court allowed their appeals on May 8, 1963.
Till then the Government could not be accused of any inaction or delay in taking the follow up action.
What was the Government expected to do during the time the respondents went on preferring successive appeals ? Was the Government expected, even though it succeeded in the trial court and first and second appellate courts to foresee in advance that at some stage by some court in the pyramid of appeals its notification under section 6 would be found to be ineffective and forestall such a decision by issuing another section 6 notification ex major cautela ? If the Government succeeded in three courts and was assured by three courts that both its notifications under sections 4 and 6 were valid and effective, it is difficult to appreciate the observation of the High Court that when the Government issued the first section 6 notification it was ineffective exercise of power under section 6 and the Government wrongly went on contending that it was a valid exercise of power.
This criticism is not well merited.
There would have been some legitimacy in this criticism of the stand of the Government if the Government had lost in the first court and went on filing successive appeals even if each court went on holding the notification ineffective.
The reverse is the position.
The Government went on succeeding and the courts went on upholding the notification.
There was no alternative with the Government but to go on defending its action before the courts to which it was dragged by the respondents after their successive failures.
In this background the question was posed by the High Court: Can the Government then contend, when it is found to be wrong by the highest court in the land, that the delay in the exercise of the power under section 6 occasioned by its own wrong stand should be regarded as reasonable ? and answered by it by saying that if the Government had not persisted in wrongly asserting the validity of the first section 6 notification and accepting its invalidity, had cancelled it, the delay in the effective exercise of the power under section 6 could have been avoided.
This answer is unfortunately not borne out by the events succeeding the issuance of the first section 6 notification.
Not only the Government stand was not found to be wrong but by three courts it was found to be correct.
It is this Court in the last appeal found section 6 notification invalid.
Could the Government be expected to speculate in advance that ultimately it may fail to convince this Court though it had convinced three other courts and, therefore, right at the time of institution of the suit in the court, concede the contention of the respondents and cancel the first section 6 notification and issue a second one ? There was no guarantee that the second one would not have been challenged and obviously there was 914 no assurance that some defect may not be found by some court even in the second section 6 notification.
The Government cannot be put on the horns of a dilemma.
Therefore, we find it difficult to agree with the High Court that having adopted a wrong stand and thus taken about 11 years the Government cannot now be permitted to urge that the delay so occasioned should not be regarded as unreasonable.
In fact the Government had practically little or no option but to support the decisions of the Courts which were in its favour till this Court for the first time found some defect in its notification under section 6.
Any other view may lead to a starting result that every litigant before it can explain the delay on the ground of being led from court to court must foresee a possible error that the hierarchy of courts may at some stage notice and rectify its stand in advance.
It would be nothing short of a speculative approach which may ill suit any litigant and more so the Government.
The High Court was further of the opinion that even if there was some explanation for the delay from 14th August 1953 to 8th May 1963, there was no explanation for the delay in making the review application in the beginning of 1965 before the Supreme Court and that this period of one year and 9 months remains totally unexplained.
In this context it may be advantageous to state that the respondents in the earlier round of litigation had challenged both the notifications under sections 4 and 6 had lost before the first three courts.
This Court while allowing the appeal by its judgment dated 8th May 1963 passed the final order as under: "We, therefore, allow the appeals and decree the suits of the appellants with costs in all the Courts.
" Literally implemented, the decretal portion would mean that both section 4 and section 6 notifications were struck down.
Reading the body of the judgment it clearly transpires that this Court upheld the validity of the notification under section 4.
When this inconsistency between the judgment and the decree came to the notice of the Government, Review Petitions Nos. 11 and 12 of 1965 appear to have been filed in the year 1965, and these petitions were allowed by this Court as per its order dated 13th September 1965 by deleting the decretal portion of the judgment as extracted hereinabove and substituting it in the following words: "and decree the suit for permanent injunction restraining the respondents from proceeding further with the land acquisition proceedings under the said notification issued under section 6(1) of the Act with costs in all the courts".
915 The High Court was of the opinion that the Government took a long time of one year and 9 months in ascertaining this inconsistency between the decretal portion of the judgment and the main body of the judgment and there was delay in moving the review applications.
In this connection a reference to the affidavit of Mr. D. K. Motwani, Secretary to the Gujarat State Road Transport Corporation for whose benefit the acquisition was made, as well as the affidavit of Shri section R. Pardhan, Under Secretary to Government of Gujarat, would show that after the copy of the judgment was received and it was examined to ascertain what further steps were required to be taken to complete the process of acquisition consistent with the judgment of the Supreme Court, the error was discovered and then the learned advocate was instructed to file review applications.
This delay of a year and few months in the context of the facts in this case cannot be said to be unreasonable.
The third stage where the High Court found the delay in taking the follow up action was after the grant of review application and before the impugned notification dated 10th October 1967 was issued.
This Court allowed the review applications on 13th September 1965.
Thereafter the Government directed a fresh enquiry under section 5A.
This was done in fairness to the respondents, though Mr. D. V. Patel learned counsel for the respondents was rather critical of this fairness of the Government inasmuch as he said that there was no necessity for a fresh enquiry.
Earlier enquiry under section 5A was in 1952.
By this time nearly 15 years had elapsed since the enquiry.
If the Government in the backdrop of these facts considered it fair and just to order a fresh enquiry to give the respondents an opportunity to file fresh objections, the Government cannot be accused of dithering or whiling away precious time on what was described as a futile exercise.
This second enquiry under section 5A was held after giving an opportunity as per notice dated August 1966, to file objections which in fact were filed on August 31, 1966, and then a notice dated 30th December 1966 was served upon the respondents calling upon them to appear for personal hearing on 12th January 1967.
The enquiry was adjourned at the request of the respondents 9 times as set out in the affidavit of Shri section R. Pardhan.
The enquiry was over on 13th April 1967.
During the course of personal hearing the respondents appeared through their advocates Sarvashri K. M. Vyas, A. L. Shah, V. R. Bhatt and N. D. Pandey.
The last of the submissions appear to have been made on 13th April 1967.
Thereafter the enquiry officer submitted his report and the Government took the prompt action of issuing the impugned notification on 10th October 1967.
Even here the High Court found a further unexplained delay after 13th September 1965 till 10th October 916 1967 when the impugned notification was issued.
The High Court possibly overlooked the affidavit of Shri section R. Pradhan when it observed that there was no satisfactory answer to the question posed by it, in the affidavit filed on behalf of the respondents.
With respect, it is not possible to subscribe to this view of the High Court in view of the facts clearly set out hereinabove.
It, therefore, unmistakably transpires that in the facts and circumstances of this case there was no delay, though apparently there appears a time lag of nearly 15 years between section 4 and section 6 notifications because the events in the interregnum clearly made it impossible for the Government to issue a second section 6 notification when it had already issued a first section 6 notification within a period of less than one year from the date of the issue of the section 4 notification and the validity of which was beyond reproach till May 6, 1963.
Assuming that the High Court was right in rejecting the explanation preferred by the Government for the delay in issuing the second section 6 notification, would it still be fair to hold that there was an unreasonable delay in issuing the second section 6 notification in view of the specific provision contained in sub section
(2) of section 4 of the 1967 Amendment Act which provides that notwithstanding anything contained in clause (b) of sub section
(1), no declaration under section 6 of the principal Act in respect of any land which has been notified before the commencement of the Land Acquisition (Amendment & Validation) Ordinance, 1967, under sub section
(1) of section 4 of the principal Act, shall be made after the expiry of two years from the commencement of the Ordinance.
The Ordinance came into force on 20th January 1967.
Simultaneously a proviso was added to sub section
(1) of section 6 in the following terms: "Provided that no declaration in respect of any particular land covered by a notification under section 4 sub section
(1) published after the commencement of the Land Acquisition (Amendment & Validation) Ordinance, 1967, shall be made after the expiry of three years from the date of such publication".
A combined reading of the provisions contained in sub section
(2) of section 4 with the one contained in the proviso to sub section
(1) of section 6 introduced by the Amendment Act would clearly put an end to the unsatisfactory situation which troubled the High Court in this case.
In view of the statutory provision noticed herein the Government would be precluded from making a declaration under section 6 after the expiry of a period of three years from the date of the issue of a notification under section 4 which may be issued after the Amendment Act came into force.
And in respect of those section 4 notifications which were issued perior to the 917 commencement of the Ordinance hereinabove noted on 20th January 1967 any notification which is required to be issued under section 6 must be made within a period of two years whereafter as a necessary corollary all section 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source or reservoir for issuing section 6 notification.
Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of sections 4, 5A and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied.
The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met.
Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief.
Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case.
There is now no more possibility of a gap of more than three years between section 4 and section 6 notifications because any declaration made after the expiry of a period of three years from the date on which section 4 notification is issued would be invalid as being beyond the prescribed period.
These newly inserted provisions were brought to the notice of the High Court.
Now, as pointed out earlier, the Ordinance came into force on 20th January 1967.
The notification under section 4 in this case was prior to the commencement of the Ordinance.
Therefore, the provision contained in sub section
(2) section 4 of the 1967 Amendment Act would be directly attracted.
The Government could, therefore make a declaration within a period of two years from 20th January 1967.
The Government has in fact issued the impugned notification under section 6 on 10th October 1967, i.e. within the period prescribed by the statute.
The question then is: when a statute confers power and prescribes time within which it can be exercised, could it ever be said that even though the power is exercised within the statutory period yet the Court can examine the question of delay and record a finding that there was an unreasonable delay in exercise of the power and, therefore, the exercise of power is bad ? This approach would defeat the very purpose for prescribing a sort of a period of limitation on exercise of power.
When a period is prescribed for exercise of power it manifests the legislative intention that the authority exercising the power 918 within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power.
The very prescription of time in heres a belief that the nature and quantum of power and the manner in which it is to be exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within that time could not be negatived on the only ground of unreasonable delay.
Therefore, in this case it is difficult to agree with the High Court that there was an unreasonable delay in exercise of power and hence the exercise was either bad or invalid.
The High Court by implication read a fetter on the power of the Government to issue section 6 notification within a reasonable time after the issue of section 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time.
In raising this implication the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time.
Coupled with it two other factors were taken into consideration such as the effect of issuing a section 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel section 4 notification in the event of falling prices; history of legislation; and delayed issue of section 6 notification would deny adequate compensation to the owner.
But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue section 6 notification was to be exercised within the prescribed period of time.
At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision.
Therefore, while appreciating the anxiety of the High Court we are of the opinion that once the legislature stepped in and prescribed a sort of period of limitation within which power to issue notification under section 6 could be exercised it was not necessary to go in search of a further fetter on the power of the Government by raising the implication.
It thus appears to be satisfactorily established that the impugned section 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore, could not be struck down on the only ground that the power to issue second section 6 notification was exercised after an unreasonable and unexplained delay.
This being the only infirmity found by the High Court to which we are not able to 919 subscribe, it must be held that the second section 6 notification dated 10th October 1967 is valid and legal.
Accordingly both these appeals succeed and are allowed and the decision of the High Court is set aside and Special Civil Application No. 729/68 filed by the respondents is dismissed but in the circumstances of the case, with no order as to costs.
S.R. Appeals allowed.
[/INST]There was a dispute between the appellants and the complainant 's party over the 'turns of water ' for irrigation of their agricultural lands.
The dispute was settled by a patchwork mediation but it was of no avail.
On the fateful day, the complainant 's party were making merry with alcohol in the house of the prosecution witness when the 3rd appellant joined them.
His unwelcome presence resulted in frayed tempers, and beatings of the 3rd appellant.
The latter, bent on reprisal for the flagellation and humilation, waited till sundown and returned armed with friends and weapons.
He ignited the attack by instigation and the 1st and 2nd appellants fired with their guns as a result of which 3 members of the complainants ' party died on the spot.
At this situation, PW 14 brought out his licensed gun from his house, and thereupon both sides started firing and a number of persons sustained gun shot injuries on their person.
In the midst of this firing, the lambardar of the village appeared on the scene and made an attempt to pacify both the sides, but he also received gun shot injuries as a result of which he died two days later.
A fourth person made a dying declaration that he had been shot by the appellants.
The Sessions Court held the appellants guilty under Section 302 I.P.C. and sentenced them to death, and the High Court on appeal confirmed the sentence.
Allowing the appeal to this court, ^ HELD: [Per Krishna Iyer & Desai, JJ.] 1.
Death sentence on death sentence is Parliament 's function.
Interpretative non application of death sentence when legislative alternatives exist is within judicial discretion.
[1065B] 2.
The dignity of man, a sublime value of the Constitution and the heart of penelogical humanisation, may find expression through culturisation of the judicial art of interpretation and choice from alternatives.
If the Court reads the text of section 302 Penal Code, enlightened by the fundamental right to life which the Founding Fathers of the Constitution made manifest, the judicial oath to uphold the Constitution will unfold profound implications 1060 beyond lip service to Form VIII of the Third Schedule and this lofty obligation and cultural Constitutional behest validates the exploration of the meaning of meanings wrapped in the uncharted either/or of the text of section 302 IPC.
[1065E F] 3.
Courts read the Code, not in judicial cloisters but in the light of societal ethos.
Nor does the humanism of our Constitution holistically viewed, subscribe to the hysterical assumption or facile illusion that a crime free society dawn if hangman and firing squads were kept feverishly busy.
[1066A B] 4.
The myopic view that public executions backed by judicial sentences will perform the funeral of all criminals and scare away potential offenders is a die hard superstition of sociologically and psychologically illiterate legalism which sacrifices cultural values, conveniently turns away from the history of the futility of capital penalty over the ages and unconsciously violates the global reality that half the world has given up death penalty, de jure or de facto, without added calamity, and the other half is being educated out of this State practised lethal violence by powerful human rights movements at once secular and spiritual.
[1067B C] 5.
The jurisprudence of sentencing in Free India has been a Cinderella and the values of our Constitution have not adequately humanised the punitive diagnostics of criminal courts, which sometimes, though rarely, remind us of the torture some and trigger happy aberrations of the Middle Ages and some gory geographic segments, soaked in retributive blood and untouched by the correctional karuna of our Constitutional culture.
[1068G] 6.
After Ediga Annamas 's case ; the law of punishment under section 302 IPC has been largely settled by this court and the High Courts are bound thereby.
[1068H] 7.
Rajendra Prasad 's case ; and Bishnu Deo Shaw 's case [1979] 3 SCR p. 355 have indubitably laid down the normative cynosure and until over ruled by a larger bench of this court that is the law of the land under article 141.
To discard it is to disobey the Constitution and such subversiveness of the rule of law, in a crucial area of life and death, will spell judicial disorder.
Today, the law is what Rajendra Prasad, in its majority judgment, has laid down and that has been done at unmistakable length.
Willy nilly, that binds judges and parties alike.
[1068H 1069A, 1069C] 8.
Counting the casualties is not the main criterion for sentencing to death, nor recklessness in the act of murder.
The sole focus on the crime and the total farewell to the criminal and his social personal circumstances mutilate.
sentencing justice.
[1069B] 9.
The forensic exercise at the sentencing stage, despite the purposeful section 235(2) Cr.
P.C., has been a functional failure because of the casual way the punishment factors are dealt with, as if the nature of the crime was the sole determinant of the punishment.
In Rajendra Prasad 's case it has been explained how the prosecution must make out, by special factors, why the graver penalty should be inflicted.
Evidence may be led and arguments addressed by both sides, but in practice section 235(2) has been frustratingly ritualised.
[1069D E] 1061 10.
Section 302 of the Penal Code, read with section 354(3) of the Criminal Procedure Code demands special reasons four awarding the graver sentence.
[1070El ll.
Taking the cue from the English legislation on abolition, the majority opinion suggested that life imprisonment which strictly means imprisonment for the whole of the man 's life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large.
This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.
[1071F G] 12.
The gallows swallow, in most cases, the social dissenter, the political dissenter, the poor and the under privileged, the member of minority groups or one who has turned tough because of broken homes, parental neglect or other undeserved adversities of childhood or later.
Judicial error leading to innocent men being executed is not too recondite a reality.
Evidence in Court and assessments by judges have human limitation.
[1071H 1072Bl 13.
A Full Bench of the Madras High Court in Athapa Goundan 's case (AIR 1937 Mad.
695) sentenced him to death.
He was duly executed as also several others on the ratio of that ruling.
This Full Bench decision was, however, over ruled ten years later by the Privy Council in Had it been done before Goundan was gallowed many judicial hangings could have been halted.
[1072C] (A) In the instant case the earlier provocation came from the deceased 's side by beating up Appellant No. 3.
The parties, including the prosecution group were tipsy.
There had been antecedent irrigation irritation between them.
There was no pre planned, well laid attack, hell bent on liquidating the enemy.
[1069E] (B) The sentences of death in the present appeal are liable to be reduced to life imprisonment.
[1071E] (Per Sen, J. dissenting) 1.
The question of abolition of capital punishment is a difficult and controversial subject, long and hotly debated and it has evoked during the past two centuries strong conflicting views.
[1072H] 2.
The question whether the scope of death sentence should be curtailed or not is for the Parliament to decide.
The matter is essentially of political expediency and, as such, it is the concern of the statesmen, and, therefore, the domain of the Legislature land not the Judiciary.
[1073A] 3.
It is not within the province of this Court while dealing with an appeal confined to sentence under article 136, to curtail the scope of death sentence under section 302 l.
P.C., 1860 nor is it constitutionally or legally permissible for this Court while hearing such an appeal to lay down that on grounds of compassion and humanism the sentence of death on a conviction for murder under section 302, as a rule of universal application be substituted by a sentence 1062 of imprisonment for life, irrespective of the gravity of the crime and the surrounding circumstances i.e., virtually abolish the extreme penalty.
[1072G] 4.
Section 302 I.P.C., 1860 confers upon the Court a discretion in the matter of the punishment to be imposed for an offence of murder and the Court has to choose between the sentence of death and a sentence of imprisonment for life while under section 354(3) Cr. P.C., 1973 the Court is enjoined with a duty to record 'special reasons ' in case the extreme penalty is awarded.
But the question whether the death sentence should be awarded or not must, be left to the discretion of the Judge trying the accused and the question of sentence must depend upon the facts and circumstances obtaining in each case.
A sentence of death when passed, is subject to confirmation by the High Court under section 366(1) of the Code.
The accused also has a right of appeal to the High Court under section 374(2) against the sentence.
Thereafter an appeal lies to this Court by special leave under article 136 on the question of sentence.
It would, therefore, be manifest that it is neither feasible to define nor legally permissible for this Court to limit or circumscribe the connotation of the expression 'special reasons ' occurring in section 354(3) of the Code so as to bring about a virtual abolition of the death sentence.
[1073B E] 5.
A decision on a question of sentence depending upon the facts and circumstances of a particular case, can never be regarded as a binding precedent, much less 'law declared ' within the meaning of article 141 of the Constitution so as to bind all courts within the territory of India.
[1073F] 6.
According to the well settled, theory of precedents every decision contains three basic ingredients: (i) findings of material facts, direct and inferential.
An inferential finding, of facts is the inference which the Judge draws from the direct, or perceptible facts, (ii) statements of the principles of law applicable to the legal problems disclosed by the facts, (iii) Judgment based on the combined effect of (i) and (ii).
For the purposes of the parties themselves and their privies, ingredient No. (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action.
It is the judgment that estops the parties from reopening the dispute.
However for the purposes of the doctrine of precedents, ingredient No. (ii) is the vital element in the decision.
This indeed is the ratio decidendi.
It is not everything said by a judge when giving judgment that constitutes a precedent.
The only thing in a judge 's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the radio decidendi.
[1073G 1074B] 7.
The ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based.
The other elements in the decision are not precedents.
[1074C] Qualcast (Wolverhampton) Ltd. vs Haynes L.R. 1959 A.C. 743 referred to.
Even where the direct facts of an earlier case appear to be identical to those of the case before the Court, the Judge is not bound to draw the same inference as drawn in the earlier case.
[1074D] 1063 9.
There are no rationes decidendi much less any ratio decidendi in Rajendra Prasad 's case.
[1074 E] (i) In the minority opinion the need for judicial restraint was emphasised and the duty to avoid encroachment on the powers conferred upon Parliament.
The assessment of public opinion on this difficult and complex question was essentially a legislatives not a judicial, function.
[1074El (ii) Buttressed by the belief that Capital punishment served no useful purpose, the majority, asserted that it was morally unacceptable to the contemporary society and found it shocking to their conscience and sense of justice.
The deliberate extinguishment of human life by the State for an offence of murder, was a denial of human dignity and the death penalty was usually inflicted only on a few, i.e. the poor and downtrodden who are outcasts of a society, which led to the irresistible inference that the punishment was not fairly applied.
[1074F] (iii) This may be 'progressive ' stance which is out of place in a judicial pronouncement, which ought to be based on the facts and circumstances of the case and the law applicable.
But the professed view does not stem from a firm belief in dignity of human life for the death penalty is advocated for certain classes of offenders namely (l) white collar offenders, (2) anti social Offenders and (3 ) hardened murderers.
This shows that the majority was not against the capital punishment in principle.
[1074G 1075A] (iv) on the facts, the majority commuted the sentence of death to a sentence of imprisonment for life, and the decision cannot, therefore, be construed as laying down a ratio decidendi.
[1075B 10.
The majority decision tested in the light of the theory of precedents clearly does not lay down any legal principle applied to any legal problem disclosed by the facts and, therefore, the majority decision cannot be, said to have 'declared any law ' within the meaning of article 141 so as to bind all courts in the country.
General observations made in the context of sentencing jurisprudence will have to be regarded as the view of the Judge/ Judges concerned and not 'law declared by this court ' under article 141 of the Constitution.
Any attempt to limit or circumscribe the connotation of 'special reasons ' mentioned in section 354(3) of the Code of Criminal Procedure by indulging in classification of murders such as white collar offences and nonwhite collar offences or laying down so called guidelines for imposition of the extreme penalty, would amount to unwarranted abridgement of the discretion legally vested in the trial court and constitutionally upheld by this Court.[1075C D] 11.
If the general observations on sentencing jurisprudence made in Rajendra Prasad 's ease are to be regarded as 'law declared by this Court ' within the meaning of article 141 so, as to bind all courts in the country, then the observation or the so called guidelines to the effect " 'special reasons ' necessary for imposing death penalty must relate, not to the crime as such but to the criminal" occurring in the majority judgment, it must be stated, would be unwarranted and contrary to s 302 of the Indian Penal Code read with section 354(3) of the Code of Criminal Procedure.
[1075E F] 1064 12.
section 302 of the I.P.C. gives a choice while section 354(3) of the Code merely requires 'special reasons ' to be indicated for imposing the death penalty.
Nothing is stated whether the 'special reasons ' should relate to the criminal or the crime.
In the absence of any specific indication in that behalf 'special reasons ' would relate both to the crime and the criminal.
Previously, perhaps, more attention was being paid to the nature, gravity and the manner of committing the crime, though extenuating factors concerning the criminal, his age, criminal tendencies etc.
were not ignored.
[1075G] 13.
In the majority judgment in Rajendra Prasad 's case nothing new has been said except that more emphasis on factors concerning the criminal is indicated.
But in the great enthusiasm for doing so, the pendulum has swung to the other extreme and the guideline given is that the 'special reasons ' must relate "not to the Crime as such but to the criminal," for which there is no warrant in section 354(3) of the Code of Criminal Procedure.
[1075H 1076A] 14.
The obsession to get the death penalty abolished from the Statute Book i.e. Indian Penal Code 1860 is so great great an interdict against it is surprisingly spelt out from the Constitution itself because right to life has been regarded as 'very valuable, sacrosanct and fundamental ' therein, though in Jagmohan Singh 's case 1(1973) 1 S.C.C. 20] a constitution bench of this Court unanimously held that the death penalty and the judicial discretion vested in the Court regarding its imposition on an accused are constitutionally valid.
[1076B C] 15.
So long as the extreme penalty is retained on the Statute Book, it would be impermissible for any Judge to advocate its abolition in judicial pronouncements.
The forum for that is elsewhere.
[1076D] (a) In the instant case it cannot be said that the award of death sentence to any of the two appellants, was not proper or uncalled for.
Though the dispute was over the 'turns of water, ' that would hardly furnish any justification for the commission of the pre planned triple murder.
The dastardly act of the appellants resulted in the loss of three precious lives.
These were nothing but intentional, cold blooded and brutal murders.
[1077A, E] (b) The High Court was justified in confirming the death sentence passed under section 368(a) of the Code, being satisfied that there were 'special reasons" within the meaning of section 354, sub section
(3) of the Code of Criminal Procedure 1973.
[1077A] (c) On the facts and circumstances of the case the award of death sentence to the two appellants who were trigger happy gentlemen was neither 'erroneous in principle ' nor was 'arbitrary or excessive ', or 'indicative of an improper exercise of discretion ', and is well merited.
[1077G]
</s>
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<s>[INST] Summarize the judgementvil Appeal Nos.1177 to 1184 (NT) of 1990.
From the Judgments and Order dated 5.3.85, 21.1.85, 25.2.85, 11.2.85, 14.10.85, 11.2.85 and 20.10.86 of the Madras High Court in T.C. Nos.694/82,565/80, 1404/80, 637/81,638/81,521/81,429/83 and 572/83.
T.A. Ramachandran and Mrs. Janki Ramachandran for the Appellant.
S.C. Manchanda, B.B. Ahuja and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These Special Leave Petitions arise out of and are directed against the orders of the High Court of Judicature at Madras disposing of references made under Section 256(1) of the Income Tax Act 1961 (Act for short) in Tax Case Nos. 694 of 1982, 565 of 1980, 1404 of 1980, 637 and 638 of 1981, 521 of 1981, 429 of 1983 and 572 of 1983.
The High Court following its earlier pronouncement of that Court in Commissioner of Income tax vs O.M.S.S. Sankaralinga Nadar & Co., answered the question of law, similar in all the cases, in favour of the revenue.
The question was whether in making a disallowance for the inter est paid by a partnership firm to a partner under Section 4O(b).of the Act the interest, in turn, paid by the partner on his borrowings from the firm should be taken account of and deducted and only the balance disallowed under Section 40(b).
On this question, there is a sharp divergence of judi cial opinion in the High Courts.
In Sri Ram Mahadeo Prasad vs C.I.T., 1; C.I.T. vs Kailash Motors, ; C.I.T. vs T.V. Roman sigh & Sons, ; C.I.T. vs Kothari & Co., ; C.I.T. vs Balaji Commercial Syndicate, ; C.I.T. vs Motiisi Ramjiwan and Co., ; C.I.T. vs Precision Steel and Engg.Works, & Har.), the High Courts have taken the view that where a firm pays interest to its partner and the partner also pays interest to the firm, only the net amount of interest paid by the firm to the partner is liable to disallowance under Section 40(b) of the Act.
However, in C.I.T. vs O.M.S.S. 250 Sankaralinga Nadar & Co., , the High Court of Madras has taken a contrary view.
We have heard Shri Ramachandran, learned senior counsel for the appellants and Sri Manchanda, learned Senior Counsel and Sri B.B. Ahuja for the revenue.
Special Leave is granted.
The appeals are taken up for final hearing, heard and are disposed of by this common judgment.
We may refer to the facts in SLP(C) No. 14291/1985 which is representative of and typifies the context in which the question arises.
The appellant, M/s. Keshavji Ravji & Co. is a registered firm consisting of 6 partners and car ries on a business in the manufacture and export of stain less steel articles.
In the accounting year ended 13.11.1974, corresponding to the assessment year 1975 76, the firm paid interest to the partners on the amounts standing to their respective credits in the firm.
The firm also received from the partners interest on their borrowings from the firm.
For the relevant assessment year, the appellant filed a return disclosing a total income of Rs.2,55,225.
The Income tax Officer while disallowing the amount of interest paid to partners did not set off the interests received from the partners on their own borrowings.
With this disallow ance, the income of the firm was assessed at Rs.2,79,730.
In the assessee 's appeal, the Appellate Assistant Commissioner of Income Tax by his order dated 18.10.1977 allowed the claim of the appellant that only the net interest paid to the partners, after setting off the interest received from them, was to be disallowed.
The Revenue took up the matter in further appeal before the Income Tax Appellate Tribunal which by its order dated 6.1.1979 dismissed the appeal and affirmed the appellate order of the Assistant Commissioner.
The Tribunal, as did the Appellate Assistant Commissioner, placed reliance on the decision of the Allahabad High Court in Sri Ram Mahadeo Prasad vs C.I.T., At the instance of the revenue the Tribunal stated a case and referred the following question of law for the opinion of the High Court. "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in holding that net interest should be disallowed under section 40(b) of the Income tax Act, 1961 ?"
This reference under Section 256(1) of the Act was registered in 251 the High Court as Tax Case No. 694/82 and the High Court by its order dated 5.3.1985 answered the question in the negative and against the appellant relying, as stated earli er, on its earlier pronouncement in Sankaralinga Nadar 's case.
Broadly, similar are the circumstances under which the other appeals arise.
Before we advert to and evaluate the merits of the contentions, it is appropriate to refer to the statutory provision as it then stood.
Section 40 of the Act provided: "40. "Notwithstanding anything to the contrary in sections 30 to 39, the following amounts shall not be deducted in computing the income chargeable under the head 'Profits and gains of business or profession", (a) ] (1) ] to ] Omitted as unnecessary (v) ] (b) in the case of any firm, any payment of interest, salary bonus, commission or remuneration made by the firm to any partner of the firm." (c) ] ] Omitted as unnecessary (d) ] By the Taxation Laws (Amendment) Act, 1984, several amend ments were introduced in the body of Section 40.
One of them was the introduction of Explanation 1 in clause (b) of Section 40.
That Explanation reads: "Explanation 1: Where interest is paid by a firm to any partner of the firm who has also paid interest to the firm, the amount of interest to be disallowed under this clause shall be limited to the amount by which the payment of interest by the firm to the partner exceeds the payment of interest by the partner to the firm.
" Referring to the new Explanation inserted in clause (b) of Section 40 by the amendment, the "Notes on Clauses" say: 252 "This clause seeks to insert three new Explanations to section 40(b) of the Act.
Explanation 1 seeks to provide that where interest is paid by a firm to a partner who has also paid interest to the firm, the amount of interest to be disallowed under section 40(b) of the Act shall be limited to the net amount of interest paid by the firm to the part ner, that is, the amount by which the payment of interest by the firm to the partner exceeds the payment of interest by the partner to the firm."
"The proposed amendments will take effect from 1st April, 1985, and will, accordingly, apply in relation to the as sessment year 1985 86 and subsequent years.
" The Explanation I, which was introduced in 1984, proprio vigore, does not apply to the assessment relating, as here, to an earlier year.
Whether the Explanation brings about a change in, or admits of being understood as an exposition of, the law is, however, a different matter.
It is, perhaps, also appropriate here to refer to the circular No. 33 D (XXV 24) of 1965 of the Central Board of Direct Taxes, the operative part of which provides: "However where a firm pays interest to as well as receives interest from the same partner, only the net interest can be stated to have been received or paid by the firm, as the case may be, and only the net interest should be taken into consideration.
This view also finds support in the decision of the Allahabad High Court in the case of Sri Ram Mahadeo Prasad, In view of the above, the in structions contained in Board 's Circular No. 55 of 1941 may be treated as modified accordingly .
Section 40 imposes a restriction on the deductibility of certain outgoings and expenses which are, otherwise, enabled under Sections 30 39 of the Act and constitutes an exception to these sections.
Clause (b) of Section 40 is analogous, with some enlargement, to Section 10(4)(b) of the predecessor Act of 1922.
The prohibition in Section 40 against the deductibility of certain outgoings is in mandatory terms.
It is this aspect that has loomed large in the reasoning supporting the view accepted by the Madras High Court in Sankaralinga Nadar 's case and emphasised by the learned counsel for the Revenue.
The reasoning of the Madras High Court in that case and of the Andhra Pradesh High Court in Commissioner of Income tax vs T.V. Ramanaiah & Sons, 157 illustrate the rival points of view.
The Madras High Court held: "The collocation of the words shows that what is disallowed in the matter of payment of interest cannot be the net interest, but can only be interest paid with refer ence to a given account relating to payment of interest by the firm to the partner.
This is because the subject of disallowance in the matter of payment of interest appears in section 40(b) cheek by jowl with salary, bonus, commission or remuneration made by the firm to the partner.
There cannot be any net salary or net bonus or net remuneration as mat ters of disallowance.
They can only be salary, as such, or bonus, as such, or commission, as such, or remuneration as such which are the subject of disallowance.
In like manner, when the section speaks of payment of interest by the firm to a partner as the subject of disallowance, it can only be payment of 'gross ' interest in the particular account in which interest is payable.
Salary, bonus, commission or remuneration do not have what may be characterised as a two way traffic . " " . .
In the earliest of the cases, the Allahabad High Court endorsed the Tribunal 's decision to disallow only the net interest.
The court did so, not on a construction of the words of the section, but on equitable grounds of fairness". " (P. 336)
The Andhra Pradesh High Court, however, taking the contrary view relied on, what it considered, the revenue 's own understanding of the legal position as made manifest in the Board 's circular that the "real purpose of Section 40(b) of the Act was to add back only the net amount of interest and not the gross amount".
On the interpretation of Section 40(b), the High Court in Rarnanaiah 's case said: "As a matter of interpretation of section 40(b) of the Act, we find that there is nothing in the provision which expressly states that the amount to be added back is either gross or net.
The provision requires that "any pay ment of interest" by a partnership firm to a partner shall not be deducted in computing the income of the partnership firm.
For the purpose of finding out the amount paid by way of 254 interest, it is necessary for the Income tax Officer to find out the amount of interest paid by the partnership firm to the partner and also see if the same partner paid any inter est to the partnership firm and ascertain the amount of interest effectively paid by the partnership firm to the partner . " at p. 304] 5A.
The arguments of the learned counsel on both sides covered a wide range of contentions.
The submissions of Sri Ramachandran in support of the appeals admit of being formu lated thus: (a) The scheme of Section 40 of the Act does not evince any intention to penalise a firm for the outgoings which are rendered non deductible; but the sole object of Section 40(b) is, having regard to the special features and legal incidents of a partnership, to enable the assessment of the 'real income ' of the firm.
The outgoings disallowed by Section 40(b) are not really outgoings at all, but constitute what are, otherwise, ingredients or components of the real income of the firm.
Therefore, the ascertainment of the real income or the real commercial profits does not require or compel the exclusion of the cross interest paid by a partner in determining the quantum to be disallowed under Section 40(b).
(b) The extent of the embargo under Section 10(4)(b) of the 1922 Act on the disallowance of "interest" paid to a partner was judicially interpreted and ascertained in Sri Ram Maha deo Prasad vs Commissioner of Income tax, and when the legislature re enacted those provisions in Section 40(b) of the 1961 Act in substantially the same terms, legislature must be held to have used that expression with the same implications attributed to it by the earlier judicial exposition.
(c) Interest payable by the partners to the firm pursuant to an agreement between the partners is of the same nature as that payable by the firm to the partners on the capital, brought in by them.
Interest paid to and received from a partner are both integral parts of a method adopted by the partners for adjusting the division of profits and in that sense both payments partake of the same character.
In identifying and quantifying the 'interest ' for purposes of 255 Section 40(b) it would be permissible to take both the payments into consideration and treat only such excess, ii any, paid by the firm as susceptible to the exclusionary rule in Section 40(b).
(d) The circular No. 33 D(XXV 24) of 1965 of the Central Board of Direct 'Faxes, which is statutory in character, is binding on the authorities.
The High Court was in error in taking a view of the legal position different from the one indicated in it.
(e) The amendment of 1984 inserting Explanation I in Section 40(b), though later in point; of time, constitutes a legis lative exposition of the correct import of the provision and so construed offers a guide to the correct understanding of the provisions in Section 40(b) in its application to the earlier years as well.
Re: Contention (a) The premises of the argument is good in parts; but the inference does not logically follow.
Section 40(b), it is true, seeks to prevent the evasion of tax by diversion of the profits of a firm; but the legislative expedience adopt ed to achieve that objective requires to be given effect on its own language.
Section 40 opens with the non obstante clause and directs that certain outgoings specifically enumerated in it "shall not be deducted" in computing the income chargeable under the head "profits and gains of business or profession": As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent becomes impermissible.
The supposed intention of the legislature can not then be ap pealed to whittle down the statutory language which is otherwise unambiguous.
If the intendment is not in the words used it is nowhere else.
The need for interpretation arises when the words used in the statute are, on their own terms, ambivalent and do not manifest the intention of the Legislature.
In Doypack Systems Pvt. Ltd. vs Union of India, ; it was observed: "The words in the statute must, prima facie, be given their ordinary meanings.
Where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail unless there are some strong and obvious reasons to the contrary . " (p. 33 1)
256 "It has to be reiterated that the object of interpretation of a statute is to discover the intention of the Parliament as expressed in the Act.
The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context.
That intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unam biguous, be applied as they stand . " (Emphasis Supplied) (p. 332)
Artificial and unduly latitudinarian rules of construc tion which, with their general tendency to "give the tax payer the breaks", are out of place where the legislation has a fiscal mission.
Indeed, taxation has ceased to be regarded as an "impertinent intrusion into the sacred rights of private property" and it is now increasingly regarded as a potent fiscal tool of State policy to strike the required balance required in the context of the felt needs of the times between citizens ' claim to enjoyment of his property on the one hand and the need for an equitable distribution of the burdens of the community to sustain social services and purposes on the other These words of Thomas M. Cooley in 'Law of Taxation ' Vol.2 are worth mentioning; "Artificial rules of construction have probably found more favour with the courts than they have ever deserved."
Their application in legal controversies has often times been pushed to an extreme which has defeated the plain and mani fest purpose in enacting the laws.
Penal laws have sometimes had all their meaning construed away and in remedial laws, remedies have been found which the legislature never intend ed to give.
Something akin to this has befallen the revenue laws . . " (Emphasis Supplied) There are, indeed, strong and compelling considerations against the adoption of the test suggested by Sri Ramachan dran.
Limiting of the ambit of Section 40(b) on the supposed 'real income ' test would, perhaps, lead to positions and results, whose dimensions and implications are not, to say the least, fully explored.
The test suggested by Sri Rama chandran, might on its own extended logic, validate a set off of the interest paid to one partner against interest received from another and likewise 'interest ' received from one partner on some other deal 257 ings between him and the firm against interest paid to another partner on his or her capital contribution.
The test of 'real income ' as one on which the operation of Section 40(b) could be sought to be limited is not a reliable one.
Indeed, the following observations of this Court on the concept of 'Real Income ' in State Bank of Travancore vs C.I.T. ; at 155, though made in a different context, are apposite: .
The concept of real income is certainly applicable in judging whether there has been income or not but, in every case, it must be applied with care and within well recognised limits.
We were invited to abandon legal fundamentalism.
With a problem like the present one, it is better to adhere to the basic fundamentals of the law with clarity and con sistency than to be carried away by common cliches.
The concept of real income certainly is a well accepted one and must be applied in appropriate cases but with circumspection and must not be called in aid to defeat the fundamental principles of the law of income tax as developed".
This contention of Sri Ramachandran rests on generalisation which incur the criticism of being too broad and have cer tain limitations of their own.
Contention (a) does not advance appellants ' case.
Re: Contention (b) The submissions of Sri Ramchandran on the point are that where the meaning of a word used in a statute had been judicially ascertained by a court and where the legislature, while re enacting the law on the subject, uses the same word, it must be taken to have been aware of the meaning so judicially ascertained earlier and not to have used the word with a different content.
This is, no doubt, a well recog nised guide to construction.
When words acquire a particular meaning or sense because of their authoritative construction by superior courts, they are presumed to have been used in the same sense when used in a subsequent legislation in the same or similar context.
This principle was stated by the Judicial Committee in H.H. Ruckmaboye vs Lulloobhoy Mottic hund, Moore 's Indian Appeals, Vol. 5, p. 234 at 250 thus: 258 " . it is, therefore, of considerable importance to ascertain what has been deemed to be the legal import and meaning of them, because, if it shall appear that they have long been used, in a sense which may not improperly be called technical, and have been judicially construed to have a certain meaning, and have been adopted by the Legislature in that sense, long prior to the Statute, 21 James I., c. 16, the rule of construction of Statutes will require, that the words in the Statute should be construed according to the sense in which they had been so previously used, al though that sense may vary from the strict literal meaning of them."
This principle has been reiterated by this Court in several pronouncements.
But the limitations of its application in the present cases arise out of the circumstance that the decision of the Allahabad High Court in Sri Ram Mahadeo Prasad vs Commissioner of Income tax, did not proceed or rest on any special or technical connotation of the word "interest" nor any special legal sense which that word could be said to have acquired by the earlier judicial ascertainment of its amplitude.
The decision proceeded on a construction of the relevant provision i.e. Section 10(4)(b) of the 1922 Act and on what the High Court considered as affording to the assessee a fair treatment.
Nothing particu lar stemmed from the interpretation of the expression "interest".
The appeal to this principle of construction is, in our opinion, somewhat out of place in this case.
The rules of interpretation are not rules of law; they are mere aids to construction and constitute some broad pointers.
The interpretative criteria apposite in a given situation may, by themselves, be mutually irreconcilable.
It is the task of the Court to decide which one, in the light of all relevant circumstances, ought to prevail.
The rules of interpretation are useful servants but quite often tend to become difficult masters.
It is appropriate to recall the words of Lord Reid 's in Maunsell vs olins, "Then rules of construction are relied on.
They are not rules in the ordinary sense of having some binding force.
They are our servants not our masters.
They are aids to construction, presumptions or pointers.
Not infrequently one 'rule ' points in one direction, another in a different direction.
In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular 'rule '.
" 259 This passage was referred to with approval by this Court in Utkal Contractors and Joinery vs State of Orissa, ; at 330.
Contention (b) is, therefore, not of any assistance to the appellants.
Re: Contention (c) There are certain aspects of the legal relationship amongst partners which do impart a special complexion to the question under consideration.
The point raised in these appeals in confined to a situation where a partner receives interest on the capital subscribed by him and the same partner pays interest on the drawings made by him.
A firm under the general law is not a distinct legal entity and has no legal existence of its own.
The partner ship property vests in all the partners and in that sense every partner has an interest in assets of the partnership.
However, during the subsistence of the partnership no part ner can deal with any portion of the property as his own.
In Narayanappa vs Krishtappa, ; , this Court referred to the nature of the interest of a partner in the firm and observed: " . .The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property.
Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in.
It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of the partnership.
The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property.
He would not be able to exercise his right even to the extent of his share in the business of the partnership .
In CIT vs Chidambaram, at 295 & 296 this Court observed: "Here the first thing that we must grasp is that a firm is not a legal person even though it has some at tributes of personality.
Partnership is a certain relation between 260 persons, the product of agreement to share the profits of a business. 'Firm ' is a collective noun, a compendious expres sion to designate an entity, not a person.
In income tax law, a firm is a unit of assessment, by special provisions, but is not a full person which leads to the next step that since a contract of employment requires two distinct persons viz. the employer and the employee, there cannot be a con tract of service, in strict law, between a firm and one of its partners.
So that any agreement for remuneration of a partner for taking part in the conduct of the business must be regarded as portion of the profits being made over as a reward for the human capital brought in.
Section 13 of the Partnership Act brings into focus this basis of partnership business." " . .
It is implicit that the share income of the part ner takes in his salary.
The telling test is that where a firm suffers loss, the salaried partner 's share in it goes to depress his share of income.
Surely, therefore, salary is a different label for profits, in the context of a partner 's remuneration" (Underlining Supplied) In Lindley on Partnership (14th Edn.), we find this statement of the law: " . .
In point of law, a partner may be the debtor or the creditor of his co partners, but he cannot be either debtor or creditor of the firm of which he is himself a member, nor can he be employed by his firm, for a man cannot be his own employer." (p. 30)
The position as stated above was approved by this Court in Chidabaram 's case.
In Regional Director Employees State Insurance Corpora tion, Trichur vs Ramanuja Match Industries, , this Court dealing with the question whether there could be a relationship of master and servant between a firm on the one hand and its partners on the other, indicated that under the law of partnership there can be no such relationship as it would lead to the anomalous position of the same person being both the master and the servant.
The following observations of Justice Mathew in Ellis vs Joseph Ellis & Co., were referred to with approval: 261 "The argument on behalf of the applicant in this appeal appears to involve a legal impossibility, namely, that the same person can occupy the position of being both master and servant, employer and employed." (p. 126) And observed: ". .
A partnership firm is not a legal entity.
This Court in Champaran Cane Concern vs State of Bihar and Anr., pointed out that in a partnership each partner acts as an agent of the other.
The position of a partner qua the firm is thus not that of a master and a servant or employee which concept involves an element of subordination but that of equality.
The partnership business belongs to the partners and each one of them is an owner thereof . " (p. 123) "It is thus clear that in the United States, Great Britain and Australia, a partner is not treated as an employee of his firm merely because he receives a wage or remuneration for work done for the firm.
This view is in complete accord with the jurisprudential approach.
In the absence of any statutory mandate, we do not think there is any scope for accepting the view of the Rajasthan High Court." (p. 127)
Sri Ramachandran 's contention is that both the capi tal brought in by the partners to the firm and the amounts that may be drawn by them from the partnership firm partake of the same nature and character as the funds of the partnership.
This may be so.
But in effectuating the conse quences of the recognition of this position, it is necessary to ensure that express provisions of the statute departing from the general law are not whittled down.
To the extent that the statute expressly or by necessary implication departs from the general law, the latter cannot be invoked to displace the effect of the statute.
But, if there is no such statutory departure the general principles operating in that branch of the law determine the nature of the legal relationship.
Sir Francis Bennion in his Statutory Interpretation observes: "Unless the contrary intention appears, an enactment by 262 implication imports any principle or rule of law (whether statutory or non statutory) which prevails in the territory to which the enactment extends and is relevant to its opera tion in that territory." (p. 350)
"Unless the contrary intention appears, an enactment by implication imports the principle of any legal maxim which prevails in the territory to which the enactment extends and is relevant to the operation of the enactment in that terri tory." (p. 354)
What follows is that, to the extent not prohibited by the statute, the incidents of the general law of partners are attracted to ascertain the legal nature and character of a transaction.
This is quite apart from distinguishing the 'substance ' of the transaction from its 'from '.
In Sargaison vs Roberts, [1969] 45 Tax Cases 612 at 617 & 618, Megarry, J., observed: "I appreciate that what I have to do is to construe the words used, and not to insert words which are not there, or to resort to a so called "equitable construction" of a taxing statute.
But even when I have given full weight to this consideration, I think that I am entitled to distin guish between the substance of a transaction and the machin ery used to carry it through . . " ". . "Substance" and "form" are words which must no doubt be applied with caution in the field of statutory construction.
Nevertheless, where the technicalities of English conveyancing and land law are brought into juxtaposition with a United Kingdom taxing statute, I am encouraged to look at the realities at the expense of the technicalities.
In Commissioner of Income tax vs Gillanders Arbuthnot & Co., at 418, this Court said: ". .The taxing authority is entitled and is indeed bound to determine the true legal relation resulting from a trans action.
If the parties have chosen to conceal by a device the legal relation, it is open to the taxing authority to unravel 263 the device and to determine the true character of the relationship.
But the, legal effect of a transaction cannot be displaced by probing into the substance of the transaction" (Emphasis Supplied)
The Court is not precluded from treating what the trans action is in point of fact as one in point of law also.
How do these principles operate on the present controversy?
It appears to us that if in substance interest paid by the firm to a partner and the interest, in turn, received from the partner are mere expressions of the appli cations of the funds or profits of the partnership and which, having regard to the community of interest of the partners, are a mere variations of the method of adjustment of the profits, there should be no impediment in treating them as part of the same transaction if, otherwise, in general law they admit of being so treated.
The provisions of Section 40(b) do not exclude or prohibit such an approach.
If instead of the transactions being reflected in two separate or distinct accounts in the books of the part nership they were in one account, the quantum of interest paid by the firm to the partner would to the extent of the drawings of the partner, stand attenuated.
The mere fact that the transactions are split into or spread over to two or more accounts should not by itself make any difference if, otherwise, the substance of the transaction is the same.
One of the relevant tests would be whether the funds on which interest is paid or received partake of the same character.
A broad analogy, though in itself may not be conclusive, is furnished by the idea of "mutual dealings" and the prin ciple of set off statutorily recognised in bankruptcy pro ceedings under Section 46 of the Provincial Insolvency Act and attracted also to proceedings for winding up of compa nies by virtue of Section 529 of the , where the 'mutual credit ' clause steps in to avoid the injustice, which would otherwise, arise, of compelling a creditor to pay the official assignee the full amount of the debt due from him to the insolvent, while the creditor would, perhaps, only receive a small dividend on the debt due from the insolvent to him under a pari passu payment.
This principle was recognised by this Court in Official Liquidator vs Lakshmikutty, ; The set off in this case is, no doubt, the result of a statutory provision.
In the case of partners, the special legal incidents of their relationship would substitute for the statutory provi sion and govern the situation.
Indeed, even the idea of 264 a set off itself, which presupposes a duality of entities, may be out of place in the very nature of the relationship between a firm and its partners where the former is a mere compendious reference to the latter.
But even to the extent the income tax law which identifies the firm as a distinct entity and unit of assessment goes, the idea of set off may be invoked in view of the mutuality implicit in the putative duality inherent in deeming the firm as a distinct entity under the Act for certain purposes.
The fiction may have to be pushed to its logical conclusions.
The decision of the Madras High Court in Sankaralin ga Nadar 's case speaks of income tax and equity being strangers.
To say that a Court could not resort to the so called "equitable construction" of a taxing statute is not to say that where a strict literal construction leads to a result not intended to subserve the object of the legisla tion, another construction, permissible in the context, should not be adopted.
In Commissioner of Income tax vs J.H. Gotla, , this Court said: " . . we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction.
Though equity and taxation are often strang ers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction.
Furthermore, in the instant case, we are dealing with an artificial liability created for coun teracting the effect only of attempts by the assessee to reduce tax liability by transfer . " (p. 339 40) In this respect taxing statutes are not different from other statutes.
In A. G vs Carlton Bank, , Lord Russel of Killowen, CJ said: "I see no reason why any special canons of construction should be applied to any Act of Parliament, and I know of no authority for saying that a taxing Act is to be construed 265 differently from any other Act.
The duty of the court is, in my opinion, in all cases the same, whether the Act to be construed relates to taxation or any other subject, viz. to give effect to the intention of the legislature . "
We, accordingly, accept the submission of Sri Rama chandran on this point.
In our opinion, where two or more transactions on which interest is paid to or received from the partner by the firm are shown to have the element of mutuality and are referable to the funds of the partnership as such, there is no reason why Section 40(b) should be so construed as to exclude in quantifying the interest on the basis of such mutuality.
In such circumstances the interest, if any, paid to a partner by the firm in excess of what is received from the partner could alone be excluded from deduction under Section 40(b).
Contention 'c ' is held and answered accordingly.
Re: Contention (d) Sri Ramachandran contended that circular of 1965 of the Central Board of Direct Taxes was binding on the authorities under the Act and should have been relied upon by the High Court in support of the Court 's construction of Section 40(b) to accord with the understanding of the provision made manifest in the circular.
This contention and the proposition on which it rests, namely, that all circulars issued by the Board have a bind ing legal quality incurs, quite obviously, the criticism of being too broadly stated.
The Board cannot pre empt a judi cial interpretation of the scope and ambit of a provision of the 'Act ' by issuing circulars on the subject.
This is too obvious a proposition to require any argument for it.
A circular cannot even impose on the tax prayer a burden higher than what the Act itself on a true interpretation envisages.
The task of interpretation of the laws is the exclusive domain of the courts.
However, this is what Sri Ramachandran really has in mind circulars beneficial to the assessees and which tone down the rigour of the law issued in exercise of the statutory power under Section 119 of the Act or under corresponding provisions of the predecessor Act are binding on the authorities in the administration of the Act.
The Tribunal, muchless the High Court, is an authority under the Act.
The circulars do not bind them.
But the benefits of such circulars to the assessees have been held to be permissible even though the circulars might have departed from the strict tenor of the statutory provision and mitigated the 266 rigour of the law.
But that is not the same thing as saying that such circulars would either have a binding effect in the interpretation of the provision itself or that the Tribunal and the High Court are supposed to interpret the law in the light of the circular.
There is, however, support of certain judicial observations for the view that such circulars constitute external aids to construction.
In State Bank of Travancore vs C.I.T., ; , however, this Court referring to certain circulars of the Board said: "The earlier circulars being executive in character cannot alter the provisions of the Act.
These were in the nature of concessions and could always be prospectively withdrawn.
However, on what lines the rights of the parties should be adjusted in consonance with justice in view of these circulars is not a subject matter to be adjudicated by us and, as rightly contended by counsel for the Revenue, the circulars cannot detract from the Act." (Emphasis Supplied) (p. 139)
The expression 'executive in character ' is, presumably, used to distinguish them from judicial pronouncements.
The circulars referred to in that case were also of the Central Board of Direct Taxes and were, presumably also, statutory in character.
However, this contention need not detain us, as it is unnecessary to examine whether or not such circulars are recognised, legitimate aids to statutory construction.
In the present case, the circular of 1965 broadly accords with the view taken by us on the true scope and interpretation of Section 40(b) in so far as the quantification of the inter est for purposes of Section 40(b).
Contention (d) is disposed of accordingly
Re: Contention (e) Sri Ramachandran urged that the introduction, in the year 1984, of Explanation I to Section 40(b) was not to effect or bring about any change in the law, but was intend ed to be a mere legislative exposition of what the law has always been.
An 'Explanation ', generally speaking, is in tended to explain the meaning of certain phrases and expres sions contained in a statutory provision.
There is no gener al theory as 267 to the effect and intendment of an Explanation except that the purposes and intendment of the 'Explanation ' are deter mined by own words.
An Explanation, depending on its language, might supply or take away something from the contents of a provision.
It is also true that an Explanation may this is what Sri Ramachandran suggests in this case be introduced by way of abundant caution in order to clear any mental cobwebs surrounding the meaning of a statutory provision spun by interpretative errors and to place what the legislature considers to be the true meaning beyond controversy or doubt.
Hypothetically, that such can be the possible purpose of an 'Explanation ' cannot be doubted.
But the question is whether in the present case, Explanation I inserted into Section 40(b) in the year 1984 has had that effect.
The notes on clauses appended to the Taxation Laws (Amendment) Bill, 1984, say that Clause 10 which seeks to amend Section 40 will take effect from 1st April, 1985 and will, accordingly, apply in relation to the assessment year 1985 86 and subsequent years.
The express prospective opera tion and effectuation of the 'Explanation ' might, perhaps, be a factor necessarily detracting from any evincement of the intent on the part of the legislature that the Explana tion was intended more as a legislative exposition or clari fication of the existing law than as a change in the law as it then obtained.
In view of what we have said on point (c) it appears unnecessary to examine this contention any further.
Contention (e) is disposed of accordingly.
In the result, for the foregoing reasons these appeals are allowed; the orders of the High Court under appeal set aside and the question of law referred for opin ion is answered in the affirmative in terms of para 12 (supra).
In the circumstances, there will be no orders as to the costs in these appeals.
P.S. S Appeals allowed.
[/INST]Section 40(b) of the Income Tax Act, 1961, as it stood at the relevant time, prohibited deduction of interest, salary, bonus, commission or remuneration paid by the firm to the partner.
Explanation 1 introduced thereto by the Taxation Laws (Amendment) Act, 1984, which took effect from 1st April, 1985, provided that where interest is paid by a firm to a partner who has also paid interest to the firm, the amount of interest to be disallowed shall be limited to the net amount of interest paid by the firm to the partner.
Circular No. 33D(XXV 24) of 1965 issued by the Central Board of Direct Taxes provided that where a firm pays interest to as well as receives interest from the same partner, only the net interest can be stated to have been received or paid by the firm.
The assessee appellant, a registered partnership firm, in the accounting year for the assessment year 1975 76, paid interest to the partners on the amounts standing to their respective credits.
It also received from the partners interest on their borrowings from the firm.
The Income tax Officer 244 while disallowing the amount of interest paid to the part ners did not set off the interest received from them on their borrowings.
The Appellate Assistant Commissioner allowed the claim of the appellants that only the net inter est paid to the partners after setting off the interest received from them was to be disallowed.
The Appellate Tribunal affirmed the appellate order.
The High Court an swered the reference in favour of the Revenue on the view that the Tribunal was not justified in holding that net interest should be disallowed under section 40(b) of the Act.
In these appeals by special leave it was contended for the appellants that: (a) the sole object of section 40(b) was, having regard to the special features and legal incidents of a partnership, to enable the assessment of the 'real income ' of the firm and did not require or compel the exclusion of the cross interest paid by a partner in determining the quantum to be disallowed; (b) the extent of the embargo under section 10(4)(b) of the 1922 Act on the disallowance of interest paid to a partner was judicially interpreted and ascertained in Sri Ram Mahadeo Prasad vs CIT, All.
and when the legislature re enacted those provisions in section 40(b) of the 1961 Act in substantially the same terms, legislature must be held to have used that expression with the same implications attributed to it by the earlier judi cial exposition; (c) the interest paid to a partner on the capital brought in by him and the interest received from a partner on his borrowings from the firm were both integral parts of a method adopted by the partners for adjusting the division of profits and in that sense both payments partook of the same character and it would be permissible to take both the payments into consideration in quantifying the interest and treat only such excess, if any, paid by the firm as susceptible to the exclusionary rule in section 40(b); (d) the circular of the Central Board of Direct Taxes, which was statutory in character, was binding on the authorities and the High Court was in error in taking a view of the legal position different from the one indicated in it; and (e) the amendment of 1984 inserting Explanation 1 in section 40(b), though later in point of time, constitutes a legisla tive exposition of the correct import of the provision and so construed offers a guide to the correct understanding of the provisions in section 40(b) in their application to the earlier years as well.
Allowing the appeals, the Court, HELD: 1.1 As long as there is no ambiguity in the statu tory language, resort to any interpretative process to unfold the legislative intent becomes impermissible.
The supposed intention of the legislature cannot then be ap pealed to whittle down the statutory 245 language.
If the intendment is not in the words used it is nowhere else.
[255E F] Doypack Systems Pvt. Ltd. vs Union of India, ; , referred to.
1.2 Section 40 of the Income Tax Act, 1961 opens with the nonobstante clause and directs that outgoings such as interest, salary, bonus, commission or remuneration specifi cally enumerated in cl.
(b) shall not be deducted in comput ing the income chargeable under the head "profits and gains of business or profession".
The words used therein on their own terms, are plain and unambiguous.
They manifest the intention of the legislature and must, therefore, be applied as they stand.
[255D E, F G, 256B] 1.3 Artificial and unduly latitudinarian rules of con struction, with their general tendency to 'give the tax payer the breaks ', are out of place where the legislation has a fiscal mission.
Taxation is regarded as a potent fiscal tool of State policy to achieve equitable distribu tion of the burdens of the community to sustain social services.
[256C D] Thomas M. Cooley: Law of Taxation, Vol. 2, referred to.
1.4 The test of 'real income ' as one on which the opera tion of section 40(b) could be sought to be limited is not a reliable one.
It might on its own extended logic validate a set off of the interest paid to one partner against interest received from another and likewise, interest received from one partner on some other dealings between him and the firm against interest paid to another partner on his or her capital contribution and thus lead to positions and results, whose dimensions and implications are not fully explored.
It must not, therefore, be called in aid to defeat the funda mental principles of the law of income tax.
[257 A, 256A, 256G, 257D1 State Bank of Travancore vs CIT, ; at 155, referred to.
2.1 When words acquire a particular meaning or sense because of their authoritative construction by superior courts, they are presumed to have been used In the same sense when used In a subsequent legislation In the same or similar context.
[257G] H.H. Ruckmaboye vs Lulloobhoy Mottichund, Moore 's Indian Appeals, Vol.
5, p. 234 at 250, referred to.
2.2 However, the rules of interpretation are not rules of law.
they 246 are mere aid to construction and constitute some broad pointers.
The interpretative criteria apposite in a given situation may, by themselves, be mutually irreconcilable.
It is the task of the court to decide which one, in the light of all relevant circumstances, ought to prevail.
[258E F] Maunsell vs Olins, and Utkal Contrac tors & Joinery vs State of Orissa, ; at 330, referred to.
2.3 The decision in Sri Ram Mahadeo Prasad vs CIT, All.) proceeded on a construction of the relevant provision i.e.s. 10(4)(b) of the 1922 Act and on what the High Court considered as affording to the assessee a fair treatment.
It did not rest on any special or technical connotation of the word 'interest ' nor any special legal sense which that word could be said to have acquired by the earlier judicial ascertainment of its amplitude.
The appeal to this principle of construction in the instant case is, therefore, out of place.
[258D E] 3.1 To the extent the statute expressly or by necessary implication departs from the general law, the latter can not be invoked to displace the effect of the statute.
But if there is no such statutory departure the general principle operating in that branch of law would determine the nature of legal relationship.
[261F H] Sir Francis Bennion, on Statutory Interpretation, p. 350, 354, referred to.
In the case of partners, therefore, to the extent not prohibited by section 40(b) of the Act, the incidents of the general law of partners would be attracted to ascertain the legal nature and character of a transaction.
This is quite apart from distinguishing the 'substance ' of the transaction from its 'form '.
But the legal effect of a transaction, cannot be displaced by probing into the substance of the transaction.
The Court, however, is not precluded from treating what the transaction is in point of fact as one in point of law also.
[262C D, 263A B] Sargaison vs Roberts, [1969] 45 Tax Cases 612; CIT vs Gillanders Arbuthnot & Co., ; Narayanappa vs Krishtappa; , ; CIT vs Chidambaram, ; Lindley on Partnership, (14th Edn.) p. 30; Regional Director Employees State Insurance Corporation, Trichur vs Ramanuja Match Industries, and Ellis vs Joseph Ellis & Co., referred to.
3.2 If interest paid by the firm to a partner and the inter est, in 247 turn, received from the partner are mere expressions of the application of the funds or profits of the partnership and which, having regard to the community of interest of the partners, are mere variations of the method of adjustment of the profits, they could be treated as part of the same transaction if, otherwise, in general law they admit of being so treated.
The provisions of section 40(b) do not exclude or prohibit such an approach.
[263B D] If instead of the transactions being reflected in two separate or distinct accounts in the books of the partner ship they were in one account, the quantum of interest paid by the firm to the partner would, to the extent of interest on drawings of the partner, stand attenuated.
The mere fact that the transactions were split into or spread over to two or more accounts would not by itself make any difference if, otherwise.
the substance of the transaction was the same.
[263D E] Official Liquidator vs Lakshmikutty, ; , referred to.
Even the idea of a set off itself, which presupposes a duality of entities may be out of place in the very nature of the relationship between a firm and its partners where the former is a mere compendious reference to the latter.
But even to the extent the income tax law which identifies the firm as a distinct entity and unit of assessment goes, the idea of set off may be invoked in view of the mutuality implicit in the putative duality inherent in deeming the firm as a distinct entity under the Act for certain pur poses.
The fiction may have to be pushed to its logical conclusions.
[263H 264B] 3.3 Where a strict literal construction leads to a result not intended to subserve the object of the legisla tion another construction, permissible in the context should be adopted.
Therefore, though equity and taxation are often strangers, attempts should be made that these do not remain always so.
More so, a taxing statute being not different from other statutes it is not to be construed differently.
The duty of the Court is to give effect to the intention of the legislature.
[264C, E F, G H, 265A] CITv.
J.H. Gotla, and A.G.V. Carlton Bank, , referred to.
3.4 Accordingly, where two or more transactions on which interest is paid to or received from the partner by the firm are shown to have the element of mutuality and are referable to the funds of the 248 partnership as such, section 40(b) should not be so construed as to exclude in quantifying the interest on the basis of such mutuality.
If that be so, the interest, if any paid to a partner by the firm in excess of what is received from the partner could alone be excluded from deduction under section 40(b).
[265B C] C.I.T. vs T.V. Ramanaiah & Sons, A.P., approved.
C.I.T. vs O.M.S.S. Sankaralinga Nadar & Co., Mad., overruled.
The Central Board of Direct Taxes cannot pre empt a judicial interpretation of the scope and ambit of a provi sion of the Income Tax Act by issuing circulars on the subject.
A circular cannot even impose on the tax payer a burden higher than what the Act itself on a true interpreta tion envisages.
Nor can it detract from the Act.
The task of interpretation of the laws is the exclusive domain of the courts.
The circulars do not bind them.
[265E F, 266D, 265F, G H] State Bank of Travancore vs CIT, ; , re ferred to.
Since the circular of 1965 broadly accords with the view taken on the true scope and interpretation of section 40(b) as regards qualification of interest it is unnecessary to examine whether or not such circulars are recognised legiti mate aids to statutory construction.
[266E F] 5.
An 'Explanation ' is generally intended to explain the meaning of certain phrases and expressions contained in a statutory provision.
There is no general theory as to the effect and intendment of the Explanation except that the purpose and intendment of the Explanation are determined by its own words.
An Explanation depending on its language, might supply or take away something from the contents of a provision.
An Explanation may also be introduced by way of abundant caution in order to clear the meaning of a statuto ry provision and to place what the legislature considers to be the true meaning beyond controversy or doubt.
[266G 267B] In the instant case, the notes on clauses appended to the Taxation Laws (Amendment) Bill, 1984 say that clause 10 which seeks to amend section 40will take effect from 1st April, 1985 and will, accordingly, apply in relation to the assess ment year 1985 86 and subsequent years.
In view of the express prospective operation and effectuation of the Expla nation 249 it is not necessary to examine its possible purpose any further.
[267C E]
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<s>[INST] Summarize the judgementivil Appeal No. 3901 of 1981.
From the Judgment and Order dated 22.1.1987 of the Rajasthan High Court in S.B. Civil Revision No. 672 of 1983.
V.M. Tarkunde and L.K. Pandey for the Appellant.
J.P. Goyal, R.K. Gupta, K.K. Gupta, (NP) and Rajesh, (NP) for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the judgment of Rajasthan High Court dismissing a civil revision application filed by the appellant in the following circumstances.
The appellant, a registered Society, filed the suit out of which this appeal arises in the court of the District Judge, Jaipur City in respect of an immovable property through its the then Secretary which was numbered as Suit No. 11 of 1973.
The counsel engaged by the appellant were Sri Satya Narain Sharma and Sri Shyam Bihari Agarwal.
The suit was later transferred to the court of Additional Dis trict Judge No. 1, Jaipur City where it was renumbered as Suit No. 116 of 1974.
After the institution of the suit, an election of the office bearers of the Society was held on 1.6.1973 and according to the appellant 's case one Sri Laxman Das Swami was elected as the Secretary.
On 4.9.74 a prayer for withdrawing the suit was made by one Hari Narain Swami through another lawyer claiming to have been elected as the Secretary of the Society.
In support of his claim of having been elected as the Secretary of the Society Hari Narain Swami produced certain documents on the basis of which the Trial Court allowed the suit to be withdrawn.
According to the case of the appellant, Hari Narain Swami was not elected as the Secretary and had no locus standi to withdraw the suit.
Since no notice was given of his applica tion for withdrawal of the suit either to the then Secretary Laxman Das Swami or to the learned advocates Sri Satya Narain Sharma or Sri Shyam Bihari Agarwal, through whom the suit had been instituted, none of them had any knowledge of the order passed by the court.
Later, in the next election, another Secretary named Jeeva Nand Swami was elected, and when he 236 learnt about the fate of the suit, an application was filed for recalling the order of withdrawal and restoring the suit to its file.
The prayer was contested and the trial court rejected the application.
The appellant Society challenged the order before the High Court by a petition under section 1 15 of the Code of Civil Procedure which was also dismissed by the impugned judgment.
The trial court after holding that the appellant 's application filed under section 15 1 of the Code of Civil Proce dure, was not maintainable, proceeded further to consider the question as to who was the duly elected Secretary of the Society, entitled to prosecute or withdraw the suit and accepted the case of Hari Narain Swami.
The High Court has agreed with the trial court that the application under section 15 1 of the Code of Civil Procedure was not maintainable.
While agreeingwith the argument of the appellant that the trial court had committed several serious errors in deciding the question as to who was the elected Secretary of the Society on the relevant date in favour of the respondent the High Court observed that the mistake could not be corrected in the present situation.
It has been contended by Mr. Tarkunde, the learned counsel for the appellant, that the application under section 15 1 of the Code of Civil Procedure, for restoration of the suit was maintainable and the error committed by the trial court while recording the finding on the merits of the case was such which the High Court ought to have rectified.
The learned advocate representing the respondents has strenuous ly argued that the trial court has no jurisdiction to recall its order permitting the withdrawal of the suit under its inherent power and the High Court has rightly held that the only remedy of the appellant is to file a fresh suit.
The finding recorded by the trial court on the merits of the case has also been relied upon.
The learned counsel for the appellant has challenged the correctness of the trial court 's finding in favour of the respondent 's case that Hari Narain Swami had been duly elected as the Secretary of the appellant Society and had, therefore, full authority to withdraw the suit, on several grounds.
Since we are of the view that the case has to go back to the trial court for reconsideration of the evidence on this point, we do not propose to deal with the argument on behalf of the appellant in detail, except mentioning one of them.
It has been stated that a dispute, relating to the election of the Secretary of the Society, had arisen between the parties which ultimately went before the Registrar of the Cooperative Societies, who decided the matter in 237 favour of Laxman Das Swami and against Hari Narain Swami.
A writ petition filed thereafter by Hari Narain Swami before the High Court (registered as C.W.P. No. 1406 of 1975) was dismissed.
It is said that the trial court failed to appre ciate the impact of the judgments of the Registrar and the High Court which has vitiated ' the impugned decision.
In reply, it has been argued by the learned counsel for the respondents that the High Court in C.W.P. No. 1406 of 1975 did not decide the dispute finally and left it to be settled by the civil court.
Beyond pointing out that even according to the impugned judgment of the High Court the errors in the judgment of the trial court are serious, we do not consider it appropriate to deal in detail with the arguments of the learned counsel, as the disputed question has to go back for reconsideration.
The main question which requires consideration, however, is whether the trial court has jurisdiction to cancel the order permitting the withdrawal of the suit under its inherent power, if it is ultimately satisfied that Hari Narain Swami was not the Secretary of the appellant Society and was, therefore, not entitled to withdraw the suit.
The position is well established that a court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties.
The principle was correctly discussed in the judg ment in Sadho Saran Rai and Others vs Anant Rai and Others, AIR 1923 Patna 483, pointing out the distinction in cases between fraud practised upon the court and fraud practised upon a party.
Let us consider the cases in which consent decrees are challenged.
If a party makes an application before the Court for setting aside the decree on the ground that he did not give his consent, the court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a fact was lacking and the court was induced to pass the decree on a fraudulent repre sentation made to it that the party had actually consented to it.
However, if the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case but his consent has been procured by fraud, the court cannot investigate the matter in the exercise of its inherent power, and the only remedy to the party is to institute a suit.
It was succinctly summed up in the aforementioned case that the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated.
The principle has been followed in this country for more than a century.
In Vilakathala Raman vs Vayalil Pachu, 27 Madras Law Jour 238 nal Reports 172, the trial court had vacated its previous order regarding satisfaction of decree on the ground that the same was obtained by the judgment debtor 's fraud on the court.
The High Court, while confirming the order, said that in the exercise of inherent power under section 15 1 of the Code of Civil Procedure a court can vacate an order obtained by fraud on it.
Reliance had been placed on an old decision of Bombay High Court of 1882 and a Madras decision of 1880.
In Basangowda Hanmantgowda Patil and Others vs Churchigirigowda Yogangowda and Another, I.L.R. 34 Bombay 408, the defendant applied to the court to set aside a compromise decree on the ground that he had not engaged the lawyer claiming to be representing him and had not authorised him to compromise the suit.
The court accepted his plea and ruled that it is the inherent power of every court to correct its own pro ceedings when it has been misled.
Similar was the view of the Calcutta High Court in several decisions mentioned in Sadho Saran 's case (supra).
The ratio has been later fol lowed in a string of decisions of several High Courts.
The same principle applies where a suit is permitted to be withdrawn on the basis of a prayer purported to have been made on behalf of the plaintiff.
The courts below were, therefore, not right in holding that the application of the appellant invoking the inherent jurisdiction of the court was not maintainable.
If the appellant 's case is factually correct that Hari Narain Swami was not its elected secretary and was, therefore, not authorised to withdraw the suit, the prayer for withdrawing the suit was not made on behalf of the appellant at all and the impugned order was passed as a result of the court being misled.
Such an order cannot bind the appellant and has to be vacated.
The trial court was thus clearly wrong in dismissing the appellant 's application as not maintainable, and the High Court should have inter vened in its revisional power on the ground that the trial court had failed to exercise a jurisdiction vested in it by law.
So far the finding of the trial court that Hari Narain Swami was not the elected Secretary of the appellant Society with authority to withdraw the suit is concerned, the same suffers from several errors and requires a recon sideration.
Even in the view of the High Court that is the position, but it declind to exercise its revisional power on the assumption that it had no jurisdiction to do so.
We, therefore, allow the appeal, set aside the impugned judg ments of the trial court and the High Court and r. emit the matter to the trial court for reconsideration of the case on merits.
The parties shall be allowed to lead further evi dence in support of their cases.
The costs will abide the final result in the litigation.
G.N. Appeal allowed.
[/INST]The Municipal Board, Jaunpur invited applications for the post of Tax Inspector.
The employees working in the Revenue Department of the Municipal Board were eligible for consideration alongwith the outsiders.
Respondent No. 3, the seniormost Tax Collector in Municipal Board, was called for interview but he refused to appear on the plea that the post of Tax Inspector should be exclusively filled by promotion and being the seniormost Tax Collector he should be promoted without considering any outsider.
Ignoring his claim the Municipal Board selected and appointed the appellant to the post of Tax Inspector.
Respondent No. 3 represented to the Commissioner challenging the appellant 's appointment.
The Commissioner set aside the order of the Municipal Board and cancelled the appellant 's appointment holding that pursuant to the directions contained in the Government 's Order dated 10.4.50, Respondent No. 3 was entitled to promotion.
The appellant challenged the Commissioner 's order before the High Court by filing a writ petition.
Disagreeing with the decision of another Single Judge, a Single Judge of the High Court dismissed the writ petition, and affirmed the order of the Commissioner on the findings that the appellant 's ap pointment was made in violation of the Government 's Order dated 10.4.50.
Hence this appeal.
202 Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
The orders of the High Court and the Commis sioner are not sustainable in law.
[208B] 1.1.
It is a well settled principle of judicial disci pline that if a Single Judge disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision.
But in the instant case, the learned Single Judge of the High Court acted contrary to the well established principles of judi cial discipline in ignorning those decisions.
[205B C] 2.
Section 71 of the U.P. Municipalities Act, 1916 before its amendment in 1964 did not confer power on the State Government to issue any direction regulating the conditions of service of Municipal employees.
[205D] Ramesher Prasad and Ors.
vs Municipal Board, Pilibhit, A.I.R. 1958 All. 363; Ram Kripal Garg vs State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur vs Municipal Board, Mirzapur and Ors.
, Writ petition No. 235 of 1970 dated 20.10.1972 approved.
I Even after conceding supervisory power to the State Government to issue directions laying down conditions of service of Municipal employees, there are no directions in the Government Order dated 10 4 50 requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment.
Therefore, it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion.
[205G; 207D] 2.2 In the instant case, the Municipal Board gave oppor tunity to its employees working in the revenue class of service to appear for selection in competition with outsid ers.
Respondent No. 3 however did not avail the opportunity for which he himself is to be blamed.
The Municipal Board acted within its jurisdiction in making appointment to the post of Tax Inspector by direct recruitment.
[207E] 2.3 A Govt.
Order declared ultra vires by the High Court, could not be revived by any subsequent Govt.
Order without there being any statutory power for the same.
[205E] 3.
It is an elementary principle of natural justice that no person 203 should be condemned without hearing.
The order of appoint ment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording an opportunity of hearing to him.
Any order passed in violation of the principles of natural justice is rendered void.
In the instant case, there is no dispute that the Commissioner 's order had been passed with out affording any opportunity of hearing to the appellant.
Therefore the order was illegal and void.
The High Court committed serious error in upholding the Commissioner 's order setting aside the appellant 's appointment without giving any notice or opportunity to him.
[207G H; 208A]
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<s>[INST] Summarize the judgementAppeal No. 128 of 1960.
Appeal by special leave from the judgment and decree dated November 4, 1955, of the Punjab High Court in R. section A. No. 493 of 1950.
K. C. Sarpal, section K. Mehta and K. L. Mehta, for appellant.
Anant Ram Whig and J. B. Agarwal, for respondent No. 1. 1962.
September 14.
The judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is filed against the judgment and decree of the High Court of Punjab, at Chandigarh, in Second Appeal No. 493 of 1950 setting aside the order of the Subordinate judge, Amritsar, confirming that of the Revenue Officer, Amritsar, decreeing the appellant 's suit.
The subject matter of the appeal is land measuring 9 kanals and 2 marlas bearing Khasra Nos. 292 and 296 in mauza Kot Syed Mahmud,in the District of Amritsar; the previous corresponding Khasra Nos.
of the land were 324 and 328.
This land formed part of a larger area which originally belonged to a number of co sharers, including Teja Singh and jhandha Singh.
There was a partition among the said co sharers and pursuant to that partition, on April 20, 1929 an application was filed before the Revenue Authorities 57 for mutation of the names in accordance with the terms of the partition; and the petition was signed by all the co sharers including Teja Singh and jhandha Singh.
It was stated in the petition, marked as exhibit
D 6 in the case, that in respect of the said Khasra numbers one share should be entered in the name of Teja Singh and 7 shares in the name of jhandha Singh.
This fact is not admitted.
But in the mutation that was effected on August 26, 1929 the entire extent of the said Khasra numbers was shown against Teja 'Singh alone.
The mutation number was 960.
On August 10, 1934, jhandha Singh, discovering the mistake committed in the revenue record, applied to the Revenue Authorities for correcting the said mistake.
The Revenue Authorities enquired into the matter from August 10, 1934, to October 31.
The record of that enquiry discloses that Mula Singh, the brother of Teja Singh Teja Singh died and Mula Singh was his heir admitted the mistake made in the revenue record before the concerned authorities.
That apart, they had before them a report of the enquiry made by a subordinate officer of the revenue department tracing the history of the said Khasra numbers and 'also giving the relevant facts, namely, the partition between the co sharers and the joint Application filed by them for mutation of their names in respect of the plots allotted to each one of them.
On the material so placed before them, the Revenue Authorities corrected the mistake, and against mutation ,No. 1490 the correct shares of Teja Singh and Jhandha Singh, namely, 1/8 and 7/8 respectively were given.
On October 24, 1934, i.e., after jhandha ,Singh had filed the application for correcting the mutation No. 960, Mula Singh executed a sale deed conveying the said land bearing Khasra numbers 324 and 328 in favour of Gurbaksh Singh, the appellant, i.e., on the very date when Mula Singh had to appear before the Revenue Authorities.
The appellant obtained a security bond from Mula Singh to indemnify him against any loss that might be caused to him in 58 respect of the said property; he also paid the bulk of the consideration only on October 22, 1937, i.e., after three years of the sale deed.
jhandha Singh in his turn sold his 7/8 share in the said Khasra numbers, along with others, to Gopal Singh from whom Nikka Singh, the first respondent, purchased the said share by a sale deed dated October 27, 1936.
The appellant filed a suit under section 117 of the Punjab Land Revenue Act, 1887, out of which the present appeal arises, in the revenue court for a declaration of his exclusive title to the said two Khasra numbers, and in that suit Nikka Singh, the first respondent, and Mula Singh, the second respondent, were the defendants.
The suit has had a chequered career and it.
is not necessary to trace it.
It would be enough if we start with the decision of the Subordinate judge dated February 14, 1949, to whose file the suit was transferred from the file of the revenue court by the District judge after it was remanded by the High Court on an earlier occasion.
The learned Subordinate judge expressed his opinion on the relevant issue thus: . . so far as the land in suit is concerned.
, Mula Singh had sold it to the plaintiff on 24th October, 1934, and any admission by him made on 10th August, 1936 would not affect the plaintiff.
Under Section 37 of the Land Revenue Act, a mutation can be based either on facts proved or admitted.
No facts had been proved before the Officer who attested mutation No. 1490, and Mula Singh was nobody to admit any facts in relation to land which he had sold two years before to the plaintiff.
The mutation entry 1490 was therefore not properly made and I decide issue No. 11 accordingly.
" It will be seen from the aforesaid observations that the learned Subordinate Judge based his finding on the assumption that the admission of Mula Singh 59 could not bind the appellant who purchased his property before the said admission and that there was no the mutation entry No. 1490.
On appeal the learned District judge, though he made certain observations indicating his line of thought, did not give any definite finding on the question of title, but he dismissed the appeal on the finding that the appellant was a bona fide purchaser in good faith.
The first respondent preferred a second appeal to the High Court.
The High Court held that the correction of the earlier mutation No. 960 was made with the consent of both the parties and there is a presumption attached to the correctness of the later mutation and that the appellant was fully cognizant of the real state of affairs, namely, that Mula Singh had only 1/8 share in the said Khasra numbers.
On those findings, the decree of the learned Subordinate judge was set aside and the plaintiff 's suit was dismissed with costs throughout.
Hence the appeal.
Learned counsel for the appellant raised before us the following points: (1) The High Court has no jurisdiction under sections 100 and 101 of the Code of Civil Procedure to set aside concurrent findings arrived at by the two lower courts.
(2) Under section 37 of the Punjab Land Revenue Act there is a presumption in favour of an entry in the revenue record if it is made in accordance with the facts proved or admitted to have occurred; but, as in the present case the entry was corrected on the admission of Mula Singh after he transferred his interest in favour of the appellant, the said admission could not constitute a legal basis for the said entry and therefore no presumption under that section would attach to that entry.
It is true that as early as 1931 the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact however gross the error may seem to be, and the said ruling has since been followed by all the 60 courts in India and accepted by this Court in a number of decisions.
But in this case the learned District judge has not given any finding on the question of title, but contented himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh.
The question of title was , therefore, left open and the High Court was certainly within its right in giving its own finding thereon.
The finding given by the learned District judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipsi dixit, Nor did the District judge 'consider the impact of the provisions of section 41 of the Transfer of Property Act on the facts of the case.
Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court.
Section 41 of the Transfer of Property Act reads: " 'Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not.
be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
" The general rule is that a person cannot confer a better title than he has.
This section is an exception to that rule.
Being an exception, the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had, after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith.
In this case the facts are tell tale and they establish beyond doubt that the appellant had 61 the knowledge that the title of his transferor was in dispute and he had taken a risk in purchasing the same.
The appellant and Mula Singh belong to the same village Kot Syed Mahmud.
Mula Singh sold his property, to the appellant on the very date on which he had to appear before the Revenue Authorities.
Though the sale deed was executed on October 24, 1934, the consideration was actually paid only three years thereafter i.e., on October 22, 1937.
The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to, him in the property in dispute.
These facts show that the appellant had knowledge of the defect in the title of Mula Singh.
It is, therefore, not possible to hold that he had purchased it in good faith.
The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful.
There are no permissible grounds for challenging the correctness of that finding before us in an appeal under article 136 of the Constitution.
Nor do we see any merits in the contention that . no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the condition given in the section are not satisfied.
Section 37 of the Punjab Land Revenue Act reads: "Entries in records of rights or in annual records, except entries made in annual records by patwaris under clause (a) of section 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in.
subsequent records otherwise than by (a) making entries in accordance with facts proved or admitted to have occurred; (b) making such entries as are agreed to by all the parties interested therein or are supported 62 by a decree or order binding on those parties; x x x x Section 44 says that an entry made in a record of rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of that Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
If the entry No. 1490 substituting entry No. 960 had been made in strict compliance with section 37 of the Punjab Land Revenue Act, it cannot be disputed that there would be a presumption that the new entry was lawfully substituted for the old.
In that event the old entry should yield to the new entry.
This presumption is no doubt rebuttable.
There is force in the contention of learned counsel that Mula Singh, having parted with the interest in the property, could not have admitted the correctness of the new entry or agreed to have the old entry corrected in the manner done so as to bind a purchaser.
But that contention does not avail him in the present case as we are satisfied on a perusal of the record that mutation entry 1490 had been made in accordance with the facts proved before the Revenue Authorities.
There were the following pieces of evidence before the Revenue Authorities, among others: (1) evidence of Mula Singh; (2) the report of the subordinate revenue officer with all the connected annexures, including exhibit D 6, wherein the terms of the partition were recited.
On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did.
It must, there fore, be held that the provisions of section 37(a) of the Punjab Land Revenue Act were satisfied.
If so, there is a presumption that the later entry was correct.
The appellant did not adduce any evidence to rebut the said presumption.
On the other hand, exhibit D 6, the application dated April 20, 1929, for mutation of names in the revenue record, signed by all the cosharers contained the following recital: 63 "Entries with respect to the following Khasra Nos. may be made in the revenue papers in the name of Teja Singh, co sharer No. 5 to the tune of one share and Bhai jhandha Singh co sharer No. 2, to the tune of seven shares: 324 3.16, 328/5.06 etc.
The High Court was, therefore, right in holding that there was a presumption in favour of the correctness of the entry and the appellant had failed to rebut the same.
The judgment of the High Court is correct and the appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]The lands of village Gudur were irrigated by tanks which received water from the Venkatagiri river through the "Gudur anicut system".
The Government proposed to make alterations in the Chennur anicut up the river for supplying water to the Chennur tank for irrigating lands of village Chennur.
The residents of village Gudur filed a suit for a declaration that the Government had no right to alter or extend or add to the Chennur anicut over the river, and stated in the plaint that it was not necessary to ask for a permanent injunction as the Government was bound to give effect to the declaration granted by the Court.
Held, that the suit was barred by section 4 of the Madras irrigation Tanks (Improvement) Act, 1949.
Section 4 provided 309 that no court shall entertain any suit for an injunction to restrain the exercise of any powers conferred on Government by section 3.
Section 3 empowered the Governtnent to "raise the full tank level of any tank or to take any other measures for increasing its capacity or efficiency".
The proposed alterations were within section 3 as they would increase the efficiency of the Chennur tank by making a larger supply of water available within the holding power of the tank.
It was not correct to say that section 3 only authorised improvements in the tank itself or in the supply channels from the tank but not in the anicut.
Though the plaintiffs did not formally ask for an injunction, the suit, in effect, was one for an injunction to restrain the Government from exercising its powers under section 3.
It is clear that the action proposed to be taken by Govern ment was under the powers given under s.3.
The mere fact that no notice as required by r. 5 specifying the nature of the improvement, its cost etc.
was issued did not indicate that the action was not under section 3 nor did it invalidate the order proposing the improvement.
The proposed action had not been taken when the suit was filed and there was still time to publish the notice.
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<s>[INST] Summarize the judgementWrit Petition (Crl.) No. 124 of 1988; (Under Article 32 of the Constitution of India) M.C. Kapadia, Y.P. Dhingra, B.K. Satija and S.S. Khanduja for the Petitioner.
P.S. Poti and M.N. Shroff for the Respondent.
The following Order of the Court was delivered: O R D E R After hearing learned counsel for the parties at quite some length, we are satisfied that the failure on the part of the State Government to consider and decide the representation made to them by the petitioner against his detention by an order of detention dated 11th June, 1987 passed by the Commissioner of Police, Surat City under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985, makes his continued detention invalid and constitutionally impermissible.
Apart from various other contentions, Shri Kapadia, learned counsel for the petitioner rightly contended that there was no explanation at all as to why the representation made by the petitioner to the State Government was not attended to and kept pending.
In view of the wholly unexplained and unduly long delay rather the undeniable failure on the part of the State Government in the disposal of the representation renders the detention of the petitioner illegal.
On the view that we take, there is no need to deal with various contentions 830 raised by him on behalf of the petitioner.
The learned counsel drew our attention to paragraph 8(e) of the Writ Petition where the petitioner avers inter alia that he had made a representation dated 15th July, 1987 to the Police Commissioner, Surat City, as also to the State Government but 'both the authorities had not considered the representation so made with utmost promptitude and that there was in fact no disposal of the said representation by the detaining authority as well as the State Government '.
This assertion of his is sought to be met by the Commissioner of Police, Surat City, the detaining authority, in the counter affidavit.
It is averred in paragraph III(e) that he had received the representation on 21st July, 1987 and rejected it on the same day after due consideration.
This is not a substantial compliance of the constitutional rights enshrined in article 22(5) of the Constitution.
The petitioner had the right not only to make a representation to the detaining authority but also to the State Government which had the power of revocation.
In view of this, Shri P.S. Poti, learned counsel appearing on behalf of the State Government, with his usual fairness, rightly accepts that the denial in paragraph III(e) of the counter affidavit was not sufficient.
The fact remains that the allegation made by the petitioner that he had made a further representation to the State Government has not been controverted.
The State Government has disdained from filing any counter affidavit for obvious reasons.
In Mohinuddin vs District Magistrate, Beed & Ors., ; this Court had occasion to deal with this aspect.
In that case, there was wholly unexplained, unduly long delay in the disposal of the representation by the State Government and it was held that further detention of the detenu was rendered invalid and constitutionally impermissible.
The right of representation under article 22(5) is a valuable constitutional right and it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed.
It was observed by one of us (SEN,J.): "We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reasons for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws.
The history of personal liberty is largely the history of insistence on observance of the procedural safeguards.
" It was next observed: 831 "It goes without saying that the constitutional right to make a representation guaranteed by article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made.
The right of representation under article 22(5) is a valuable constitutional right and is not a mere formality.
The representation made by the appellant addressed to the Chief Minister could not lie unattended to in the portals of the Secretariat while the Chief Minister was attending to other political affairs.
" In view of the failure in the disposal of the representation by the State Government, it must be held that the further detention of the petitioner is illegal and constitutionally impermissible.
The writ petition must therefore succeed and is allowed.
The order of detention passed by the Commissioner of Police, Surat City under sub section
(2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 is accordingly quashed.
We direct that the petitioner be set at liberty forthwith.
N.P.V. Petition allowed.
[/INST]The appellants are a Company and its Managing Director.
The Company imported two consignments of refined industrial Coconut oil.
The ships carrying the aforesaid cargo arrived at the port of destination on 10th September, 1982 and 22nd September, 1982.
The appellant No. 1 filed the bills of entry for release of the said cargo in the office of the Assistant Collector of Customs.
Instead of release of the cargo, notices to show cause were received by the appellant on the allegation that the import of industrial coconut oil was not legal as it was a canalised item.
The appellant No. I was also called upon to show cause as to why the cargo should not be confiscated under section 111(d) of the and also as to why he should be not penalised under Section 112 thereof.
The appellant showed cause and took the stand that import of industrial coconut oil was not banned under the import policy of the Government for the relevant period.
When personal hearing was afforded, it was also pointed out that the notices issued by Respondent No. 3 were the outcome of bias, and that the Joint Chief Controller of Imports and Exports had taken undue interest in the matter.
By the adjudication orders dated 17th December, 1982 and 20th December, 1982, the respondent No. 3 came to the conclusion that 953 "coconut oil", whether edible or not, were canalised items and fell within the ambit of Appendix 9 Para 5(1) of the Import Policy of 1980 81, and that it was also not an item under the o.
G.L. of 1980 81 Policy.
It was held that the items that were imported were liable to be confiscated under section 111(d) of the , but an option was given to redeem the goods on payment of Rs.3 crores and Rs.2 crores respectively as redemption fines.
The appellants filed two Writ Petitions challenging the action of the Collector.
The Writ Petitions were heard by a Full Bench of the High Court.
Two Judges held that the writ petitions were liable to be dismissed, while the third Judge took the view that the action of the Collector was totally untenable and that the writ petitions should be allowed and the order of the Collector should be set aside.
The majority of the Judges were also of the view that the quantum of redemption fine should be considered by the Customs Appellate Tribunal.
In the appeals to this Court it was contended on behalf of the appellants: (1) The import policy of which year would be applicable the period during which the licences were issued or the time when import actually took place.
(2) Whether "coconut oil" appearing in para 5 of Appendix 9 of the Import Policy of 1980 81 was confined to the edible variety or covered the industrial variety.
(3) Whether in the face of the decision of the Board and Central Government as the statutory appellate and revisional authorities, it was open to the Collector functioning in lower tier to take a contrary view of the matter in exercise of quasi judicial jurisdiction, and (4) Whether the orders of the Collector were vitiated for breach of rules of natural justice, and collateral considerations in the making of the order.
Dismissing the Appeals, ^ HELD: 1.
The High Court has come to the correct conclusion that the terms of the Import Policy of 1980 81 would apply to the facts of these cases.
[957F] In the instant case, the licences were either of 1980 or 1981 and were revalidated from time to time subject to the condition that items which do not appear in Appendices 26, 5 and 7 of the Import Policy of 1982 83 will not be imported.[957D] 2(a) Whatever may have been the reason for specifying 'edible and non edible ' classification in 1981 82, if 'coconut oil ' takes within its 954 fold all varieties, it must follow that in 1980 81, all varieties of coconut oil were included in paragraph 5 of Appendix 9.
[958H;959A] (b) If 'coconut oil ' of the industrial variety was covered by paragraph 5 of Appendix 9 then it would not have been included in Appendix 10 and, therefore, could not have been imported under OGL.
[958C] (c) In Appendix 9, no classification of coconut oil is given and, therefore, all varieties of coconut oil should be taken as covered by the term.
[958D] (d) When a customer goes to the market and asks for coconut oil to buy, he is not necessarily supplied the edible variety.
Coconut oil is put to less of edible use than non edible.
[958E] (e) The S.T.C. was not competent to bind the customs authorities in respect of their statutory functioning, and if on actual interpretation it turns out that 'coconut oil ' covered what the appellants have imported, the fact situation cannot take a different turn on account of the letter of the S.T.C.
At the most, it may have some relevancy when the quantum of redemption fine is considered by the Tribunal.
[959C D] 3.
In a tier system, undoubtedly decisions of higher authorities are binding on lower authorities and quasi judicial Tribunals are also bound by this discipline.
However, what the Court is now concerned with is not disciplining the Collector in his quasi judicial conduct, but to ascertain what the correct position in the matter is.
[959H;960A B] 4.
The observance of Rules of Natural Justice is not referable to the fatness of the stake but is essentially related to the demands of a given situation.
The position here is covered by statutory provisions and it is well settled that Rules of Natural Justice do not supplant but supplement the law.
[960D E] Broome vs Cassell & Co., ; referred to.
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<s>[INST] Summarize the judgementAppeal No. 624 of 1960.
Appeal by special leave from the judgment and order dated May 30, 1960 of the Mysore High Court in Civil Revision Petition No. 1098 of 1959.
K. R. Karanth and R. Gopalakrishnan, for the appellant.
A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan, for the respondent.
B. R. L. Iyengar and T. M. Sen, for the State of Mysore (On Notice issued by the Court).
February 27.
The Judgment, of the Court was delivered by SHAH, J. Smt.
Vimla hereinafter referred to as the plaintiff filed suit No. 73 of 1956 in the court of the Subordinate Judge, South Kanara, for a decree for 1016 possession of lands, buildings, house sites described in sch.
A and movable properties described in sch.
B and for mesne profits in respect of properties described in sch.
A and for a decree for possession and management and for account of the properties described in sch.
C and institutions alleged to be the private family religious endowments in sch.
D. The plaintiff claimed that on the death of her father Shri Dharmasthala Manjayya Heggade on August 31, 1955, she became entitled to the properties in suit but the defendant wrongfully possessed himself of those properties.
The plaintiff valued the properties in schs.
C and D under section 28 of the Madras Court fees and Suits Valuation Act, 1955 at Rs. 21,000/ and paid a court fee of Rs. 275/ .
She valued the lands in schedule A for purposes of jurisdiction at 30 times the assessment and separately valued the buildings and paid court fee on that footing.
On June 28, 1956, the Subordinate Judge ordered on an objection raised by his office that the amount of Rs. 34,577/ paid as court fee by the plaintiff was adequate.
Then followed a course of proceedings for which not many precedents may be found.
On September 9, 1950, the defendant filed his written statement raising an objection inter alia to the valuation of the properties in suit and the court fee exigible on the claim.
The trial court then raised an issue about the adequacy of the court fee, paid by the plaintiff.
On February 13, 1957, the defendant applied for the appointment of a Commissioner to value the properties.
The court dismissed the application and declared that the court fee paid was adequate.
In Revision Petition 272 of 1957 preferred by the defendant to the High Court of Judicature at Bangalore, the order passed by the Subordinate Judge was set aside and it was directed that the trial court do " ascertain the value of the properties for purposes of court fee in accordance with law after giving full opportunity to the parties and if need be by appointing a Commissioner to ascertain the present market value of the suit Schedule properties and decide the issue afresh on merits.
" Pursuart to this direction, a Commissioner was appointed by 1017 the Subordinate Judge.
The Commissioner submitted his report as to valuation of the properties.
Objections were raised by the defendant to that report and a further report was submitted by the Commissioner.
On the direction of the Subordinate Judge, a supplemental report was submitted by the Commissioner.
After hearing the parties, the Subordinate Judge held that the properties described in sch.
D were " extra commercial " and fixed court fee was exigible in respect of the claim for possession thereof, that pro perties described in sch.
D were " trust properties " and section 28 of the Madras Court fees and Suits Valuation Act applied thereto as the dispute related to the right of management between persons claiming to be rival trustees, that the houses built on revenue paying lands had to be valued according to their market value and not at 30 times the land assessment and that the lands in sch.
A were worth Rs. 7,74,665/ and the house sites were worth Rs. 27,625/ .
The plaintiff paid the additional court fee as directed by the court,.
Against the order passed by the Subordinate Judge, the plaintiff and the defendant applied by separate petitions in revision to the High Court of Mysore.
The High Court heard the Advocate General of the State and substantially confirmed the order passed by the Subordinate Judge except as to an institution described as " Nelliyadi Beedu ", in respect of which the High Court directed the trial court to determine whether the institution was " extra commercial " after giving an opportunity to both parties to put forth their contentions and to lead evidence in that behalf.
Against that order of the High Court, this appeal has been preferred by the defendant with special leave under article 136 of the Constitution.
The Court fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action.
By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of 1018 its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years.
We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint.
Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State.
How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate.
Again, the jurisdiction in revision exercised by the High Court under section 1 15 of the Code of Civil Procedure is strictly conditioned by cls.
(a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction.
The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior court by appeal or in revision against the order adjudging payment of court fee payable on the plaint.
But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court.
Reliance in support of that contention is placed upon sub section
(2) of section 12.
That sub section, in so far as it is material, provides: " Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim. plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient.
All questions arising on such pleas shall 1019 be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.
If the court decides that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in accordance with the court 's decision and the deficit fee shall be paid. . " But this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision on that question.
Our attention has not been invited to any provision of the Madras Court fees Act or any other statute which enables the defendant to move the High Court in revision against the decision of the court of first instance on the matter of court fee payable on a plaint.
The Act, it is true by section 19, provides that for the purpose of deciding whether the subject matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon.
The anxiety of the Legislature to collect court fee due from the litigant is manifest from the detailed provisions made in ch.
III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision, against an order determining the court fee payable.
In our view, the High Court grievously erred in entertaining revision applications on questions of court fee at the instance of the defend.
ant, when no question of jurisdiction was involved.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
[/INST]Section 51 of the Central Provinces Local Self Government Act, 1920 empowered a district council, subject to the previous sanction of the local Government, to impose "any tax, toll or rate, other than those specified in SS.
24, 48,49, and 50.
" On March 12, 1935, an Independent.
Mining Local Board functioning in the area in which the petitioners were working certain mines situated therein, and having vested in it all the powers of a district council, resolved to impose a tax on coal, coal dust and coke manufactured at the mines or sold within the territorial jurisdiction of the Board.
The petitioners who were served with notices of demand requiring them to pay certain sums of money as the tax due by them for despatches of coal from their mines, challenged the legality of the levy of the tax on the grounds, inter alia (1) that the Act which by section 51 authorised the imposition of the tax, had been passed by the local legislature without the previous sanction of the Governor General, thereby contravening section 80A(3) of the Government of India Act, 1915, and that even if it was found that the Act was validly passed before the coming into force of the Government of India Act, 1919, which introduced section 80A into the Act of r 1915, the power conferred by section 51 to levy tax was exercised only in 1935 and by that date S.80 A had been introduced into the Government of India Act,1915, and that thereafter there could be no legal imposition of a tax without the previous sanction of the Governor General being obtained, (2) that section 51 Of the Central Provinces Local Self Government Act, 1920, on its language and in the context of other provisions referred to in that section, did not authorise .the levy of a tax of the nature of the coal tax, and (3) that, in any case, the tax ceased to be legally leviable after the coming 2 into force of the Government of India Act, 1935, and of the Constitution of India, since a tax like that in question could be in posed only by the Central Government.
Held: (1) that the Central Provinces Local Self Government Act, 1920, having received the assent of the Governor General, its validity cannot be challenged in view of the saving clauses in the proviso to section 80A(3) and section 84(2) of the Government of India Act, 1915.
(2) that the validity of Central Provinces Local Self Government Act, 1920, when enacted, not being open to any objection under the Government of India Act, 1915, any subsequent amendments to the latter Act could not in any manner affect its continued validity and operation.
(3) that on the proper construction Of section 51 of the Act of 1920, the levy of a coal tax is not excluded from the purview of the local authority.
(4) that the continued levy of the tax in question even after the coming into force of the Government of India Act, 1935, and the Constitution of India, is valid in view of section 143 Of the Act of 1935 and article 227 of the Constitution.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 317 of 1988.
From the Judgment and Order dated 23.1.1987 of the Madras High Court in Criminal Appeal No. 408 of 1986 and R.T. 6 of 1986.
U.R. Lalit, V. Krishnamurthy and V. Balachandran for the Appellant.
A.V. Rangam for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
The appellant was convicted by the trial court for double murder of a woman, Jayasambal by name and her son Vijay Anand, and was sentenced to death.
He was further convicted under section 307, I.P.C. for attempting to kill Vijay Anand 's sister Kavitha Priyadarsini and for house trespass in order to commit the aforesaid offences, and was sentenced to life imprisonment under each of the two counts.
His appeal before the Madras High Court was dismissed and the sentence of death confirmed.
The present Special Leave Petition was filed against this judgment.
At the preliminary hearing we were satisfied that the appel 224 lant was rightly convicted as mentioned earlier.
We, however, directed notice to be issued on the question of sentence.
Accordingly, limited special leave is granted.
According to the case of the prosecution, Dr. Manickasamy (P.W.1), the husband of the deceased Jayasambal and father of deceased Vijay Anand, was a doctor working in the Government Hospital at Sadras and the appellant as a Leprosy Inspector under him.
The doctor had taken a second wife whom he was keeping in another house with their 3 children.
The appellant developed close association with the doctor 's family and became intimate with Jayasambal.
The daughter Kavitha Priyadarsini (P.W.2), one day in 1984, found to her shock, her mother Jayasambal and the appellant in a compromising position, and raised a stiff protest with her mother.
Jayasambal attempted to justify her romance on the ground that the doctor P.W.1 was also having two women in his life.
When Kavitha threatened that she would report the matter to her father, she (Jayasambal) relented and agreed to terminate the illicit relationship on which Kavitha promised silence.
Thus forced by her daughter, Jayasambal attempted to avoid the company of the appellant and to repel his advances.
In the meantime the family had changed its residence and the younger sister of Jayasambal joined them and started living with them.
She was examined in the case as P.W.3.
On 20.7.1985 the appellant went to a late night cinema show with his friend P.W.5.
The film contained murder scenes of four women.
When the appellant came out of the cinema hall after midnight he told his friend that he would take revenge for the betrayal by a lady.
He did not give any detail.
P.W.5 stated at the trial that after dropping him at the dispensary, where he lived, the appellant left by a bicycle; and he learnt the next morning about the death of Jayasambal.
According to the further prosecution story the appellant knocked the door of P.W.1 soon thereafter.
The doctor came out of his house and the appellant suddenly rushed into his bed room, locked the door from inside and attacked Jayasambal with a knife.
The boy Vijay Anand aged about 12 years, got up and attempted to intervene and was killed.
His elder sister Kavitha (P.W.2) also became a victim and suffered grievous injury.
The doctor, P.W.1, and Jayasambal 's younger sister (P.W.3) raised shouts which attracted P.W.16, a Police Inspector living in the neighbourhood.
The Police Inspector saw the accused through the window with a knife in his hand and ordered him to stop and to open the door.
The appellant obeyed.
225 6.
Both the trial court and the High Court, on appeal, closely examined the evidence and came to the conclusion that the prosecution story was correct.
A plea of insanity under section 84, I.P.C. taken on behalf of the accused was rejected.
We have examined the evidence and the circumstances and are in agreement with the view of the High Court.
However, the question is whether the courts below were right in imposing death penalty on the appellant or whether the appropriate sentence would be imprisonment for life.
Prima facie the case appears to be a very serious one where two persons were killed and a third one seriously injured.
The death of a 12 year boy trying to save his mother and the serious injury to his elder sister leaves one shocked.
Mr. Lalit, the learned counsel for the appellant contended that although the appellant was not in such a mental state so as to attract section 84, I.P.C., he was certainly so agitated on account of circumstances beyond his control that he should be spared from the extreme penalty of death.
He relied upon the decision in Srirangan vs State of Tamil Nadu, wherein a lenient view was taken in favour of the appellant, a young toddy tapper who while returning after his work "tense in state", was provoked and "went into tantrums and inflicted triple killings.
We have closely examined the circumstances in which the tragic event took place.
The deceased Jayasambal at the time of murder was about 35 years old with a teen aged daughter and a 12 year old son, and the appellant was in his late 20s.
She was united with the doctor through love marriage, but the husband later took another wife and got 3 children from her.
The appellant was employed in the hospital where the doctor P.W.1 was posted.
In this background the unfortunate illicit relationship developed between the deceased and the appellant when the latter was in his mid 20s.
The deceased was an elderly lady with two children who took a defiant attitude, defending her conduct when she was first confronted by her own daughter, which suggests that the unfortunate relationship had developed with her encouragement.
When suddenly spurned by his partner, the appellant must have experienced the disappointment of a discarded lover.
We do not suggest that the erring wife should not have corrected herself nor can the persistence of the appellant in the situation be appreciated, but we are trying to analyse his psychology.
His mental agitation was further fuelled by the movie, showing murder after murder.
The vicious effect of films picturising violence in detail on impressionable minds has been subject of serious concern for some time now, but unfortunately no 226 effective step has been taken so far to curb the growing tendency of a section of the film industry to cash on human weakness.
And when this upsets a youngman, already vulnerably disturbed, the society cannot be completely absolved from sharing the responsibility of the resulting tragedy.
Proceeding further with the facts in the present case, we find that when commanded by P.W. 16, the appellant stopped immediately, as a result of which the life of Kavitha was saved, opened the door, came out of the room and did not attempt to escape.
Considering the above circumstances appearing from the prosecution evidence, we are of the view that the sentence of death passed against the appellant under section 302, Indian Penal Code, should be converted to imprisonment for life.
Let that be done and let all the sentences of imprisonment run concurrently.
N.P.V. Appeal allowed.
[/INST]A person during his lifetime executed trust deeds, dated 21.9.53 and 4.10.1959 respectively.
Under the Deed dated 21.9.1953 that person as settlor, transferred upon trust to himself as trustees four items of immovable property.
The objects and purposes of the trust broadly stated were the conduct of the daily worship of the deity, carrying out of certain charitable acts and making of provisions for the maintenance of the settlor and some other persons.
The trustee was required after defraying taxes etc.
to accumulate 1/4th of the net income to be set apart for purposes of effecting certain additions and alterations to the properties; to make over another 1/4th of the net income to the shebait for the conduct of the daily pooja; another 1/4th for the charities and the remaining 1/4th for the personal benefit of the settlor during his lifetime and to his heirs thereafter.
Later on the share of the settlor was changed to 5/16.
Under the deed dated 4.10.1959 the settlor transferred upon trust to himself and his son, the appellant in Civil Appeal No. 946 of 1975, as trustees six other properties, almost for the same purposes and kept a fixed share for the benefit of the settlor during his lifetime and thereafter to his heirs.
In the proceedings of assessment to Estate Duty the question arose whether the trust deeds attracted and fell within 270 section 12(1) of the Estate Duty Act.
The Deputy Controller of Estate Duty, the Appellate Controller of Estate Duty in the first appeal and the Income tax Appellate Tribunal, Calcutta, in the second appeal held that the entire subject matter of the deeds must be held, or deemed, to pass on death and the value of the properties should be included in the principal value of the Estate passing on death.
At the instance of the accountable person, a reference was made to the High Court for opinion as to whether the properties comprised in both the trust deeds were dutiable under section 12(1) of the Act.
The High Court held that properties comprised in the deed dated 21.9.1953 were settled property within the meaning of section 2(19) and that section 12(1) was attracted.
In relation to the properties covered by the deed dated 4.10.1959, the High Court held that Section 12(1) was not applicable to them as they were not settled properties.
Feeling aggrieved, both the accountable person and the Deputy Controller of Estate Duty filed these cross appeals.
Dismissing the appeal of the accountable person, allowing that of the Revenue, and answering the question referred to by the High Court for opinion in the affirmative and against the assesee, this Court, ^ HELD: The first contention of the accountable persons that the interest in the property corresponding to the benefit retained by the settlor was not a subject matter of the disposition at all is essentially a matter of construction of the deeds.
There is, no doubt, a discernible difference between a case of settlement of property with reservation of a benefit to the settlor on the one hand and the case where what is settled is only a share or interest or part of the property, excluding the part or the share corresponding to the benefit that the settlor has chosen to retain.
There is, indeed, no transfer at all in the latter case.
The accountable person contends that there is really no transfer of the share corresponding to the benefit reserved in both the cases.
[278F G] In the present case, any possibilities of such an argument are ruled out by the explicit terms of the deeds.
The subject matter of the deeds are not 11/16 share and 1/2 share in the properties respectively.
The whole of the properties are conveyed upon trust.
There is, therefore, no scope for this submission.
[280C D] St. Aubyn vs Attorney General, [1951] 2 All England Reports 496; Controller of Estate Duty, A.P. Hyderabad vs Smt.
Godavari Bai; , at 635 and Controller of Estate Duty, Kerala vs M/s. R.V. Vishwanathan and Ors., ; at 97 and 99, referred to.
271 The second contention of the accountable person that provisions of section 12(1) are not attracted as the properties did not fill the bill as "Settled Properties" within the meaning of Section 2(19) has no substance.
Section 12(1) refers to and deals with a case of property passing under a "settlement" in which the settlor had reserved to himself an interest in such property either expressly or by implication.
Apparently, on its language, the section does not draw upon the incidents and implications of "Settled Property" for the satisfaction of its requirements.
The passing of property under a "settlement" which means "any disposition including a dedication or endowment whereby property is settled" coupled with a reservation of an interest in the property would suffice.
The further incident that the properties covered by the settlement must in addition partake of the character of "Settled property" and accordingly, should stand "limited in trust for any person, natural or juridical, by way of succession" etc.
are not to be held as part of the requirements of section 12(1).
Those incidents of "Settled Property" need not be imported to the ingredients of section 12(1) which would be satisfied if there is a "Settlement" as defined under the second part of section 2(19) and if, there is reservation of an interest by the settlor in addition.
[280D; 281C E] In the instant case, the two deeds clearly answer the description of "Settlement" as defined under Section 2(19) viz. that there is a "disposition including a dedication, whereby property is settled".
Indeed under both the deads, the reservations of the benefit of the income from the trust properties were made in favour of the settlor.
These reservations by themselves, in our opinion, bring the properties within the net of section 12(1).
In addition, the settlor in this case constituted himself during his life time and thereafter constituted his heirs as the shebaits of the two deities.
Indeed where while endowing properties to a deity, the settlor stipulates that he shall during his left time and thereafter his heirs be the shebaits of the deity, the settlor can possibly be said to provide not only for certain duties to be vested in connection with the endowment but also secures a beneficial interest in the property.
[281F H; 282A] Angurbala Mullick vs Debabrata Mullick, at 1132 and Kalipada Chakraborti & Anr.
vs Palani Bala Devi The reservation "interest", so as to attract Section 12(1), must be in the property as such and that mere collateral benefits reserved by the settlor emanating from some other property or some other source, inde 272 pendent of the property so settled, will not attract the section.
The distinction between a case of a benefit arising "collaterally" and a case of the benefit being reserved by "implication" would require to be kept clearly distinguished.
[282H; 283A, C] Controller of Estate Duty vs R. Kanakasabai & Ors., at 257, referred to.
The terms of the two documents satisfy even the extended requirement that for purposes of section 12(1) the settled property must be by way of succession.
[284E] Attorney General vs Owen, [1899] 2 Queen 's Bench Division 253 at 266 and Hamid Hussain vs Controller of Estate Duty, at 315, referred to.
There is no substance in the 3rd contention also of the accountable person that all the properties covered by the two settlements cannot be held to pass under section 12(1) but only the value of the share of the properties corresponding to the benefit reserved must be held to pass.
There are certain fallacies in some of the assumptions basic to this contention.
The quantum of the interest reserved does not determine the extent of the property passing under Section 12(1).
This is not a case where several distinct properties or parcels are settled and a beneficial interest is reserved out of one alone when it might be possible to predicate that all properties comprised in such settlement, which must be held to be a composite deed dealing with several items do not attract section 12(1) but only the parcel out of which an interest is carved out and reserved for the settlor 's benefit.
Under Section 12(1) if the deceased makes a settlement and reserves for himself an interest therein for life or for any period determinable with reference to death, the whole of the property so settled would be deemed to pass.
The interest reserved might be very small indeed; but however small the interest, when by virtue of such a reservation a settlement falls within the purview of section 12, the whole property would be deemed to pass.
[284F H; 285A B] Attorney General vs Earl.
Grey, at 325, referred to.
The expression 'interst ' in section 12(1) is also not used in a restrictive sense.
[285D] Attorney General vs Heywood, and Attorney 273 General vs Farrel, , referred to.
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<s>[INST] Summarize the judgementN: Criminal appeal No. 383 of 1991.
From the Judgment and Order dated 17.7.1990 of the Orissa High Court in Crl.
Rev. No. 382 of 1986.
Janaranjan Das for the Appellants.
A.K. Panda for the Respondent.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Arguments heard.
This appeal by special leave is directed against the judgment and order dated July 17, 1990 passed by the High Court of Orissa in Criminal Revision No. 382 of 1986 dismissing the revision and affirming the concurrent findings of the courts below.
The prosecution case in short is that on 19th March, 1983 at about 7.p.m.
while the victim girl Srimanthini Samal (P.W. 2) was going to the house of Rama Samal, for study, the appellant Gagan informed her that the other appellant Prafulla and others had tied her tutor Rabi Babu in a nearby mango grove and her father was present there.
Having believed the version of the appellant Gagan, her agnatic uncle, she accompanied him and ultimately the appellants forcibly took her to a lonely house in hills where she was made to sit on a chair and the appellant Gagan forcibly thrushed in her mouth a liquor bottle and she was made to drink the liquor.
Thereafter both the appellants after having undressed her committed sexual assault on her.
Then she was brought to expression highway from where she was bodily lifted to a truck standing there and left her in the truck.
While the said truck was unloading materials near village Kurujanga, the victim girl stealthily left the truck and concealed her presence near a fence.
Subsequently, one Purusottam Mohanty rescued her and brought her to his house and then she was left to the house of one Niranjan Rout (P.W. 8), who was distantly related to her and took shelter till her father took her back on being 842 informed.
On the information lodged by her father (P.W. 1) in the police station of Badachana a case under sections 363 and 376 read with section 34 of the I.P.C. was registered against the accused appellants and after investigation the I.O. sent the victim girl as well as the appellants for medical examination and after completion of the investigation a charge sheet was submitted against the appellants to stand their trial.
The pleas of the appellants were a total denial of the prosecution case.
The appellant Prafulla took the plea the there was a marriage proposal of the victim girl with him but when it was disclosed that she had illicit relationship with her tutor Rabi, he refused to marry her for which this false case was foisted against him.
The plea of the other appellant Gagan as suggested to the informant, was that due to his previous enmity he was falsely implicated with the alleged crime.
The appellants were committed to the Court of Sessions.
The learned Assistant Sessions Judge after considering the evidences on record rejected the defence pleas, and found that the accused appellants committed rape on the victim girl without her consent relying on the provisions of Section 114(A) of the Evidence Act, and convicted them under section 376(2)(g) I.P.C. and sentenced each of the accused appellants to rigorous imprisonment for three years considering the young age of the appellants.
The Assistant Sessions Judge, however, acquitted the appellants from the charge under section 366 I.P.C. as the victim girl was more than 16 years of age at the time of occurrence.
Against this judgment and order of conviction the appellants filed an appeal being Criminal Appeal No. 153 of 1984 in the Court of First Additional Sessions Judge, Cuttack.
The Additional Sessions Judge considered the pleas of the appellants as well as duly scrutinized and appraised the evidences on record and found that the accused appellants committed rape on the victim girl without her consent and affirmed the conviction and sentence imposed by the Trial Court dismissing the appeal.
The appellants thereafter filed a Revision Case being Criminal Revision No. 382 of 1986 in the High Court of Orissa at Cuttack against the said judgment and order passed by the First Additional Sessions Judge, Cuttack.
The High Court duly considered and appraised the evidences of all the 9 P. Ws. including the deposition of the victim girl Srimanthni Samal (P.W. 2), the evidence of her father (P.W. 1) as well as the evidence of her mother (P.W. 3) and the evidences of the two Doctors (P.W. 4) and P.W. (5) and held that the accused persons committed rap on P.W. 2 forcibly without her con 843 sent.
It has been further found from the reliable evidences of P.Ws. 1 and 3 that as soon as P.W. 2 met her mother, P.W. 3, P.W. 2 told her mother about both the accused persons committing rape on her in a solitary house and also about the accused persons taking her away to the highway and keeping her in a truck, and corroborate the version of P.W. 2 regarding the occurrence of rape committed n her by both the accused persons.
It has been further observed that even though the P.Ws. 7 and 8 became hostile still then their evidences can be safely relied on as the same fully corroborates the version of P.W. 2 that on the relevant night the she, with the help of P.W. 7 had taken shelter in the house of P.W. 8 P.W. 6 who the driver of the truck No. ORG 4839 also stated in his evidence that the accused persons and two others took the victim girl and left her in the truck.
P.W. 6 further admitted that as he stopped the truck at village Ambura for unloading the boulders, the girl had stealthily left his truck and inspite of his searching her, he could not trace her.
This fully supports the version of P.W. 2 that she left the truck and concealed herself near a fence in darkness.
The learned Judge, therefore, held "Hence, on a careful scrutiny of the evidences of the hostile witnesses P.Ws. 6 and 8 it is seen that even they corroborate the evidence of the victim gild, P.W. 2 on material aspects of the prosecution case.
" In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape.
It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, ; as follows: "Corroboration is not the sine qua non for a conviction in a rape case.
In the Indian setting, refusal to act on the testimony of a victim of sexual assault inthe absence of corroboration as a rule, is adding insult to injury.
Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.
A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that only incident which is likely to reflect on her chastity had ever occurred.
She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, 844 relatives, friends, and neighbours.
She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to book.
And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated.
" The above observation has been made by this Court relying on the earlier observations made by this Court in Rameshwar vs The State of Rajasthan, with regard to corroboration of girl 's testimony and version.
Vivian Bose, J, who spoke for the Court observed as follows: "The rule, which according to the case has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, . . . .The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in very case, be corroboration before a conviction can be allowed to stand.
" In the instant appeal as had been stated hereinbefore that P.W. 2, the victim girl has clearly stated in her evidence that she had been taken to a solitary house in the hills by the appellant No. 1 Gagan Bihari Samal and there she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other.
He uncontroverted testimony has been accepted by all the courts and the courts concurrently found that she was raped without her consent.
It has been tried to be contended on behalf of the appellants that the amended section 114(A) was brought into the Evidence Act after the commission of the offence for which the appellants were charged and as such no assumption can be made on the basis of this provision.
This submission is of no avail in as much as it is clearly evident that the victim girl protested and 845 struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on part of the victim girl in such sexual intercourse apart from the legal presumption that follows from the provisions of Section 114(A) of the Evidence Act.
The learned counsel on behalf of the appellants further tried to argue on the basis of some minor discrepancies in the evidences of P.W. 2 that the prosecution case was a false one and it has been foisted on the appellants due to enmity and also due to accused Prafulla, one of the appellants, having disagreed to marry the victim girl.
The courts below have clearly found that the defence case was not at all sub stantiated by any cogent evidence.
So this contention is not at all tenable.
It is apropos to mention here the observation made by this Court in the case of State of Orissa vs Nakula Sahu and Ors., ; which are set out herein: "Although the revisional power of the High Court under Section 439 read with section 435 is as wide as the power of Court of appeal under Sec.
423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice.
Inspite of the wide language of Section 435, the High Court is not excepted to act under Section 435 or Section 439 as if it is hearing an appeal.
" The High Court of Orissa referred to the said observation and rightly held that the High Court cannot be expected to re appraise the evidence as a court of appeal.
This Court hearing an appeal by special leave cannot consider and re appraise the evidences once again in the face of concurrent findings of facts arrived at by all the courts below.
For the reasons aforesaid we dismiss the appeal and uphold the conviction and sentence as found by the High Court.
R.P. Appeal dismissed.
[/INST]The appellants forcibly took P.W. 2 to a lonely place on 19.3.1983, made her to drink liquor and committed sexual assault on her.
Thereafter they left her in a truck.
While the said truck was unloading materials near a village, the victim stealthily left the truck and concealed herself near a fence.
P.W. 7 rescued her and took her to the house of P.W. 8, one of her distant relative, from where her father P.W. 1 took her back and lodged the report at the police station.
A case under sections 363 and 376 read with section 341.I.P.C. was registered against both the appellants.
After completion of the investigation, a charge sheet was submitted and the appellants were tried for the aforesaid offences.
The appellants denied the prosecution allegations and pleaded that they were falsely implicated because of refusal by one of them to marry the girl and previous enmity with the other.
The Assistant Sessions Judge rejected the defence pleas, and found that the appellants committed rape on the victim without her consent, and relying on section 114A of the Evidence Act, convicted the appellants under section 376(2)(g), I.P.C. and sentenced each of them to rigorous imprisonment for three 840 years.
Since the victim was more than 16 years of age, the appellants were acquitted of the charge under section 363, I.P.C. On dismissal of their appeal against the conviction and sentence by the Addl.
Session Judge, the appellants filed a revision application before the High Court.
The High Court duly considered and appraised the evidence and held that the appellants committed rape on PW 2 forcibly without her consent.
Ultimately the appellants came in appeal by special leave to this Court.
Dismissing the appeal, this Court, HELD: 1.
In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape.
However, corroboration is not the sine que non for a conviction in a rape case.
In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
[843D F] Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, ; and Rameshwar vs The State of Rajasthan, ; , relied on.
In the instant case, the victim girl clearly stated in her evidence that she had been taken to a solitary house in the hills by appellant No. 1 where she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other.
Her uncontroverted testimony was accepted by all the courts and they concurrently found that she had been raped without her consent.
[844F G] 3.
Apart from the legal presumption that flows from the provisions of section 114A of the Evidence Act, it is clearly evident in the instant case, that the victim girl protested and struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on her part in such sexual intercourse.
[844H; 845A] 4.
The High Court rightly held that it cannot be expected to re appraise the evidence as a court of appeal while exercising its revisional power under section 401 Cr.
P.C. [845E F] 841 State of Orissa vs Nakula Sahu and Ors., ; , relied on.
This Court hearing an appeal by special leave cannot consider and re appraise the evidence once again in the face of concurrent findings of facts arrived at by all the courts below.
[845F]
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<s>[INST] Summarize the judgementAppeal No. 304 of 1958.
Appeal from the judgment and order dated September 7, 1956, of the Bombay High Court in Income tax Reference No. 19 of 1956.
C. K. Daphtary,Solicitor General of India,K. N. Rajagopal Sastri and D. Gupta, for the appellant.
N. A. Palkhivala and section N. Andley, for the respondent.
April 28.
The Judgment of the Court was delivered by S.K. DAS, J.
This is an appeal on a certificate of fitness granted by the High Court of Bombay, and the short question for decision is the true scope and effect of the third proviso to section 5 of the Business Profits Tax Act, 1947 (Act No. XXI of 1947), hereinafter referred to as the Act.
The appellant is the Commissioner of Income tax, Ahmedabad, and the respondent is a private limited company under the name and style of Karamchand Premchand Ltd., Ahmedabad, to be called hereafter as the assesses.
729 The relevant facts are these : the assessee held the managing agency of the Ahmedabad Manufacturing and Calico Printing Co. Ltd. It also had a pharmaceutical business in the Baroda State, which was at the relevant time an Indian State run in the name and style of Sarabhai Chemicals.
The assessee 's business in India (we shall use the expression India in this judgment to mean British India as it was then called in contra distinction to an Indian State) showed business profits assessable under the provisions of the Act; but the business carried on in the name and style of Sarabhai Chemicals in Baroda showed a loss in the relevant chargeable accounting periods which were four in number, namely: (1) April 1, 1946, to December 31, 1946; (2) January 1, 1947, to December 31, 1947; (3) January 1, 1948, to December 31, 1948 ; and (4) January 1, 1949, to March 31, 1949.
The assessee claimed that its assessable income in India should be reduced by the loss suffered by it in its business in Baroda.
The Income tax Officer rejected the claim of the assessee and held that the Act did not apply to the business carried on in an Indian State unless profits and gains of that business were received or deemed to have been received in or brought into India.
On appeal the Appellate Assistant Commissioner upheld the contention of the assessee and allowed the appeal.
The Department went up in appeal to the Appellate Tribunal, which held that under the relevant proviso to section 5 of the Act, profits and losses of a business in an Indian State were not to be taken into consideration unless they were received or deemed to have been received in or brought into India.
In that view of the matter the Tribunal set aside the order of the Appellate Assistant Commissioner and restored that of the Income tax Officer.
The assessee then moved four applications in respect of the four relevant chargeable accounting periods, and by these applications the assessee required the Tribunal to state a case to the High Court of Bombay on the question of law which arose out of its order.
These four applications were consolidated.
The Tribunal on being satisfied that a question of law arose out of its order in the four cases numbered as 85, 86, 87 730 and 88 of 1953 54, referred that question to the Bombay High Court in the following terms: " Whether on the facts and in the circumstances of the case the loss suffered by the assessee in the business of Sarabhai Chemicals should be deducted in computing the business income of the assessee company liable to business profits tax ?" The High Court answered the question in the affirmative and came to the conclusion that the assessee was entitled to deduct the losses incurred by it in its Baroda business and set them off against the profits made in the taxable territories.
The appellant then moved the High Court and obtained a certificate of fitness.
On that certificate the present appeal has come to us.
The main contention on behalf of the appellant is that the High Court came to an erroneous conclusion with regard to the true scope and effect of the third proviso to section 5 of the Act.
It is necessary here to refer to some of the provisions of the Act to understand its general scheme.
In 1940 the Central Legislature passed the Excess Profits Tax Act, 1940 (Act No. XV of 1940), to impose a tax on excess profits arising out of certain businesses.
We shall have occasion to refer to some of the provisions of that Act, in due course.
For the purposes of that Act, the expression " chargeable accounting period " meant (a) any accounting period falling wholly within the term beginning on September 1, 1939, and ending on March 31, 1946, and (b) where any accounting period fell partly within and partly without the said term, such part of that accounting period as fell within the said term.
It may be here stated that originally the term was from September 1, 1939, to March 31, 1941, but by several annual Finance Acts the term was extended up to March 31, 1946.
In 1947 came the Act in which " chargeable accounting period" means: (a) any accounting period falling wholly within the term beginning on April 1, 1946, and ending on March 31, 1949, and (b) where any accounting period falls partly within and partly without the said term, such part 731 of that accounting period as falls within the said term.
The Act extended to the whole of India.
The word business" is defined in section 2(3) of the Act as including any trade, commerce or manufacture, etc., the profits of which are chargeable according to the provisions of section 10 of the Indian Income tax Act, 1922.
There are two provisoes to this definition clause, and the second.
proviso states that all businesses to which the Act applies carried on by the same person shall be treated as one business for the purposes of the Act.
The expression " taxable profits" is defined under section 2(17) of the Act and it means the amount by which the profits during a chargeable accounting period exceed the abatement in respect of that period.
What is meant by " abatement" is defined in section 2(1) of the Act.
The charging section is section 4 and we may read that section here, so far as it is relevant for our purpose, in order to understand the general scheme, of the tax imposed under the Act.
" section 4.
Charge of tax Subject to the provisions of this Act, there ;hall in respect of any business to which this Act applies, be charged, levied and paid on the amount of taxable profits during any chargeable accounting period, a tax (in this Act referred to as " business profits tax") which shall, in respect of any chargeable accounting period ending on or before the 31st day of March, 1947, be equal to sixteen and two third per cent, of the taxable profits, and in respect of any chargeable accounting period beginning after that date be equal to such percentage of the taxable profits as may be fixed by the annual Finance Act.
" Shortly stated, the scheme is that in respect of any business to which the Act applies, there shall be charged, levied and paid a tax called "business profits tax" on the amount of the taxable profits, which means the amount exceeding the abatement, during any chargeable accounting period; the tax shall be equal to sixteen and two third per cent.
of the taxable profits in respect of the chargeable accounting period ending on or before March 31, 1947, and in respect of any charge.
able accounting period after that date, the tax shall 732 be equal to such percentage of the taxable profits as may be fixed by the annual Finance Act.
Then comes section 5 which is the section dealing with the application of the Act and it is in these terms: section 5.
Application of Act This Act shall apply to every business of which any part of the profits made during the chargeable accounting period is chargeable to income tax by virtue of the provisions of sub clause (i) or sub clause (ii) of clause (b) of subsection (1) of section 4 of the Indian Income tax Act, 1922, or of clause (c) of that sub section: Provided that this Act shall Dot apply to any business the whole of the profits of which accrue or arise without the taxable territories where such business is carried on by or on behalf of a person who is resident but not ordinarily resident in the taxable territories unless the business is controlled in India: Provided further that where the profits of a part only of a business carried on by a person who is not resident in the taxable territories or not ordinarily so resident accrue or arise in the taxable territories or are deemed under the Indian Income tax Act, 1922, so to accrue or arise, then except where the business being the business of a person who is resident but not ordinarily resident, in the taxable territories is controlled in India, this Act shall apply only to such part of the business and such part shall for all the purposes of this Act be deemed to be a separate business : Provided further that this Act shall not apply to any income, profits or gains of business accruing or arising within any part of India to which this Act does not extend unless such income, profits or gains are received in or are brought into the taxable territories in any chargeable accounting period, or are assessable under section 42 of that Act.
" We have read the section as it stands to day.
The expression " taxable territories " in the provisoes was substituted for " British India " by the Adaptation of Laws Order, 1950, and the third proviso originally referred to any income, profits or gains of business accruing or %rising within "an Indian State"; then 733 the expression " a Part B State " was substituted, but this was again changed by the Adaptation of Laws (No. 3) Order, 1956, and the present expression " any part of India to which this Act does not extend " was introduced.
For the purposes of this appeal nothing turns upon these changes, and we may read the third proviso as referring to any income, profits or gains of a business accruing or arising in an Indian State.
Section 6 deals with relief on occurrence of " deficiency of profits " an expression which is defined in section 2(7) of the Act.
The rest of the Act deals with matters, such as issue of notice for assessment, assessments, profits escaping assessment, penalties, appeal, etc., with which we are not directly concerned in this appeal.
Now, sections 4 and 5 of the Act make it quite clear that the unit of taxation is the business, that is, any busi.
ness to which the Act applies; and if a person carries on more than one business to all of which the Act applies, all the businesses carried on by the same person shall be treated as one business for the purposes of the Act.
Section 5, in its substantive part, states to which business the Act applies and says that the Act applies to every business of which any part of the profits made during the chargeable accounting period is chargeable to income tax by virtue of the provisions of sub cl.
(i) or sub cl.
(ii) of cl.
(b) of sub section (1) of section 4 of the Indian Income tax Act, 1922, or el.
(c) of that sub section.
A reference to the aforesaid provisions of the Indian Income tax Act, 1922, shows at once that in so far as they concern the present assessee section 5 in its substantive part makes the Act applicable to his business whether the profits of the business accrued or arose in India or Baroda ; and this is so in spite of the fact that the Act extended only to India.
Indeed, learned counsel for the appellant has conceded that bad section 5 stood by itself without any of the provisoes, the Baroda business of the assessee would have come within the wide ambit of section 5 and the Act would be applicable to that business.
His contention, however, is that the third proviso has the effect of excluding the Baroda business from the pur.
view of the Act, except in so far as the income, profits or gains of that business are received or deemed to 95 734 be received in or brought into India.
On behalf of the assessee the argument is that in its true scope and effect the third proviso has merely the effect of exempting the income, profits or gains of the Baroda business except when they are received or brought into India, but the business itself is not excluded from the purview of the Act; the business is still one to which the Act applies under the substantive part of section 5 and as the third proviso exempts income, profits or gains only, the losses of the Baroda business can be set off against the profits of the business in India.
These are the two main rival contentions which we have to consider in this appeal.
Now, let us examine a little more closely sections 4 and 5 of the Act.
We have stated earlier that section 4 is the charging section, which levies a tax on the amount of taxable profits during any chargeable accounting period, in respect of any business to which the Act applies.
The corresponding section in the Excess Profits Tax Act, 1940, was also section 4 thereof, which levied a tax on the amount by which the profits during any chargeable accounting period exceeded the standard profits inrespect of any business to which that Act applied.
Under the Excess Profits Tax Act, 1940, as also under the Act under our consideration, the unit is the business business to which the Act applies.
For the application of the Act we have to go to section 5.
We have pointed out that section 5 in its substantive part makes the Act applicable to every business of which any part of the profits is chargeable to income tax by virtue of the provisions of sub cl.
(1) or sub cl.
(ii) of el.
(b) of sub section
(1) of section 4 of the Indian Income tax Act, 1922, and, thus makes the Act applicable to the Baroda business of the assessee.
The question then is does the third proviso to section 5 exclude that business except in so far as the income, profits or gains of that business are received or deemed to be received in or are brought into the taxable territories in any chargeable accounting period ? If that is the true scope and effect of the third proviso, then the appellant is entitled to succeed.
If, on the contrary, the third proviso merely makes the Act inapplicable to income, profits or gains of the Baroda business unless such income, profits or gains are 3 received or deemed to be received in or are brought into the taxable territories, but does not exclude the business from the purview of sections 4 and 5, then the answer given by the High Court is correct.
The High Court has stated that whichever view is taken the third proviso leads to certain difficulties, and in a case where much can be said on both sides, the benefit of any ambiguity of language must be given to the assessee.
We agree with the High Court that the question is not quite free from difficulty; but on the language of the proviso as it stands, the answer given by the High Court appears to us to be the correct answer.
It is not the case of the appellant that the first and the second provisoes to section 5 apply to the facts of this case.
But it is significant to note the phraseology of these two provisoes and contrast them with the third proviso.
The first proviso says: " Provided that the Act shall not apply to any business the whole of the profits of which accrue or arise without the taxable territories, etc.
" The language is clear enough to exclude the business referred to therein from the purview of the Act.
Similarly, the second proviso excludes under certain circumstances part of a business and uses appropriate language to give effect to that exclusion.
By a legal fiction as it were, it divides a business into two parts, one separate from the other, and makes the Act applicable to one of them only.
Unlike the other two provisoes, the third proviso does not use the language of exclusion in respect of any business.
What it takes out of the ambit of the Act is merely the " income, profits and gains " of a particular business.
The language is thus more apt to effectuate an exemption from tax of ,income, profits or gains" rather than an exclusion of the business from the purview of the Act.
On behalf of the appellant it is contended that such a construction results in this anomaly that if the income, profits or gains are not brought into India, they escape tax and yet the losses of a business which is outside India are taken into consideration in computing the profits, etc., in India.
This, it is argued, could not have been the object of the legislature in 736 enacting the third proviso to section 5 of the Act.
It is contended that the object was to exclude the business in an Indian State as also the income, profits or gains thereof, unless such profits, etc., were received in or brought into India.
This argument is not devoid of plausibility and requires careful consideration.
We may here refer to the relevant provisions of the Excess Profits Tax Act, 1940.
Section 5 of that Act in its substantive part and the first and second provisoes thereto were worded in identical language, but the third proviso to section 5 of the Excess Profits Tax Act, 1940, was worded quite differently from the third proviso to section 5 of the Act.
The third proviso to section 5 of the Excess Profits Tax Act, 1940, stated: " Provided further that this Act shall not apply to any business the whole of the profits of which accrue or arise in a Part B State, and where the profits of a part of a business accrue or arise in a Part B State, such part shall, for the purposes of this provision, be deemed to be a separate business the whole of the profits of which accrue or arise in a Part B State, and the other part of the business shall, for all the purposes of this Act, be deemed to be a separate business." The language used was clearly one of exclusion, and it said that the Excess Profits Tax Act was not applicable to a business the profits of which accrued or arose in a Part B State.
Why then did the legislature use different language in the third proviso to section 5 of the Act? On behalf of the appellant it has been submitted that the change in language is deliberate and the reason for the change is to make the income, profits or gains of a business accruing in an Indian or Part B State liable to tax when such income, profits or gains are brought in India while under the third proviso to a. 5 of the Excess Profits Tax Act, they were not liable to tax even when they were brought into India.
On behalf of the assessee, however, it has been submitted that the change in language is due to a different reason altogether.
The third proviso to section 5 of the Excess Profits Tax Act, 1940, and section 14(2) (c) (now deleted) of the Indian Income tax Act, 1922, were enacted at about the same time, and the broad object of both the 737 provisions was to exclude profits of a business in an Indian or Part B State from charge of tax; but under the Excess Profits Tax Act, 1940, such profits were not chargeable even if received in or brought into India whereas under section 14(2) (c) of the Indian Income tax Act such profits became chargeable to tax if received in or brought into India.
This difference, learned counsel for the assessee states, was no doubt done away with by the change in language of the third proviso to section 5 of the Act; but the change in language did something more, because it assimilated the position under the proviso to that under section 14(2) (c) of the Indian Income tax Act, namely, that though profits of a business in an Indian State cannot be taxed unless they are brought into the taxable territories, yet the losses incurred can be adjusted in computing the profits of the business as a whole.
Learned counsel for the assessee has relied on the decision of this Court in Commissioner of Income tax, Mysore, Travancore Cochin and Coorg vs Indo Mercantile Bank Ltd. (1) and the decisions of the Bombay High Court in Commissioner of Income tax, Bombay City vs Murlidhar Mathurawalla Mahajan Association (2 ) and Commissioner of Excess Profits Tax, Bombay City vs Bhogilal H. Patel, Bombay (3 ).
The first two decisions cited above considered the effect of section 24 (1), Indian Income tax Act, 1922, with special reference to the first proviso thereto (as it stood at the time relevant therein) and its impact on section 10 of the said Act.
It was held that sub section
(1) of section 24 dealt only with set off of loss under one head against profits under any other head, and therefore the old first proviso to sub section (1) of section 24 applied and barred the right of set off only where a loss in the Indian State was sought to be set off against Indian profits under any other head; where, however, the assessee sought to set off his loss in the Indian State against his Indian profits under the same head, e. g., set off of loss incurred in a business carried on in an Indian State against the profits of the same or another business carried on in India, the proviso did not apply and the assessee was entitled to such set off under section 10 (1) [1959] Supp. 2 S.C.R. 256.
(2) (3) 738 of the Indian Income tax Act.
Learned counsel for the assessee has submitted that the same principle applies with regard to the third proviso to section 5 of the Act.
Learned counsel has submitted that as under section 10 of the Indian Income tax Act, different businesses constitute one head and in order to determine what are the profits and gains of a business under section 10 an assessee is entitled to show all his profits and set off against those profits losses incurred by him, in the same head; so also under section 5 of the Act, the Baroda business of the assessee is within the ambit of the Act, though the income, profits or gains thereof are excluded by the third proviso unless they are received or brought into India.
He has pointed out that the position under the Excess Profits Tax Act was different, as was explained in Bhogilal Patel 's case (1) where the learned Chief Justice said: " This contention of Mr. Kolah is based on the language used in the proviso, namely, that 'this Act shall not apply to any business the whole of the profits of which accrue or arise in an Indian State '.
Now, this contention is obviously fallacious, because the proviso does not say that the Act shall not apply to the profits of a business which accrue or arise in an Indian State.
What the proviso says is that the Act shall not apply to any business the whole of the profits of which accrue or arise in an Indian State.
The expression "the whole of the profits of which accrue or arise in an Indian State ' is an expression which indicates the nature of the business which is excluded from the purview or ambit of the Act".
Now, the third proviso to section 5 of the Act uses not the phraseology of the Excess Profits Tax Act, but the very phraseology which according to the learned Chief Justice would have made all the difference.
Learned counsel for the assessee has argued, and we think it has considerable force, that the legislature had before it the language used in section 14 (2) (e) of the Indian Income tax Act and it knew the effect of those provisions and it used the same language in the third proviso to section 5 of the Act.
If the object of the legislature was to exclude the business itself from the ambit (1) 739 of the Act while taxing the profits which were brought into the taxable territories, then it used language which failed to achieve that object.
On behalf of the appellant it has been pointed out that the expression used in the third proviso to section 5 is "Provided further that the Act shall not apply to any income, profits or gains of a business, etc.
" It is argued that this language, (namely, that the Act shall not apply) is apt to exclude from the purview of the Act business the profits of which accrue or arise in an Indian State, except in so far as such profits are brought into the taxable territories.
In support of this argument a reference has been made to section 4 (3) of the Indian Income tax Act as it stood prior to 1939 and reliance is placed on the decisions in Commissioner of Income tax, Madras vs M. P. T.K. M. M. section M. A. B. Somasundaram Chettiar (1) and" Commissioner of Income tax, Bombay vs The Provident Investment Co. Ltd.(2).
It is true that section 4(3) of the Indian Income tax Act, as it stood prior to 1939, said that this Act (meaning the Indian Income tax Act, 1922) shall not apply to certain classes of income ", and in the two decisions cited it was held that the word " business " meant a business whose profits were being assessed in the year under consideration and there was no justification for deduction of the expenses of a foreign business.
We do not, however, think that the use of the expression, " the Act shall not apply ", is decisive in this case.
We have to read the third proviso as a whole and in the context in which it occurs, in order to find out what it means.
So read it is difficult to hold that it has the effect of excluding the Baroda business except in so far as the profits thereof are brought into the taxable territories.
What it says in express terms is that the Act shall not apply to any income, profits or gains of business accruing or arising in an Indian State, etc.
It does not say that the business itself is excluded from the purview of the Act.
We have to read and construe the third proviso in the context of the substantive part of section 5 which takes in the Baroda business and the phraseology of the first and second provisoes thereto, which clearly uses the (1) A. I. R. (2) (1931) 1 L. R. 740 language of excluding the business referred to therein.
The third proviso does not use that language and what learned counsel for the appellant is seeking to do is to alter the language of the proviso so as to make it read as though it excluded business the income ' profits or gains of which accrue or arise in an Indian State.
The difficulty is that the third proviso does not say so ; on the contrary, it uses language which merely exempts from tax the income, profits or gains unless such income, profits or gains are received in or brought into India.
Next, we have to consider what the expression income, profits or gains " means.
In the context of the third proviso, it cannot include losses because the latter part of the proviso says " unless such income, profits or gains are received, etc., into the taxable territories ".
Obviously, losses cannot be brought into the taxable territories except in an accounting sense, and the expression " income, profits or gains " in the context cannot include losses.
The expression must have the same meaning throughout the proviso, and cannot have one meaning in the first part and a different meaning in the latter part of the proviso.
The appellant cannot therefore say that the third proviso excludes the business altogether, because it takes away from the ambit of the Act not only income, profits or gains but also losses of the business referred to therein.
On behalf of the appellant it has been argued that though the language of the third proviso to section 5 of the Act is similar to that of section 14(2)(c) of the Indian Income tax Act, the language of the two provisions is not identical and it is not correct to say that their effect is substantially the same.
It is pointed out that the language of section 14(2)(c) was one of exemption only in respect of any income, profits or gains accruing or arising in an Indian State, though for purposes of " total income " the Income tax Act applied thereto, and therefore the normal process of aggregating profits and losses wherever they occurred could be adopted.
But says learned counsel for the appellant, the position is otherwise under the third proviso to section 5 of the Act, because, firstly, it uses the expression, " the Act 741 shall not apply " and secondly, there is no question of exempting the profits from tax while including them for the purposes of " total income ".
We agree that the complication of excluding the profits from tax while including them for determining " total income " does not arise under the third proviso to section 5 of the Act; but the argument presented is the same as we have dealt with earlier.
The argument merely takes us back to the question does the third proviso to B. 5 of the Act merely exempt the income, profits or gains or does it exclude the business? If it excludes the business, the appellant is right in saying that the position under the proviso is not the same as under section 14(2)(c) of the Indian Income tax Act.
If, on the contrary, the proviso merely exempts the income, profits or gains of the business to which the Act otherwise applies, then the position is the same as under section 14(2)(c).
It is perhaps repetition, but we may emphasize again that exclusion, if any, must be done with reference to business, which is the unit of taxation.
The first and second provisoes to section 5 do that, but the third proviso does not.
Lastly it has been contended that the construction adopted by the High Court is likely to lead to consequences which the legislature manifestly could not have intended.
This contention has been pressed in respect of two matters: (a) computation of capital under the rules in Schedule 11 of the Act in a case where the assessee company sustains a loss in an Indian State; and (b) relief for deficiency of profits where the assessee makes profits in an Indian State but sustains a loss in India.
As to the first matter, it has been fully dealt with by the High Court with reference to r. 2A of the Rules in Schedule 11 and it has been rightly pointed out that no difficulty really arise,% by reason of r. 2A.
Nor are we satisfied that any real difficulty arises with regard to relief for deficiency of profits when the assessee makes profits in an Indian State but sustains a loss in India.
The Act will not apply to such profits unless they are brought into India, and if they are brought into India.
, a. 6 will apply with regard to relief on the ground of deficiency of profits.
96 742 It is unnecessary to consider here any hypothetical difficulty which may arise in the application of section 6.
The appellant relies on the third proviso to section 5 of the Act in support of the contention that it excludes the Baroda business of the assessee and the losses of that business cannot be set off against the profits of the business in India, and the appellant can succeed only on establishing that the proviso clearly and without any ambiguity excludes the Baroda business.
We agree with the High Court that if there is any ambiguity of language, the benefit of that ambiguity must be given to the assessee.
However, the conclusion at which we have arrived is that on the language of the proviso as it stands, it does not exclude the Baroda business of the assessee but exempts only.
the income, profits or gains thereof unless they are received or deemed to be received in or brought into India.
Accordingly, the High Court correctly answered the question of law referred to it.
The appeal falls and is dismissed with costs.
Appeal dismissed.
[/INST]The assesses had made profits during the assessment year 1951 52 but after deduction of the depreciation allowance it was found to have incurred a loss for income tax purposes.
In the same year the assesses declared dividends.
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.
The assesses contended that inasmuch as there was no income at all which was 954 taxable the words " on the total income " in paragraph B did not apply to it and no additional income tax could be levied.
The appellant, relying on the proviso to paragraph B, contended that additional income tax was imposed on excess dividend and if excess dividend was paid out, the liability to tax arose: Held, that the assessee was not liable to pay additional incometax.
The liability to tax was imposed by section 3 of the Income tax Act and the Finance Act merely laid down the rates at which tax was to be levied on the total income.
If there was no income there was no question of applying a rate to the " total income " and no income tax or super tax could possibly result.
The word " additional " in the expression "additional income tax " implied that there was a tax before.
The expressions " charge on the total income " and " profits liable to tax " in paragraph B contemplated only those cases where there was income and not cases where there was loss.
Consequently the expression " dividends payable out of such profits " could only apply when there were profits and not when there were no profits.
The imposition of additional income tax was conditioned by the existence of income and profits.
The legislature used language appropriate to income and applied the rate to the " total income ".
Where there was no total income the law could not apply and the courts could not be asked to supply the omission made by the legislature or to delete or to modify any words.
If the words of a taxing statute failed then so did the tax.
The courts could not, except rarely and in clear cases, help the draftsman by a favourable construc tion.
Curtis vs Stovin, , Commissioner of Incometax vs Teja Singh, S.C., Whitney vs Commissioners of Inland Revenue, , Special Commissioners of Income Tax vs Linsleys, Ltd., and Commissioners of Inland Revenue vs South Georgia Co. Ltd. , distinguished.
The Cape Brandy Syndicate vs The Commissioners of Inland Revenue,(1620) and Wolfson vs Commissioners of Inland Revenue,(1949) , referred to.
The proviso to paragraph B prescribed varying rates for varying circumstances; it dealt with rates alone and not with the chargeability to tax.
There were no words in this proviso making the excess dividend into income or subjecting it to tax independently of the charge to tax on the total income.
</s>
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<s>[INST] Summarize the judgementCivil Appeals Nos. 525 and 526 of 1960.
Appeals from the judgment and order dated March 20, 1959, of the Orissa High Court in O.J.C. No. 12 of 1959.
382 A. Viswanatha Sastri, B.R.L. Iyengar and T. M. Sen, for the appellant (In C.A. No. 525/60) and respodent No. 1 (in C.A. No. 526 of 1960.) B. P. Maheshwari, for the appellants (in C.A. No. 526/60) and Respondents Nos.
2 to 8, 10, 13 to 16, 19 21, 23, 25, 27, and 28 (in C.A. No. 525/60).
A. Ranganadham Chetty.
A. V. Rangam, section Mishra, A. Vedavalli and R. Patnaik, for respondent No. 1 (in C.A. No. 525/60) and 2 (in C.A. No. 526 of 60).
December 22.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These two appeals are directed against the order passed by the High Court of Orissa under article 226 of the Constitution striking down as unconstitutional sections 4 and 5 (1) of orissa Ordinance I of 1959 promulgated by the Governor of Orissa on January 15, 1959.
This Order was passed on the Writ Petition filed by Mr. B. K. Bose against the State of Orissa and 27 persons who were elected Councillors of the Cuttack Municipality, including the Chairman and the Vice Chairman respectively.
Appeal No. 525 has been filed by the State of Orissa whereas Appeal No. 526 is filed by the said Municipal Councillors.
The appellants in both the appeals obtained leave from the Orissa High Court to appeal to this Court.
It appears that during December, 1957 to March, 1958, elections were held for the Cuttack Municipality under the provisions of the Orissa Municipal Act, 1950 Orissa (XXXIII of 1950) (hereinafter called the Act) and the 27 appellants in Appeal No. 526 of 1960 were declared elected as Councillors.
From amongst them, Manmohan Mishra was elected the Chairman and Mahendra Kumar Sahu the Vice Chairman.
Mr. B. K. Bose, who is an Advocate practising in Cuttack and a resident within the municipal limits of Cuttack, 383 had contested the said elections as a candidate from Ward No.13.
He was, however, defeated.
Thereupon, he presented an application to the High Court (O.J.C. No. 72 of 1958) to set aside the said elections.
To this application he impleaded the State of Orissa and the 27 elected Councillors.
In his petition Mr. Bose alleged that the elections held for the Cuttack Municipality were invalid and he claimed an injunction restraining the 27 respondents from functioning as elected Councillors and the Chairman and the Vice Chairman amongst them from discharging their duties as such.
The respondents to the petition traversed the allegations made by Mr. Bose and urged that the elections were valid and that the petitioner was not entitled to any relief under.
article 226.
The High Court upheld the contentions raised by the petitioner.
It came to the conclusion that the qualifying date for determining the age qualification of voters under s.13 of the Orissa Municipal Act had been published by the State Government only on January 10, 1958, though the preliminary electoral rolls had already been published on December 23, 1957.
In consequence, the claims and objections had been invited for a period of 21 days from the said date to January 12, 1958.
As a result of the delay made in publishing the qualifying date for the determination of age qualification of voters, the citizens of Cuttack were, in fact, given only two days ' time to file their claims and objections, whereas under the relevant Election Rules they were entitled to 21 days.
The High Court also came to the conclusion that this drastic abridgment of the period for filing claims and objections had materially affected the results of the elections, by depriving several voters of their right to be enrolled as such.
The High Court also found that whereas a candidate was entitled to 15 clear days for the purpose of canvassing, the notification issued under the Orissa Municipal Election Rules curtailed this period to 384 14 days.
According to the High Court, the respondents to the petition had failed to show that the results of the elections had not and could not have been affected by the contravention of the said Rules.
On these findings, the elections in question were set aside and appropriate orders of injunction issued as claimed by the petitioner.
This judgment was pronounced on December 11, 1958.
It appears that the State of Orissa took the view that the effect of the said judgment could not be confined only to Cuttack Municipality.
As a result of the findings made by the High Court during the course of the said judgment the validity of elections to other Municipalities ' might also be exposed to the risk of challenge and that would have necessitated the preparation of fresh electoral rolls after following the procedure prescribed in that behalf by the Act.
That is why the Governor of Orissa promulgated the impugned Ordinance on January 15, 1959.
Broadly stated, the effect of the Ordinance was that the elections to the Cuttack Municipality stood validated and the said Municipality began to function once again.
It also validated the electoral rolls prepared in respect of the other Municipalities in the State of Orissa and thus sought to save elections held or to be held in respect of the said Municipalities from any possible challenge.
When Mr. Bose found that his success in the Writ Petition (O.J.C. No. 72 of 1958) had thus been rendered illusory by the Ordinance, he moved the High Court again by the present Writ Petition.
He contended that the material provisions of the Ordinance, viz., sections 4 and 5(1) were unconstitutional and he asked for an appropriate relief on that basis.
The High Court has again upheld the contentions raised by Mr. Bose and has struck down ss.4 and 5(1) of the Ordinance and issued appropriate orders of injunction restraining the elected Councillors and 385 the Chairman and Vice Chairman from functioning as such.
The State of Orissa and the 27 Councillors by separate applications obtained a certificate from the High Court and have come to this Court by their two separate appeals Nos.
525 and 526 of 1960, Before dealing with the validity of the impugned provisions of the Ordinance, it is necessary to consider the broad features of the Ordinance itself.
As the preamble to the Ordinance shows, the Governor of Orissa promulgated it because he thought it necessary to provide for the validation of electoral rolls and elections to Municipalities.
In his opinion, the preparation of fresh electoral rolls and the holding of fresh elections which would have become necessary unless a validating Ordinance had been passed, would have entailed huge expenditure and would have given rise to problems regarding the administration of such Municipalities during the intervening period.
He also thought that it was necessary to take immediate steps to provide for the validation of the electoral rolls and the elections since the Legislature of the State of Orissa was not then in session and the Governor thought circumstances existed which rendered it necessary to take immediate action.
In exercise of the powers conferred on him by article 213(1) of the Constitution, he was, therefore, pleased to promulgate the Ordinance.
That, according to the statement made in the preamble to the Ordinance explains the genesis of its promulgation.
The Ordinance consists of five sections.
Section 1 gives its short title and extent, while s.2 is the defining section.
Sections, 3, 4 and 5 read thus: "3.
(1) Notwithstanding the Order of any Court to the contrary or any provision in the Act or the rules thereunder: (a) the electoral rolls of the Cuttack Municipality shall be, and shall always 386 be deemed to have been validly prepared and published; and (b) the said electoral rolls shall be deemed to have come in force on the date of publication and shall continue to be in force until they are revised in accordance with the rules made in this behalf under the Act.
(2) The validity of the electoral rolls shall not be called in question in any court on the ground that the date on which a person has to be not less than 21 years of age was fixed under Section 13 of the act after the publication of the preliminary electoral rolls.
Any order of a court declaring the election to the Cuttack Municipality invalid on account of the fact that the electoral rolls were invalid on the ground specified in Sub section (2) of section 3 or on the ground that the date of polling of the election was not fixed in accordance with the Act or the rules made thereunder, shall be deemed to be and always to have been of, no legal effect, whatsoever, and the elections to the said Municipality are hereby validated.
(1) All actions taken, and powers exercised by the Councillors, Chairman or Vice Chairman of the Cuttack Municipality prior to the coming into force of this Ordinance shall be deemed to have been validly taken, and exercised.
(2) All actions taken and powers exercised by the District Magistrate of Cuttack in respect of the Cuttack Municipality in pursuance of the order of the Government of Orissa in the Health (L. section G.) Department No. 8263 L.S.G. dated the 13th December, 1958, shall be deemed to have been taken 387 and exercised by the Council of the said Municipality or its Chairman or Vice Chairman, as the case may be.
" It will thus be seen that section 3 purports to validate the electoral rolls which had been held to be invalid by the High Court in Writ Petition No. 72 of 1958.
Sub section (1) of section 3 deals specifically with the infirmities found in the elections held for the Cuttack Municipality whereas sub section
(2) deals with the defects in the electoral rolls in respect of all the Municipalities.
Section 4 validates, in particular, the elections to the Cuttack Municipality which had been held to be invalid by the High Court.
Section 5(1) purports to protect all actions taken and powers exercised by the Councillors, the Chairman and the Vice Chairman prior to the coming into force of the Ordinance, while section 5(2) validates all actions taken and powers exercised by the District Magistrate of Cuttack in respect of the Cuttack Municipality in pursuance of the Order there specified.
In other words, the Ordinance is a validating Ordinance.
It purports to validate the elections of the Cuttack Municipality in particular and to make valid and regular the electoral rolls which would otherwise have been held to be irregular and invalid in accordance with the judgment of the High Court.
Before the High Court, on behalf of Mr. Bose five points were raised.
It was argued that the provisions of the Ordinance were a mere colourable device to set aside the judgment of the High Court in O.J.C. No. 72 of 1958.
It was, in fact, and in substance, not any exercise of legislative power by the Governor but assumption by him of judicial power which is not warranted by the Constitution.
The High Court has rejected this contention and the finding of the High Court on this point has not been challenged before us.
So we are relieved of the task of considering the merits of this finding.
388 It was then contended that section 4 of the Ordinance contravenes the equality before law guaranteed by article 14 of the Constitution.
It was also urged alternatively that even if section 4 did not contravene article 14, it did not successfully cure the invalidity of the elections to the Cuttack Municipality arising out of the fact that material prejudice had been caused to the citizens by the abridgement of the period for filing claims and objections and of the period for canvassing.
In regard to section 5(1) the argument was that it was invalid under article 254(1).
All these three contentions have been accepted by the High Court and the correctness of the findings recorded by the High Court in that behalf fall to be considered in the present Appeals.
The last contention raised in support of the petition was that on February 23, 1959, a Bill entitled "Orissa Municipal Election Validating Bill, 1959" which contained substantially similar provisions as those of the Ordinance, was sought to be introduced in the Orissa Legislative Assembly but was defeated by a majority of votes and that made the ordinance invalid.
This contention has been rejected by the High Court and the finding of the High Court on this point has not been challenged before us.
Thus, out of the 5 points raised before the High Court, 3 have been argued before us.
For Mr. Bose, Mr. Ranganathan Chetty has also urged two additional points.
He has contended that the present appeals have really become infructuous in view of the fact that the impugned Ordinance lapsed on April 1, 1959.
This argument has been strenuously pressed before us in the form of a preliminary objection against the competence of the appeals themselves.
On the merits, Mr. Chetty has urged an additional ground that the Ordinance was invalid inasmuch as it purported to invalidate the judgment of the High Court in O.J.C. No. 72 of 1958 delivered under article 226 of the Constitution.
389 Let us first consider whether section 4 offends the equality before law guaranteed by article 14.
In coming to the conclusion that the said section is unconstitutional on the ground that it contravenes article 14.
the High Court was very much impressed by the fact that as a result of its earlier judgment, Mr. Bose had obtained a very valuable right of preventing the existing Councillors from functioning as such and of having fresh elections conducted according to law in which he would have the right to stand as a candidate once again.
The petitioner Mr. Bose, may legitimately ask, observed the High Court, why, when hundreds of successful suitors who have sought the help of that Court for relief under article 226 were allowed to enjoy the fruits of their success, he alone should have been discriminated against by hostile legislation.
With respect, this rhetorical approach adopted by the High Court, in dealing with the question about the validity of section 4 is open to the obvious criticism that it is inconsistent with the view taken by the High Court itself in this very judgment that the Governor was competent to issue an Ordinance to invalidate the judgment of the High Court pronounced in O.J.C. No. 72 of 1958; as we have already pointed out one of the contentions raised by Mr. Bose against the validity of the Ordinance was that in the guise of the exercise of the legislative powers, the Governor had purported to exercise judicial powers and that was beyond his competence.
Since the finding of the High Court on this question has not been challenged before us by Mr. Chetty, we propose to express no opinion on its merits.
But if it is held that in promulgating the validating Ordinance the Governor was exercising his powers under article 213(1) and his legislative competence in that behalf is not in doubt, then it is difficult to appreciate how the High Court should have allowed itself to be influenced by the grievance made by Mr. Bose that he had been deprived of the fruits of his success in the earlier Writ Petition.
390 The High Court was, no doubt, influenced by its conclusion that Mr. Bose alone had been singled out for discriminatory treatment of the impugned Ordinance and that, according to the High Court, constituted violation of the provisions of article 14.
There are, however, two obvious infirmities in this conclusion.
Looking at the scheme of the Ordinance, it is clear that sections 3 and 4 must be read together.
The object of the Ordinance was two fold.
Its first object was to validate the elections to the Cuttack Municipality which had been declared to be invalid by the High Court and its other object was to save elections to other Municipalities in the State of Orissa whose validity might have been challenged on grounds similar to those on which the elections to the Cuttack Municipality had been successfully impeached.
It is with this two fold object that section 3 makes provisions under its two sub sections
(1) and (2).
Having made the said two provisions by section 3, section 4 proceeded to validate the elections to the Cuttack Municipality.
If we bear in mind this obvious scheme of the Ordinance, it would be unreasonable to read section 4 in isolation and a part from section 3.
The High Court was in error in dealing with section 4 by itself unconnected with section 3 when it came to the conclusion that the only subject of section 4 was to single out Mr. Bose and deprive him of the fruits of his success in the earlier Writ Petition.
If sections 3 and 4 are read together, it would be clear that Mr. Bose alone had not been singled out or discriminatory treatment; the validating provisions applied, no doubt, to the Cuttack Municipal elections but they are also intended to govern any future and even pending dispute in regard to the elections to other Municipalities.
Therefore in our opinion, the High Court was not right in coming to the conclusion that the object of the Ordinance was only to validate the Cuttack Municipal elections and nothing more.
391 Besides, if the power to validate by promulgating an Ordinance is conceded to the Governor under article 213(1), it would not be easy to appreciate why it was not open to the Governor to issue an Ordinance dealing with the Cuttack Municipal Elections themselves.
The Cuttack Municipal Elections had been set aside by the High Court and if the Governor thought that in the public interest, having regard to the factors enumerated in the preamble to the Ordinance, it was necessary to validate the said elections, it would not necessarily follow that the Ordinance suffers from the vice of contravening article 14.
Article 14 has been the subject matter of decisions in this Court on numerous occasions.
It is now well established that what the said Article forbids is class legislation no doubt, but it does not forbid reasonable classification for the purposes of legislation.
In order that the test of permissible classification should be satisfied, two conditions have to be fulfilled, viz., (1) the classification must be founded on an intelligible differentia which would distinguish persons or things grounded together from others left out of the group, and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
As this Court has held in the case of SHRI RAM KRISHNA DALMIA V. SHRI JUSTICE section R. TENDOLKAR(1), a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.
Therefore, if the infirmity in the electoral rolls on which the decision of the High Court in the earlier writ petition was based, had not been applicable to the electoral rolls in regard to other Municipalities in the State of Orissa, then it may have been open to the Governor to issue an Ordinance only in 392 respect of the Cuttack Municipal Elections, and if, on account of special circumstances or reasons applicable to the Cuttack Municipal Elections, a law was passed in respect of the said elections alone, it could not have been challenged as unconstitutional under article 14.
Similarly, if Mr. Bose was the only litigant affected by the decision and as such formed a class by himself, it would have been open to the Legislature to make a law only in respect of his case.
But as we have already pointed out, the Ordinance does not purport to limit its operation only to the Cuttack Municipality; it purports to validate the Cuttack Municipal Elections and the electoral rolls in respect of other Municipalities as well.
Therefore, we are satisfied that the High Court was in error in coming to the conclusion that section 4 contravenes article 14 of the Constitution.
Having regard to the fact that certain infirmities, in the electoral rolls were presumably found to be common to electoral rolls in several Municipalities the Governor thought that the decision of the High Court raised a problem of public importance affecting all Municipal elections in the State and so, acting on the considerations set out in the preamble to the ordinance, he proceeded to promulgate it.
In dealing with the challenge against section 4 of the said Ordinance, the High Court should have considered all the provisions of the Ordinance together before coming to the conclusion that section 4 was discriminatory and contravened Art 14.
In support of the finding of the High Court, Mr. Chetty referred us to the decision in the State of Vermont vs Albert Shedroi.
(1) In that case the Court was dealing with a statute which exempted certain persons from the obligation to obtain a licence for the privilege of selling goods as peddlers.
The impugned statute conferred exemption on persons resident in the State, who had served as soldiers in 393 the war for the suppression of the Rebellion in the Southern States, and were honourably discharged.
This statute was held to contravene the provisions of the 14th Amendment whereby no state can deny to any person within its jurisdiction the equal protection of the laws.
In our opinion, this decision can afford no assistance to Mr. Chetty in supporting the finding of the High Court that section 4 contravenes article 14.
The services rendered by the soldiers in the war for the suppression of the Rebellion in the Southern States had hardly any rational connection with the exemption granted to them from obtaining licence for selling goods as peddlers and so, the classification purported to be made by the impugned statute was obviously unreasonable and irrational.
That is not so in the present case.
Certain irregularities in the electoral rolls were discovered and it was thought that unless the said irregularities were validated, public exchequer would be involved in huge expenditure and problems regarding the administration of Municipalities during the intervening period would arise.
That is why the Ordinance was promulgated.
The impugned provisions of the Ordinance cannot be said to be based on a classification which is not rational and which has no reasonable connection with the object intended to be achieved by the Ordinance.
Therefore, in our opinion the conclusion of the High Court that section 4 contravened article 14 cannot be sustained.
As we have already pointed out, the High Court has taken the view that even if section 4 did not offend against Art 14, it nevertheless could not cure the invalidity of the elections to the Cuttack Municipality inasmuch as it had not said anything about the finding of the High Court that the irregularities complained against had caused material prejudice to the citizens of Cuttack by the abridgement of the period for filing claims and objections 394 and of the period for canvassing.
When the validating provision, observes the High Court, merely cures the invalidity arising out of the fixation of the qualifying date after the publication of the preliminary electoral rolls and is completely silent about the results of the elections being materially affected thereby, it cannot be said to have annulled the judgment of this Court in O. J. C. No. 72 of 1958.
The same reasoning would also apply to the abridgement of the period of canvassing from 15 days to 14 days which also materially affected the results of the elections.
The High Court thought that if the Governor wanted to annul the effect of its earlier decision, he should have made express provision to that effect or at least should have referred to that fact in Section 4.
It is not easy to appreciate this view.
What the Ordinance has purported to do is to validate the electoral rolls and thereby cure the infirmities detected in them.
Once that is done, there is hardly any occasion to say further that no prejudice shall be deemed to have been caused by the said infirmities of the electoral rolls.
In validating the elections to the Cuttack Municipality, the Ordinance was not expected or required to cover the reasons given by the judgment or the finding recorded in it.
The basis of the judgment was the irregularities in the Electoral rolls and the procedure followed in holding the elections.
Those irregularities have been validated and that inevitably must mean that the elections which were held to be invalid would have to be deemed to be valid as a result of the Ordinance and so no question of material prejudice can arise.
That being so, we do not think there is any substance in the alternative argument urged in support of the plea that section 4 is ineffective even if it does not contravene Art, 14.
That takes us to the question as whether section 5(1) is invalid.
The High Court has taken the view that section 5(1) purports to protect not only actions taken and powers exercised under the Municipal 395 Act but all actions and all powers exercised even outside the Municipal Act in violation of other laws.
Basing itself on this broad and wide construction of 5(1), the High Court thought that between ss.5(1) and s.477A of the Indian Penal Code there was inconsistency.
That is why it struck down section 5(1) under articles 254(2) and 213(1) of the Constitution.
We have no hesitation in holding that the construction placed by the High Court on section 5 (1) is obviously unreasonable.
The object of section 5 (1) is plain and unambiguous.
It seeks to save actions taken and powers exercised by the Councillors, the Chairman or the Vice Chairman in pursuance of, and in accordance with, the provisions of the Municipal Act.
Having validated the elections to the Cuttack Municipality, it was obviously necessary to validate actions taken and powers exercised by the appropriate authorities and Councillors as such after the elections were held and before they were invalidated by the judgment of the High Court.
Having regard to this plain object which s.5(1) is intended to serve, it is,.
we think, wholly unreasonable to put upon its words an unduly wide construction and then strike it down as inconsistent with article 254(2) of the Constitution.
It is true that section 5(1) is not in express terms confined to all actions taken and powers exercised under the Municipal Act, but, in the context, that is obviously intended.
Indeed, it is doubtful whether it was really necessary to add the words under the Municipal Act having regard to the scheme of the ordinance and the context in which section 5(1) is enacted.
Therefore, we do not think that the High Court was justified in holding that section 5(1) was void to the extent of its repugnancy to the existing laws dealing with matters in the Concurrent List.
There is no repugnancy to any existing laws and so, there is no contravention of article 254(2) of the Constitution at all.
We will now deal with the two additional grounds urged before us by Mr. Chetty.
He contends 396 that the Governor was not competent to issue an Ordinance with a view to over ride the judgment delivered by the High Court in its jurisdiction under article 226 of the Constitution.
This argument is obviously untenable, for it erroneously assumes that the judgment delivered by the High Court under article 226 has the same status as the provisions in the Constitution itself.
In substance, the contention is that just as a provision in the Constitution like the one in article 226 cannot be amended by the Governor by issuing an Ordinance, so a judgment under article 226 cannot be touched by the Governor in his Ordinance making power.
It is true that the judgment delivered by the High Court under Art.226 must be respected but that is not to say that the Legislature is incompetent to deal with problems raised by the said judgment if the said problems and their proposed solutions are otherwise within their legislative competence.
It would, we think, be erroneous to equate the judgment of the High Court under article 226 with Art 226 itself and confer upon it all the attributes of the said constitutional provision.
We must now turn to the main argument urged before us by Mr. Chetty that the Ordinance having lapsed on April 1st 1959, the appeals themselves have become infructuous.
He contends that the Ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and so, as soon as it lapsed, the invalidity in the Cuttack Municipal elections which had been cured by it revived and so there is no point in the appellants challenging the correctness of the High Court 's decision.
Indeed, it was this point which Mr. Chetty strenuously stressed before us in the present Appeals.
If the true legal position be that after the expiration of the Ordinance the validation of the elections effected by it comes to an end, then Mr. Chetty would be right in contending 397 that the appeals are infructuous.
But is it the true legal position ? that is the question which calls for our decision.
It is true that the provisions of section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act.
As observed by Patanjali Sastri, J., as he then was, in section Krishnan vs The State of Madras(1) the general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires.
That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of section 6 of the General Clauses Act.
Incidentally, we ought to add that it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by article 213(2) (a).
Wicks vs Director of Public Prosecutions (2) is an illustration in point.
The Emergency Powers (Defence) Act, 1939, section 11, sub section 3, with which that case was concerned, provided that the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done.
The appellant Wicks was convicted in May, 1946, of offences committed in 1943 and 1944, contrary to Regulation 2A of the Defence (General) Regulations 1939, made pursuant to the Act.
Both the Act and the Regulation expired on February 24, 1946.
It was as a result of this specific saving provision contained in section 11 (3) of the Act that the House of Lords held that, although regulation 2A had expired before the trial of the appellant, he was properly convicted after the expiration of the Act, since section 11 (3) did not expire with the rest of the 398 Act, being designed to preserve the right to prosecute after the date of expiry.
Mr. Chetty contends that there is and can be, no corresponding saving provision made by the Ordinance in question and so, the invalidity of the Cuttack Municipal Elections would revive as soon as the Ordinance expired by lapse of time.
This contention is based on the general rule thus stated by Craies: "that unless a temporary Act contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect.
That is why offences committed against temporary Acts must be prosecuted and punished before the act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." (1) In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Chetty relies is inflexible and admits of no exceptions.
It is true for instance that offences committed against temporary Acts must be prosecuted and punished before the act expires.
If a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate.
But is that an inflexible and universal rule ? In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not.
As observed by Parker, B. in the case of Steavenson vs Oliver, (2) "there is a difference between temporary statutes and statutes which are repealed the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the 399 extent of the restrictions imposed, and the duration of the provisions, are matters of construction.
" In this connection, it would be useful and interesting to consider the decision in the case of Steavenson itself.
That case related to 6th Geo. 4, c. 133, section 4 which provided that every person who held a commission or warrant as surgeon or assistant surgeon in His Majesty 's Navy or Army, should be entitled to practise as an apothecary without having passed the usual examination.
The statute itself was temporary and it expired on August 1, 1826.
It was urged that a person who was entitled to practise as an apothecary under the Act would lose his right after August 1, 1826, because there was no saving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it.
The Court rejected this contention and held that the person who had acquired a right to practise as an apothecary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right after its expiration.
In dealing with the question about the effect of the expiration of the temporary statute, Lord Abinger, C. B. observed that "it is by no means a consequence of an act of Parliament 's expiring, that rights acquired under it should likewise expire.
Take the case of a penalty imposed by an act of Parliament; would not a person who had been guilty of the offence upon which the legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration ? The case of a right acquired under the Act is stronger.
The 6 Geo. 4 c. 133, provides that parties who hold such warrants shall be entitled to practise as apothecaries; and we cannot engraft on the statute a new qualification, limiting that enactment.
" It is in support of the same conclusion that Parker, B. made the observations which we have already cited.
"We must look at this act", 400 observed Parker, B., "and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege, in question.
It seems to me that the meaning of the legislature was that all assistant surgeons, who were such before the 1st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on the 1st of August, 1815, and that their privileges, as such was of an executory nature, capable of being carried into effect after the 1st of August, 1826.
" Take the case of a penalty imposed by a temporary statute for offences created by it.
If a person is tried and convicted under the relevant provisions of the temporary statute and sentenced to undergo imprisonment, could it be said that as soon as the temporary statute expires by efflux of time, the detention of the offender in jail by virtue of the order of sentence imposed upon him would cease to be valid and legal ? In our opinion, the answer to this question has to be in the negative.
Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule.
If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired.
If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute.
That appears to be the true legal position in the matter.
This question sometimes arises in another form.
As Craies has observed: "If an act which repeals an earlier Act is itself only a temporary Act, the general rule is that the earlier Act is revived after the temporary Act is spent; and inasmuch as ex hypothesis the temporary Act expires and is not repealed, the rules of construction laid 401 down by ss.11(1) and 38 (2) of the Interpretation Act, 1889, do not apply, But there will be no revivor if it was clearly the intention of the legislature to repeal the earlier Act absolutely." Therefore even as regards the effect of the repealing of an earlier Act made by a temporary Act.
the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible rule in that behalf can be laid down.
This position has been tersely expressed by Lord Ellenborough, C. J., when he observed in Warren vs Windle (1) "a law though temporary in some of its provisions, may have a permanent operation in other respects.
The stat, 26 Geo. 3, c. 108, professes to repeal the statute of 19 Geo. 2, c. 35, absolutely, though its own provisions, which it substituted in place of it, were to be only temporary.
" In other words, this decision shows that in some cases the repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act.
We have referred to this aspect of the matter only by way of analogy to show that no inflexible rule can be laid down about the effect of the expiration of a temporary Act.
Now, turning to the facts in the present case, the Ordinance purported to validate the elections to the Cuttack Municipality which had been declared to be invalid by the High Court by its earlier judgment so that as a result of the Ordinance, the elections to the Cuttack Municipality must be held to have been valid.
Can it be said that the validation was intended to be temporary in character and was to last only during the life time of the Ordinance ? In our opinion, having regard to the object of the ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived.
The rights created by this 402 Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance.
The Ordinance has in terms provided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated.
That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires.
Therefore, we do not think that the preliminary objection raised by Mr. Chetty against the competence of the appeals can be upheld.
The result is that the appeals are allowed, the order passed by the High Court is set aside, and the Writ Petition filed by Mr. Bose is dismissed with costs throughout.
Appeals allowed.
[/INST]The provision as to notice in writing of the lessor 's intention to determine the lease, container in section 111(g) of the , as amended in 1929, is not based on any principle of justice, equity or good conscience and is not applicable to leases executed prior to 1st April, 1930.
Where a lease deed executed before the , came into force, provided that the lessee 's rights should come to an end on default of payment of rent, and, as rent was not duly paid, the lessor instituted a suit for ejectment of the lessee without giving him a notice in writing of his (the lessor 's) intention to determine the lease : Held, that the suit was maintainable.
Umar Pulavar vs Dawood Rowther (A.1,R. , Brahmayya vs Sundodaramma (A.I.R. , Tatya Savla Sudrik vs Yeshwanta Kondiba Mulay disapproved.
Toleman vs Portbury (L.R. 6 Q.B. 245), Prakash Chandra Das vs Rajendra Nath Basu (I.L.R. , Rama Aiyangar vs Guruswami Chetty , Venkatachari vs Rangaswami Aiyar (36 M.L.J. 532) and Krishna Shetti vs Gilbert Pinto (I.L.R. relied on.
Venkatarama Aiyar vs Ponnuswamy Padayachi (A.I.R. 1935 Mad. 918), Aditya Prasad vs Ram Ratanlal (57 I A. 173), Muhammad Raza vs Abbas Bandi Bibi (59 I.A. 236), Roberts vs Davey ; distinguished.
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<s>[INST] Summarize the judgementAppeal No. 335 of 1957.
Appeal by special leave from the judgment and order dated January 31, 1957, of the Election Tribunal, Ajmer, in Election Petition No. 2 of 1956.
50 388 Mukat Behari Lal Bhargava and Naunit Lal, for the appellant.
Respondent No. 1 in person.
September 12.
The following Judgment of the Court was delivered by KAPUR,J. This is an appeal from the order of the Election Tribunal dated January 31, 1957, setting aside the election of the appellant, Maulana Abdul Shakoor, who was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer.
He received 19 votes as against 7 polled in favour of the other candidate who is respondent No. 1 in this appeal.
The total number of valid votes polled was 26 and there were 3 invalid votes.
The result of the election was published in the Official Gazette on March 31, 1957, declaring the election of the appellant.
The unsuccessful candidate, the present first respondent, filed his election petition on May 2, 1956.
It is not necessary to set out all the allegations in the petition because the main controversy between the parties is whether the successful candidate, the present appellant, held an " office of profit " under the Government.
The impugned election was held on March 22, 1956.
By a notification issued on February 17, 1956, the nominations for candidature were to be filed between February 28, 1956, and March 1, 1956.
The date for scrutiny was March 5, 1956, and for the polling March 22, 1956.
The appellant filed two nomination papers on February 28, 1956, and a third one on March 1, 1956.
The respondent Rikhab Chand Jain also filed his nomination papers on March 1, 1956.
On March 5, 1956, the respondent Rikhab Chand Jain raised certain objections to the validity of the appellant 's nomination, the main ground being that the appellant was holding an office of profit under the Government.
The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28, 1956, but accepted the third one, i.e., of March 1, 1956, because, according to that officer, 389 under the provisions of Durgah Khwaja Saheb (Emeregency Provisions) Act, 1950 (XVII of 1950) which was in force up to February 29, 1956, the appellant was holding an office of profit under the Government but on the coming into force of the Durgah Khwaja Saheb Act (XXXVI of 1955) on March 1, 1956, he no longer held such office under the Government.
On May 3, 1956, the respondent filed an election petition under section 81 of the Representation of the People Act, 1951, in which he submitted that the third nomination paper of the appellant should also have been rejected as even under the provisions of Durgah Khwaja Saheb Act (XXXVI of 1955), the appellant was holding an office of profit under the Government and therefore his case was covered by the provisions of article 102 (1)(a) of the Constitution.
He also prayed that he be declared elected as the votes cast in the appellant 's favour were " thrown away " votes and the respondent alone received a majority of valid votes.
A majority of the Election Tribunal by their order dated January 31, 1957, held that on March 1, 1956, the appellant was holding an office of profit under the Government and therefore his nomination paper was hit by article 102(1) (a) of the Constitution.
They set aside his election and accepting the contention as to " thrown away " votes declared the respondent elected.
Disagreeing with the majority, the Chairman of the Election Tribunal held that on March 1, 1956, the appellant was no longer holding an office of profit under the Government, his nomination paper was rightly accepted and his election was valid and therefore the respondent could not be declared elected.
On the question whether the two nomination papers of the appellant dated February 28, 1956, were valid or not the Tribunal unanimously held them to be invalid on the ground that the appellant held an office of profit under the Government on that date.
It is not necessary to go into the question whether the two nomination papers filed by the appellant on February 28, 1956, were valid or not because if the nomination paper filed on March 1, 1956, is valid the question of their validity would not arise.
It may 390 here be stated that the argument before us has proceeded on the assumption that the appellant held an office of profit.
The controversy between the parties was therefore confined to whether this office of profit was held under the Government of India and therefore the disqualification for membership under article 102(1)(a) applies to the appellant.
In order to resolve this controversy the important question of construction that arises is: was the appellant holding an office of profit under the Government of India and does article 102(1)(a) of the Constitution operate ? This article is as follows: 102(1) " A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; " This article occurs under the heading Disqualifications of Members.
In the same part of the Constitution, i.e., Part V, are given the disqualifications for election to the offices of President and Vice President.
The relevant part of article 58 which lays down the disqualification for the office of the President is: article 58(1) "No person shall be eligible for election as President unless he (a). . . . . . (b). . . . . . (c). . . . . . (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
" There is a similar provision in regard to the Vice President in article 66(4).
Counsel has rightly pointed out the difference in the language between the two articles.
Whereas in the case of the President and Vice President the holding of an office of profit under an authority subject to the 391 control of the Government is a, disqualification, it is not so prescribed in the case of members of the legislatures.
The Madarsa Durgah Khwaja Saheb Akbari in which the appellant held the appointment of a manager (mohatmin) is a school for teaching Persian, Arabic and Muslim theology.
Before 1951 it was managed and run by the Government of the Nizam of Hyderabad.
In 1951 this school was taken over by the Durgah Committee.
On February 28, 1955, the appellant was given an honorary appointment of mohatmin (manager) of the school by the Administrator of Durgah Khwaja Saheb.
He was to work under the Administrator and was to hold charge of the management of the school.
But from May 1955 he was being paid Rs. 100 per month which has been variously described as salary and honorarium.
Counsel for the appellant raised three questions of construction that this appointment as manager of the school amounted neither to an office nor to an office of profit nor to an office of profit under the Government.
A decision favorable to the appellant on the last question, i.e., office of profit under the Government, would render the decision of the other two questions wholly unnecessary and therefore assuming that the appellant held an office of profit, the question remains: was it an office of profit under the Government and therefore fell within article 102 (1)(a) of the Constitution.
In order to determine this we have to examine the provisions of the Statute under which the appointing authority came into existence and its powers under the statute.
Before and up to 1936 the Durgah Khwaja Saheb Endowment was administered by a committee which was constituted by the Chief Commissioner of Ajmer under section 7 of the Religious Endowments Act (XX of 1863).
In 1936 the then Central Legislature enacted the Durgah Khwaja Saheb Act (XXIII of 1936).
By the provisions of that Act the management and administration was vested in Durgah Committee constituted under section 4 of the Act.
It was a body corporate with perpetual succession and common seal having the right to sue and be sued in the 392 name of the president of the Committee.
Under section 5 which dealt with the constitution of the Committee it was to consist of 25 members some of whom were elected and some nominated.
Section 11(f) of the Act gave to the Committee the power to appoint all its servants.
The Act of 1936 was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Ordinance 3 of 1949, which in turn was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Act (XV11 of 1950).
By section 3 of that Act the Durgah Committee constituted under the Act of 1936 was superseded and the management was vested in an Administrator appointed by the Central Government who under section 7 was to be under the control of the Central Government and had all the powers of the committee constituted under the Act of 1936.
That Act continued to be in force up to February 29, 1956, and it was during its continuance that the appellant filed two nomination papers on February 28, 1956, which were rejected by the Returning Officer.
The Act of 1950 was replaced by the Durgah Khwaja Saheb Act (XXXVI of 1955) which, received the assent of the President on October 14, 1955, but came into force oil March 1, 1956.
Under section 4(1) of this Act the administration, control and management of the Durgah Endowment came to be vested in a Committee, which is a body corporate having perpetual succession and common seal and which can sue and be sued through its President.
Under section 5 the Committee is to consist of not less than 5 and not more than 9 members.
of the Hanafi Muslim faith all of whom are to be appointed by the Central Government.
Section 8 gives power to the Central Government to supersede the Committee.
Under section 9 the Central Government in consultation with the Committee can appoint a Nazim (administrator) of the Durgah who is an ex officio secretary of the committee.
His salary is to be fixed by the Central Government but is to be paid out of the revenues of the Durgah Endowment funds.
The Committee exercises its power of administration, control and management through the Nazim, 393 The powers and duties of the Committee are given in section 11 of the Act; clause (i) of this section which is relevant for the purpose of this case when quoted runs as under: s.11 " The powers and duties of the Committee shall be (i) to appoint, suspend or dismiss servants of the Durgah Endowment.
" Under section 20 the Committee has the power to make bye laws to carry out the purposes of the Act, and the respondent emphasised clause (1) of sub section 2 which provides: section 20 (2) " In particular and without prejudice to the generality of the foregoing power such bye laws may provide for (i) the duties and powers of the employees of the Durgah.
" Sub section 5 of this section is as follows: " (5) The Central Government may, after previous publication of its intention, cancel any bye law which it has approved and confirmed, and thereupon the bye law shall cease to have effect.
" The respondent contended that because under the Act of 1955, the Committee of Management is to be appointed by the Government who also appoint the Nazim (administrator) through whom the Committee acts and because under section 6(2) the Government has the power of removal from office of any member of the Committee and because the Committee can make bylaws prescribing the duties and powers of the employees of the Durgah, the appellant was under the control and supervision of the Central Government and therefore he was holding an office of profit under the Government of India.
It is significant to note that in laying down the disqualifications of the President and the Vice President the Constitution has expressly provided the disqualifications which include not only an office of profit under the Government of India or 394 the Government of any State but also an office of profit under any local or other authority subject to the control of any of the said Governments.
This last disqualification the Constitution does not make applicable to the members of the legislatures.
No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act.
Merely because the Committee or the members of the Committee are removeable by the Government of India or the Committee can make bye laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India.
The appellant is neither appointed by the Government of India nor is removeable by the Government of India nor is he paid out of the revenues of India.
The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor.
But the appointment of the appellant does not come within this test.
A number of election cases reported in the Election Law Reports were cited before us but they were decided on their own facts and are of little assistance in the decision of the present case.
The test of the power of dismissal by the Government or by an officer to whom such power has been delegated which was pressed in support of his case by the respondent is equally inapplicable to the facts of the present case because the appellant cannot be dismissed by the Government or by a person so authorised by the Government.
He is a servant of a statutory body which in the matter of its servants acts within the powers conferred upon it by the statute.
The respondent then sought to fortify his sub.
missions by relying on Shivnandan Sharma vs The, 395 Punjab National Bank Ltd. (1).
That was a case under the Industrial Disputes Act and the question for decision was whether a cashier appointed by the Bank 's treasurer on behalf of the Bank and paid by the Bank was a servant of the Bank.
It was held that he was.
The rule of that case is that if the master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for cash consideration, the employees thus appointed by the servant would be, equally with the servant,, servants of the master.
But that again has no application to the facts of the present case because the appellant has not been employed by a servant of the Government who is authorised to employ servants for doing some service for the Government nor is he paid out of Indian revenues.
No doubt the non payment from out of the revenues of the Union is not always a factor of any consequence but it is of some importance in the circumstances of this case.
A comparison of the different articles of the Constitution 58(2), 66(4), 102 (1)(a) and 19 1 (1)(a) dealing with membership of the State Legislatures shows in the case of members of the Legislatures unlike the case of the President and the Vice President of the Union the disqualification arises on account of holding an office of profit under the Government of India or the Governments of the States but not if such officer is under a local or any other authority under the control of these Governments.
As we have said the power of appointment and dismissal by the Government or control exercised by the Government is an important consideration which determines in favour of the person holding an office of profit under the Government, but the fact that he is not paid from out of the State revenues is by itself a neutral factor.
It has not been shown that the appellant 's appointment as a mohatmin (manager) of the school satisfies any of the tests which have been discussed above.
On the other hand on March 1, 1956, he was holding (1) ; 51 396 his appointment under a Committee which is a statutory body and such appointment cannot be called an appointment by or under the control of the Government of India nor is his salary paid out of the revenues of the Government but out of the funds of Durgah Endowment.
In the circumstances the majority of the Tribunal has erred in holding that the appellant held an office of profit under the Government and the opinion of the Chairman to the contrary lays down the correct position.
In view of this finding in regard to the office of profit under the Government, it is not necessary to go into the question whether there were any " thrown away " votes or whether the respondent has been rightly declared to have been elected.
We are of the opinion that the election of the appellant has been wrongly set aside and we would allow the appeal and set aside the order of the majority of the Tribunal.
The appellant will have his costs in this court as also before the Tribunal.
Appeal allowed.
[/INST]The appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955.
He was appointed by the administrator of Durgah Khwaja Saheb and was being paid Rs. 100 per month.
He was elected to the Council of States by the Electoral College of Ajmer and the unsuccessful candidate, the first respondent, challenged the election on the ground that the appellant wag holding an office of profit under the Government at the time of the election and was, therefore, disqualified to be chosen as a member of Parliament in view of article 102(1) (a) of the Constitution of India.
It was contended for the first respondent inter alia that as under sections 5 and 9 of the Act the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee, the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India.
But the appellant was neither appointed by the Government of India nor removable by it nor was his salary fixed by the Government and it was paid out of the funds of the Durgah Endowment.
Held, that the appellant was holding his appointment under a committee which was a statutory body and could not be considered as the holder of an office of profit under the Government of India within the meaning of article 102(1) (a) of the Constitution of India.
Accordingly, the election of the appellant was valid.
Shivnandan Sharma vs The Punjab National Bank Ltd., ; , distinguished.
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<s>[INST] Summarize the judgementCivil Appeal No. 1234 of 1977.
From the Judgment and Order dated 19.8.74 of Allahabad High Court in Civil Writ Petition No. 4827 of 1974 R.K. Garg and Shakeel Ahmed Syed for the appellant.
Prithviraj, Mrs. section Dikshit, S.K. Kulshreshta and P. Mishra for the respondents .
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against an order of a Division Bench of the Allahabad High Court dated 19.8.1974 dismissing in limine Miscellaneous Writ Petition No. 4827 of 1974 which had been filed by the appellant for quashing the 246 first respondent 's order dated 3.5.1974 removing him from service pursuant to the finding of the second respondent, U.P. Administrative Tribunal, Lucknow dated 10.7.1972 that the appellant was guilty of three of the four charges framed against him.
The appellant was employed as a Deputy Superintendent of Police at Pilibhit at the relevant time.
The fourth charge of which the appellant 'has been exonerated was that he had transferred his Vespa Scooter bearing Registration No. UPI 9117 and valued at more than Rs. 500/ to One Lal Mohd. without obtaining the previous sanction of the appropriate authority and he thereby.
contravened Rule 24(2) of the U.P. Government Servants ' Conduct Rules, 1956.
The appellant 's defence was that the transfer was effected through a reputed dealer and therefore previous sanction of the appropriate authority was not necessary.
The Tribunal found that the transaction of sale of the scooter by the appellant to Lal Mohd was effected through M/s. Anand Agencies, automobile engineers and reputed dealers in scooters and therefore there was sufficient compliance with Rule 24(2).
Charges 1 to 3 were more serious ones.
The substance of the first charge was that the appellant while posted as Deputy Superintendent of Police at Pilibhit was granted 30 days leave with effect from 11.11.1967 and had to resume his duties on 10.12.1967 but failed to resume his duties and absented himself without previous permission or intimation to the Superintendent of Public and without good or sufficient cause.
He failed to report about his whereabouts until an application was made by him on 24.4.1968 for extension of the leave.
The appellant 's defence was that he suffered from an attack of a mental disease, melancholia and was under the treatment of Dr. Mukerji at Calcutta from 1.12.1967 to 20.4.1968 and he has informed about his sudden illness and had applied for extension of the leave directly and also through his wife and he had furnished his leave address when he proceeded on 30 days leave.
The substance of the second charge was that while applying for extension of leave on 20.4.1968 he attempted to willfully deceive the Inspector General of Police by attempting to make him believe that he had been ill from 1.12.1967 to 20.4.1968 and was under treatment of a doctor at Calcutta although in fact he had been to Pakistan during the period and had obtained a medical certificate through deceitful and fraudulent ' means.
The defence of the appellant was one of denial.
He reiterated that he was under treatment of Dr. Mukerji at Calcutta from 1.12.1967 to 20.4.1968 and contended that in that 247 period he was treated by Dr. Das at Howrah from 10.1.1968 to 30.1.1968 for injuries to his nose.
The substance of the third charge was that after having proceeded on leave with effect from 11.11.1967 he unauthorisedly and unlawfully visited Karachi in Pakistan some time between 22.11.1967 and 20.4.1968 without any valid passport or travel document and the he by contravened section 3 of the Passport Act, 1967.
The appellant denied the charge and contended that he had never visited Karachi and had been suffering from melancholia and treated by Dr. Mukerji at Calcutta.
A number of witnesses for the department and some witnesses tor the defence were examined before the Tribunal which a after considering the oral and documentary evidence found charges 1 to 3 against the appellant.
One Harish Kumar, Superintendent of Police who was appointed as an assessor in the inquiry conduct before the Tribunal agreed with the findings of the Tribunal.
Subsequently, the Tribunal submitted copies of its findings to the Government with its recommendation that the appellant may be dismissed from service.
The Governor accepted the Tribunal 's findings, took a tentative decision to dismiss the appellant from service; and issued a second show cause notice dated 29.9.1972 to him.
The appellant submitted his interim reply and final reply on 19.11.1972 and 31 3.1973 respectively.
After considering the appellant 's replies the Governor agreed with the Tribunal that the charges 1 to 3 are fully established against the appellant and ordered his removal from service by the order dated 1.8.1974.
The appellant challenged his removal from service in W.P. No. 4827 of 1974 which was dismissed in limine by a Division Bench of the Allahabad High Court.
Hence this appeal by special leave.
This appeal deserves to be allowed on a short point which unfortunately has not been noticed by the learned Judges of the High Court before dismissing the writ petition in limine.
The appellant had prayed for summoning 8 witnesses for being examined in his defence by filing an application dated 17.1.1972 for that purpose.
The Tribunal dismissed that application on 19.1.1972 on the ground that it had already taken into consideration the relevant rules in the Financial Code Volume III and that it does not consider it necessary to revise its views.
The Tribunal observed in that order that the appellant has to bear the expenses of the witnesses who are private persons if he wanted to have them examined in his 248 defence.
He was, however, given one week 's time to deposit a sum of Rs.900 initially by way of travelling and daily allowances for the witnesses as well as compensation for the loss of their professional income and he was ordered to make good any shortfall.
The appellant had not deposited that amount and the witnesses had not been summoned for being examined in his defence.
The question for consideration is whether on this account there is non compliance with the principles of natural justice.
The Tribunal has relied upon Rule 20A of the Travelling Allowances Rules (Financial Handbook Volume III) in making the above order.
Sub rule l of that Rule reads thus: "20A. (13 Persons, who, not being servants of the Government, are called as witnesses in a departmental inquiry either by the authority conducting the inquiry or on behalf of the government servant whose conduct is under inquiry, shall receive the same travelling allowance and diet money as are admissible to non official witnesses summoned in criminal cases, provided that in the case of such persons who are called on behalf of the government servant whose conduct is under inquiry, the payment of travelling allowance and diet money shall be subject to the following principles: (a) travelling allowances may be Paid to witnesses summoned in the event of the government servant concerned clearing himself; (b) such allowances will be paid only in respect of witnesses whose evidence is considered of material value by the authority conducting the inquiry; and (c) in exceptional cases the authority conducting the & inquiry may, on grounds to be recorded, recommend to the Government that the principles laid down above be departed from owing to special reasons.
In such cases it will be for the Government to decide, after taking into consideration all the circumstances of the case, whether the recommendation should be accepted or not.
The authority, conducting the inquiry shall determine the class of each witness for the purpose of calculating travel 249 ling allowance and diet money under the scale prescribed for witnesses in criminal case.
" This sub rule is not quite clear, for it does not say who should bear the expenses initially or whether the inference to be made by the inquiring authority under class (c) should be made before or 1 after the examination of the witnesses.
Clause (b) of this sub rule seems to have been considered satisfied in the present case as the Tribunal had decided to summon the witnesses provided the amount was deposited by the appellant as directed.
The appellant has contended in para 31 of his writ petition that in view of G.O. No. 4l97 R/VIIIA 500 (146)/68 travelling allowance and diet money of witnesses to be examined before the Tribunal must have been paid by the State Government but he was asked to deposit a sum of Rs.900 for the witnesses being summoned and this is in violation of the relevant provision relating to conduct of proceedings before the Tribunal.
The said G.O. marked Annexure 11 to the writ petition relates to one Kunhi Ram and was evidently intended to clarify.
Rule 20A of the Traveling Rules and it reads thus: "In continuation of G.O. No. 1371 1/VIII 2000 (10/61, dt.
July 3, 1961) I am directed to say that in the special appeal the appellant had contended that the additional S.P. Agra had asked him to deposit the expenses for T.A. etc.
of defence witnesses before he summoned them.
The position in this connection has been examined by the Govt and is being clarified here.
Under para 490(5) of the police regulations the S.P. has to decide whether he should refuse to summon a , witness whose evidence he does not consider material to the issue.
The witnesses who are accepted by the S.P. for being produced in defence can be either summoned by him or allowed to be produced by the party charged, So far as the question of payment of expenses for the journey by a defence witness is concerned it is not material when once a witness is permitted to be produced whether he is summoned officially or is called by the party charged himself.
The responsibility for payment of travelling expenses to the defence witnesses produced during departmental trial conducted under section 7 of the Police Act is of the Government.
Thus if a witness has been permitted to be produced in defence, it is not open to the inquiring officer to lay down a condition that this travelling expenses should be first deposited 250 before he is summoned.
However, no expenses are to be paid for persons who are not permitted to be produced in defence.
The position with regard to the payment of travelling expenses to the defence witnesses is as follows: (i) Govt.
servants who appear as defence witnesses to give evidence of the facts which come to their knowledge in their official capacity are governed by Rule 59(1) of the Financial Handbook Volume III for the purpose of travelling allowance; (ii) As regards govt.
servants who appear as witnesses to facts which have come to their knowledge in the private capacity and appear as private individuals the position under rule 59(2) of Financial Handbook Volume III is that they are entitled to receive their actual travelling expenses from the Court and as suck they will get T.A, on an ad hoc basis and as on tour.
Thus if he is a Govt.
servant travelling in a train. . as an ordinary passenger and has to bear witness to that in his private capacity he should be paid T.A. as on tour.
The Meharrirs of the Police Stations bringing records which they maintain at P.S.s. in their official capacity will be governed by class (1) above.
(iii) Non official witnesses called or allowed to be produced by the S.P. will get T.A. under rule 20A of Financial Handbook Volume Ill." This G.O. makes it clear that responsibility for payment of travelling allowance to defence witnesses produced in departmental inquiry conducted under section 7 of the Police Act is of the Government and that if a witness has been permitted to be produced in defence it is not open to the inquiry officer to lay down a condition that his travelling expenses should be first deposited by the delinquent officer before the witness is examined.
In the present case, the Tribunal has considered the witnesses to be material but has insisted on the appellant depositing initially a sum of Rs. 900 for the travelling expense and daily allowances of the witnesses with an obligation to make good any shortfall in those allowances and loss of professional income of the witnesses.
Mr. Prithvi Raj, Senior Counsel appearing 251 for the respondent State did not contend that this G.O. does not A apply to the case of the appellant.
Moreover, the appellant was under suspension from 11.12.1967 and there is nothing on record to show that he was financially sound and in a position to deposit the sum of Rs.900 and pay any further amount which may be required to meet any shortfall in the travelling and daily allowances and the loss of professional income of the 8 more witnesses whom he wanted to be examined on his side.
The failure to cause the production of those witnesses at the expense, of the Government might have caused prejudice to the appellant for it cannot be predicated what conclusion the Tribunal would have reached in regard to charges 1 to 3 if the evidence of those witnesses was available for its consideration.
We are, therefore, of the opinion that there is no compliance with the principles of natural justice in this case.
The appeal has to be allowed on this short ground and it is accordingly allowed.
The finding of the Tribunal that the appellant is guilty of charges l to 3 and the consequent order of the Government/Governor removing the appellant from service are quashed.
The matter is remitted to the Tribunal for fresh disposal after summoning at government expense such of the material witnesses as the appellant may wish to be examined in his defence.
The appellant shall be entitled to costs quantified at Rs. 2,000.
It is needless to say that the appellant would be entitled to subsistence allowances from the date of his removal from service until the proceedings taken against him terminate and final order is passed.
This shall be paid in six weeks.
[/INST]The appellants plaintiffs instituted a suit for declaration of title and delivery of possession of immovable properties.
The first respondent was the State Government.
Prior to the institution of the suit the plaintiffs, had issued notice to the 1st respondent under section 80 CPC, but without waiting for the statutory period of two months to expire, the plaintiffs instituted the suit.
In the written statement filed on behalf of the State it was contended that the suit was not maintainable for want of proper notice under section 80 CPC.
The Trial court upheld the contention and dismissed the suit.
The order was confirmed by the first appellate court and the second appeal preferred by the appellants to the High Court was dismissed in limine.
Dismissing the appeal to this Court, ^ HELD: 1.
A suit against the Government or a public officer, to which the requirement of a prior notice under section 80 CPC is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in the writing has been delivered to the authorities concerned in the manner prescribed in the said section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable.
[314 A B] 2.
The effect of section 80 CPC prior to its amendment by Act 104 of 1976 is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after notice has been delivered.
There is clearly a public purpose underlying this mandatory provision.
310 3.
The examination of the scheme of the Section reveals that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person who issued the notice, to institute the suit involving considerable expenditure and delay.
[312 E] 4.
When the language used in the Statute is clear and unambiguous it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the legislature.
[313 B] Bhagchand Dagadusa vs Secretary of State for India, 54 IA 338; Vellayan vs Madras Province; 74 Indian Appeals 223; and Sawai Singhai Nirmal Chand vs Union of India referred to.
Nani Amma Nannini Amma vs State of Kerala AIR 1963 Kerala 114, overruled.
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<s>[INST] Summarize the judgementiminal Appeal No. 10 of 1965.
Appeal by special leave from the judgment and order dated July lo, 1964 of the Mysore High Court in.
Criminal Appeal No. 223 of 1963.
R. H. Dhebar and section P. Nayyar, for the appellant.
The respondent did not appear.
674 The Judgment of the Court was delivered by Shelat, J.
This appeal, by special leave, raises the question as to the true meaning of section 42(1) of the (4 of 1939).
The respondent, the owner of a motor car bearing No. MYU 1089, carried 8 passengers in his said car on Nanjangud Mysore Road on April 5, 1963 and collected Rs. 5 from each of them.
He was charge sheeted under section 42(1) read with section 123 of the Act for having used the said car as "a transport vehicle" without the permit required under section 42(1).
The trial Magistrate did not go into the merits though the prosecution led evidence and acquitted him relying on the decision of the High Court of Mysore in Jayaram vs The State of Mysore(1).
The State took the matter in appeal to the High Court urging that the said decision required reconsideration.
On the view that it did not, , the High Court dismissed the appeal.
Hence this appeal.
In B.S. Usman Saheb vs The State of Mysore(2) the question arose whether an owner of a motor car who had carried cement bags and other goods from one place to another without a permit under "section 42(1) could be said to have used a "goods vehicle", and, therefore, could be said to have contravened section 42(1).
The trial Magistrate convicted the accused on the ground that once the car was used to transport goods, the vehicle was converted into "a goods vehicle" and required permit.
The High Court set aside the conviction holding that the mere fact that the owner of such motor vehicle used it for transporting goods did not mean that the vehicle was converted into a "goods vehicle" so as to attract section 42(1).
Likewise in Jayaram vs The State of Mysore(1) the accused who had his motor vehicle registered as a motor car used it for ,carrying passengers, for reward.
The High Court held that the ,said vehicle having been registered as a motor car as defined by section 2(16) was not "a transport vehicle" and no prosecution could lie under section 42(1).
The State of Mysore challenges the correctness of these decisions contending that though a motor vehicle is registered as a motor car, if it is used for a purpose set out in section 42(1) viz., carrying passengers for hire or reward, the motor vehicle on that occasion must be said to have been used as a "transport vehicle", and if so used without a permit, there would be a breach of that provision and the owner so using it or permitting it to be so used would be liable to be convicted.
To test the correctness of this contention, some of the relevant 'provisions of the Act may first be considered.
Section 2(18) Redefines a "motor vehicle" as meaning any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion (1) (2) 675 is transmitted thereto from an external or internal source. ' Section 2(16) defines a "motor cat" as meaning any motor vehicle other than a transport vehicle, omnibus, road roller, motor cycle or in.valid carriage.
:Clause 25 of section 2 defines "public service vehicle" as any motor vehicle used or adapted to be used for the carriage of passengers for, hire or reward, and includes a motor cab, contract carriage and stage carriage.
Section 2(33) defines "transport vehicle" as, meaning a public service vehicle or a goods vehicle.
Section 3 requires a person driving a motor vehicle in any public place to have an effective driving licence issued to himself authorising him to drive the vehicle and provides that no person shall drive a motor vehicle as a paid employee or, shall so drive a. transport vehicle unless his driving licence specifically entitles him so to do.
Section 42 in,Chapter IV deals with control of transport vehicles.
Sub section (1)provides: "No owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or,the Commission authorising the use of the vehicle in that place in a manner in which the vehicle is being used." Section 42(1) no doubt uses the words "owner of a transport vehicle" and provides that he shall not use or permit its use in any public place save in accordance with the conditions of a permit granted or countersigned by the prescribed authority.
These words, however, cannot mean that the 'sub section applies only to cases where the motor vehicle in question is registered as a transport vehicle.
If that were so, a person can use his motor vehicle,provided it is not "a transport vehicle", for carrying passengers for hire or reward without having to take out a permit for its use as"a transport vehicle".
Since the section is enacted for control of transport ,vehicles, it could never be the intention of the Legislature to allow such an anomalous result.
The sub section, therefore, must be construed in such a manner as to effectuate the object for which it was enacted.
So construed, it must mean that if a person owns.
a motor vehicle and uses it or permits its use as a transport vehicle he can do so provided he takes out the requisite permit therefor If he does not take out the permit and uses it or permits its use ;Ls "a transport vehicle" he commits an infringement of the subsection.
What the sub section emphasises is the use of a motor vehicle as a transport vehicle and the necessity of a Permit which is reqred for purposes of exercising control over vehicles used 'as transport vehicles.
This is clear from the definitions of "transport vehicle" and a "public service vehicle".
A "transport vehicle" means a "public service vehicle" and "a public service vehicle" means any motor vehicle either used or adapted to be used for carriage of passengers for hire or ' reward.
Therefore, any motor vehicle used for carriage of passengers for hire or reward is regarded when so M2Sup.
Cl/67 14 676 used as a public service vehicle and therefore a transport vehicle.
it is the use of the motor vehicle for carrying passengers for hire or reward which determines the category of the motor vehicle whether it is adapted for that purpose or not.
It must follow that even if a motor vehicle is 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 is so used without the necessary permit such use would be in breach of section 42(1) and the owner who uses it or permits it to be so used would be liable to be punished under section 42(1) read with section 123.
A similar construction wag given to para 5(d) of Sch.
11 of the Finance Act, 1920 and section 14 of the Finance Act, 1922 in Payne vs Allcock.(1) Section 14 of the Finance Act, 1922 provided that where a licence was taken out for a mechanically propelled vehicle at any rate under the Second Schedule of the Finance Act, 1920 and the vehicle was at any time, while such a licence was in force, used in an altered condition or in a manner or for a purpose which brings it within, or which if it was used solely in that condition or in that inianner or for that purpose would bring it within a class or description of vehicle to which a higher rate of duty was applicable under the said Schedule, duty at such higher rate would be chargeable in respect of the licence for the vehicle.
The appellant in that ,case, who carried on.
business as a green grocer held a licence for a private motor car, duty having been paid thereon at the horsepower rate under para 6, Scb.
II of the Finance Act, 1920.
The car was neither "constructed" nor "adapted" for use for conveyance of goods, but the appellant, while the licence was in force, used the said car occasionally for conveyance of goods in the course of his trade.
It was contended that this user was "for a purpose" which brought the car within a class to which higher rate of duty under para 5 of Sch.
11 of Finance Act, 1920 became chargeable.
The court accepted the contention and held that the user was for a purpose which brought the car Within para 5 Sch.
II of the said Act and the appellant was rightly convicted.
It was not in dispute that the car was used by the appellant only occasionally for conveyance of goods in connection with his trade.
Negativing the contention that the car was not chargeable to higher duty as it was not adapted.
forcarriage of goods, Avory, J., observed that "the section referred to cases where the vehicle, while the licence is in force, had been used in an altered condition or in a manner or for a purpose which brings it within, or which if it was used solely in that condition or in that manner or for that purpose would bring it within, a class or description of vehicle to which a higher rate of ,duty is applicable." He added that to construe that section, one has only to see what was the purpose for which the car was being used which would bring it within the class to which a higher rate of (1) [1932]2 K.B. 413.
677 duty was applicable.
The purpose which brought it within para 5, as distinguished from para 6 of Sch.
11, was the purpose of conveyance of goods.
At palge 421 of the Report it was further observed, "twhere a licence had been taken out and the vehicle was at any time, while that licence was in force, used, (a) in an altered condition, (b) in a manner, or (c) for a purpose, which brings it within or which if it was used solely in that condition or in that manner or for that purpose could bring it within a class or description of vehicle to which a higher rate of duty is applicable, then duty at the higher rate becomes chargeable.
" It is thus clear that what brought the motor vehicle under para 5, Sch.
II was the purpose for which it was used.
Similarly in Public Prosecutor vs Captain R. Rajagopalan(1) the High Court of Madras held that though rule 30(a) of the Madras Motor Vehicles Rules was intended to apply to motor vehicles used for the express purpose of letting for hire, if a motor vehicle was used even once for such a purpose, then, on that one occasion it was nonetheless let for hire.
Hence if a person undertakes to convey goods for reward in his private vehicle on one occasion without the necessary licence he would be regarded as having let his vehicle for hire and would commit an offence under that rule.
It was contended in that case that the Legislature did not intend to compel an owner of a private vehicle, who ordinarily uses his vehicle for his own purposes, to take out a licence merely because on one occasion he conveyed goods for hire in his private lorry.
That contention was negatived on the ground that a motor vehicle even if used once for conveying goods for reward would nonetheless be regarded on that occasion as one let out for hire.
In Re. Manager, Indian Express(2) a motor car owned by the petitioner was twice used for taking bundles of newspapers from the office of the Indian Express to the Railway Station.
It was held that when the car was used for taking the said bundles, it came within the definition of a "goods vehicle" as defined by section 2 (8) and, therefore, permit under section 42 (1) was necessary and as the owner had no permit thereunder, he was guilty of an offence punishable under section 123.
The combined effect of section 42(1) and the definitions of a "motor vehicle", a "public service vehicle" and a 'transport vehicle" is that if a motor vehicle is used as a transport vehicle, the owner who so uses it or permits it to be so used is required to obtain the necessary permit.
It is the use of the motor vehicle for carrying passengers for hire or reward which determines the application of section 42(1).
Therefore, whenever it is so used without the permit, there is an infringement of the subsection.
If the construction of that subsection adapted by the High Court of Mysore were correct, it would mean that whereas an owner of a transport vehicle is required to have the permit, the owner of a motor vehicle not constructed or (1) A.LR.
(2) A.I.R. 1945 Mad.
678 adapted as a transport vehicle can carry with impunity passengers for hire or reward without any permit therefor.
Section 42(1) has been enacted for the purpose of controlling vehicles carrying passengers, the object of such control being obviously to ensure safety of passengers.
The construction accepted by the Mysore High Court would defeat the object for which the Legislature provided such control in the interest of and for the safety of passengers.
The view taken by the Mysore High Court with respect is not correct and the view taken by the High Court of Madras is not only correct but is in consonance with the purpose and object of section 42(i).
The appeal is, therefore, allowed.
The order of acquittal passed by the trial Magistrate and confirmed by the High Court is set aside and the Magistrate is directed to proceed with the case on merits in accordance with law and in the light of the observations made in this judgment.
V.P.S. Appeal allowed.
[/INST]The appellant firm was appointed sole selling agent of a sugar manufacturing company and deposited Rs. 50,000 as security for due performance of the contract; this amount was to carry interest at 6 per cent per annum.
There was no restriction on the use of the said deposit by the, company.
According to cl.
(9) of the agreement the security and interest were to be refunded at the termination of the agency; in default of such payment the appellant firm was entitled to a commission as if agency had not terminated.
The clause further said that "as long as security with interest is not refunded and commission due is not paid this agreement will not be terminated.
" The company was ordered to be wound up before the period of agency came to an end.
Consequent on the winding up the appellant made an application praying for refund of its security deposit along with interest.
It was contended that as the company held the amount of deposit as a trustee the appellant was entitled to priority among the creditors.
On behalf of the liquidators it was denied that the amount deposited was in the nature of a trust entitled to preference over other debts.
The company judge held that he amount was an ordinary debt.
The Division Bench of the High Court also decided against the appellant.
In appeal by special leave to this ' Court.
HELD:The deposit did not amount to a trust.
The question whether the security deposit in a particular case can be said to be impressed with a trust will have to be decided on the basis of the terms of the agreement and the facts and circumstances of each case, without any leaning one way or the other on the fact that the money was given as a., security deposit.
[434 C] If a trust can clearly be spelled out from the terms of the agreement that ends the matter.
But if the trust cannot be spelled out clearly the fact that there was no segregation provided for, and the fact that interest was paid, would go a long way to show that the deposit was not impressed ' with the character of a trust particularly when the person with whom the deposit was made could mix it with his own money and could use it for himself.
In such a case the inference would be that the relationship between the parties was that of a debtor and creditor.
Further besides these circumstances, if there is any other term which suggests one kind of ' f relationship rather than the other that will also have to be taken into account.
[436 B C] In the present case the company was free to use the money for its own purpose and had to pay interest on it.
Further, in cl.
(9) of the agreement the security was put on a par with the commission which was nothing but a debt.
The courts below had therefore rightly treated the security deposit as an ordinary debt.
[436 F] Peter Donald Macpherson vs Dugald Mckechine and Ors.
XXVIII In the matter of Travancore National and 430 Quilon Bank Limited, Official Liquidators and Another Applicants, , In re Manekji Petit Manufacturing Company Ltd. A.I.R. 1932 Bom.
31 1, Maheshwari Brothers vs Official Liquidators, I.L.R. [1942] All. 242, Keshetra Mohan Das vs D. C. Basu, I.L.R. Gee vs Liddell, ; , Knatchbull vs Hallett, (1879 80) XIII Ch.
D. 696.
In re Hallett & Co., and Frank M.Mckey vs Maurcie Paradise, ; , referred to.
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<s>[INST] Summarize the judgement251&558of 1987.
(Under Article 32 of the Constitution of India) R.K. Jain and R.P. Gupta for the Petitioners.
Kapil Sibal, R.B. Misra, B.B. Sawhney, R.K. Mehta (N.P.) and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
The petitioners in Writ Petition No. 25 1 of 1987 are Dairy Mates whereas, those in Writ Petition No. 558 of 1987 are Junior Plant Operatives and Semi Skilled Opera tives, all working with the Delhi Milk Scheme.
The first petition is on behalf of about one thousand workers, where as, the second petition is on behalf of about 280 of work ers.
The grievance of the Dairy Mates is that although they perform the duties and functions of semi skilled work ers, they have been wrongly classified as un skilled workers and paid salary as such, as recommended by the 4th Pay Commission namely, Rs.750 940 instead of Rs.800 1 150 which is the salary recommended to the semiskilled workers.
The grievance of the Junior Plant Operatives and Semi Skilled Operatives is that they are actually ' doing the work of skilled workers, but are classified similarly as unskilled workers and paid salary as such.
Both, further, have a grievance that their counterparts in other departments, particularly in Railways, have been properly classified and are paid salary accordingly.
The petitions were resisted by the respondent Union of India by filing counter affidavits denying the conten tions of the petitioners that their work was of a semi skilled or skilled character as alleged.
In view of the disputed questions relating to the nature and functions of the workmen involved, this Court by its order of July 29, 1988 referred the matter to the Central Govt.
Industrial Tribunal cumLabour Court, New Delhi to report to the Court on what would be the appropriate pay scales admissible to the concerned workers, after looking into the record and giving an opportunity to the parties to produce before it such further material as they may desire to do.
Pursuant to the order, the Tribunal submitted its report dated October 325 28, 1988.
It appears from the report that the Tribunal had given opportunities to both the parties to make additional submissions, if any, and to file further material which they wished to do.
Pursuant to the opportunity given, the workers in both the petitions produced additional material and evidence.
The respondent Union of India, however, did not produce any further material or evidence.
On the basis of the material which was already on record, and the further material produced before it, the Tribunal made its report.
The relevant portions of the report may be reproduced here under: 3.
"There are 4 categories of workmen in the DMS viz. Dairy Mates, (DM), Junior Plant Operatives (JPO), Semi Skilled Operatives (SSO) and Skilled Operatives (SO).
The deploy ment registers of the various units read with the evidence of Shri Lajpat Rai Saxena Dairy Supervisor, conclusively prove that the var ious categories of workmen are performing similar duties and their positions are inter changeable with the result that there is no clear demarcation as to what function is to be performed by which category of workmen.
Shri Lajpat Rai Saxena has clearly stated that the nature of duties and the degree or skill of S.O., S.S.O., and J.P.Os and D.Ms is almost same and that sometimes the work done by S.S.Os is performed by S.O. and J.P.Os subject to the availability of the category of work men.
To a question by this Tribunal he replied that if an S.O. is available he will be posted as an S.O. only but when no S.O. is available, then S.S.O. is put in his place and sometimes J.P.Os and Dairy Mates may be put to work in his place.
He further stated that generally there is a shortage of S.Os and then they have to put other categories of workmen in their places.
The position is fully borne out by the various deployment registers . . " 4." . . .
The position of deployment of the various categories of workmen clearly goes to show that their duties are inter changeable without any consideration for their grades/designations.
The position obtaining on the ground clearly repells the contentions of the respondents contained in affidavit of Shri K.G. Krishnamurty that the functions of the various categories of workmen are distinct and separate.
The respondents have not been able to produce any document in support of their contention to show that the duties of the various categories of workmen as enumerated in the affidavit of Shri K.G. Krishnamurty 326 were even published or actually followed.
On the other hand, Shri Lajpat Rai Saxena has stated that since the time he joined service in the year 1972 he had not come across any roster of duties for the different categories of workers such as S.O., SSO, JPOs and Mates and no such roster had been issued after 1972.
He had heard that there was a roster of duties issued prior to his joining of service but he had not seen any such roster.
It would thus appear that if there was any such roster prior to 1972 it got into disuse and was never enforced." 5. "The nature of functions performed by various workmen shows that they require a good degree of skill.
In other words, the functions can be performed only by skilled and semi skilled workers and not by unskilled workers.
Shri Lajpat Rai Saxena has stated that there are 5 milk pasteurisers and 2 cream pasteuris ers in the plant unit of Process Section.
There are also two chillers in R.S.M. There are 13 machines in the product section.
All these machines can be operated only by skilled workers.
He further stated that the bottle filling plant is automatic and the entire working is also automatic.
They have got a separate pest control section for cleaning and sweeping.
Sweepers of Pest Control Section are not used for cleaning machines which is done only by the SO, SSOs, JPOs and Dairy Mates.
This further goes to show that even the clean ing of machines requires skill and the job cannot be performed by unskilled workers.
Even the Management of DMS recognises that the duties performed by the mates and junior plant operatives who have been clubbed with the unskilled category of peons, chowkidars etc., are much more onerous in nature and they deserve a better deal (see the letter dated 4 9 86 addressed by the Chairman D.M.S. to the Joint Secretary Ministry of Agriculture).
The first petitioners have placed on record a photo copy of the identity card issued to the mates (page 110 Vol. 1) which shows that the D. Mates were being treated as Technical Personnel for the purpose of issue of identity cards.
The job cards annexures 1 to 6 (Vol. II) further go to show that the mates have been performing skilled/semi skilled duties such as repairing of Driver seats vulcanising of punctures, other repairs of vehicles and servicing.
All these jobs could not have been done by unskilled workers.
Under the circum stances, I have no hesitation in holding that the 327 mates and junior plant operatives have 'been unfairly treated by the 4th Pay Commission by giving them lowest pay scale of unskilled category of workmen like peons, sweepers, chowkidars etc.
This category of workmen difinitely deserves to be given a higher grade than the lowest meant for unskilled category of workmen.
While it may be conceded that due to the diffuse nature of duties, the Dairy Mates and Junior Plant Operatives of DMS cannot be compared with the Gangmates in the Railways, yet the case of the Dairy Mates and Junior Plant Operatives of the DMS has intrin sic merit.
No doubt the workmen categorised as semi skilled (SSOs) at present are carrying out the functions of Skilled Operatives (SOs) frequently, yet, so are the Mates and JPOs.
However, all the workmen cannot be given the grade of SOs because the considerations of career planning and promotions etc.
have to be kept in view.
Already it is being represented that the various categories of workmen are stagnating in their respective grades for the last 20 25 years.
The same complaint will arise afterwards if all the workmen are given the grades of SO at the same time.
It also militates against the principles of sound administration because there will be double jumping of grades in some category of workmen.
It will also not be desirable to create any fresh scales of pay as it would run counter to the recommendations of the pay commission which has reduced the number of pay scales prevailing previously.
" 6. "Taking into consideration all the facts and circumstances, it is recommended that the Mates and JPOs may be given the pay scale of Rs.800 1150 and semi skilled operatives may be given the scale of Rs.825 1200.
The grades as provided by the 4th Pay Commission and those now recommended by this Tribunal will compare as under: S1.
No. Category of workmen Pay Scale Pay Scale recommended by recommended 4th Pay by this Commission Tribunal 1.
Skilled Operatives (SO) 950 1150 950 1400 2.
Semi Skilled Operatives 800 1150 825 1200 (SSO) 3.
Mates/JPOs 750 940 800 1150.
" 328 5.
While the workmen accepted the report, arguments were advanced on behalf of the respondent mainly criticising the report with regard to the pay scales recommended to the Mates deployed in Transport (Distribution Section).
It was contended that the Mates working in the said section consti tuted 60% of the total number of Mates deployed in the different units of the Scheme, and their work merely con sisted of loading and unloading of the crates.
That work by no stretch of imagination could be described as other than unskilled.
It was, therefore, wrong to give them a scale different from that admissible to the unskilled workers.
This contention ignores the admitted fact that Mates from one Unit are transferable to another at any time, and when so transferred they do the work of the Units to which they are transferred without any additional remuneration.
What is more as is stated in the report, there is no roster of duties and functions of the Mates in any Unit, and all Mates have to do the work of the Units to which they are assigned on any particular day.
The mates have thus to be versatile with the work in all the Units, both unskilled and semi skilled.
This is certainly not the case with the Sweepers, Chowkidars and Malis who are categorised as unskilled work ers.
This being the case, we do not see any merit in the contention that the Mates should be treated on par with the unskilled workers.
There was no contention raised on the report with regard to the mates working in the other Units or with regard to the Junior Plant Operatives and Semi Skilled Operatives.
In the circumstances, we accept the report and direct the respondent to pay to the workers the pay scales recom mended in the report which are as follows: A. Mates and Junior Plant Operatives Rs.800 1 150 B. Semi Skilled Operatives Rs.825 1200 8.
The above pay scales should come into effect from 1st January, 1990.
It is made clear that none of the workers i.e. Mates, Junior Plant Operatives and Semi Skilled Operatives will refuse to do any part of the work which is assigned to them at present merely because they are hereby given the above pay scales.
Writ Petitions are allowed accordingly.
The parties to bear their own costs.
R.N.J. Petitions allowed.
[/INST]The appellant company was maintaining a large eucalyptus plantation for captive consumption in its production of Rayon Grade Pulp.
The State of Kerala claimed that as a consequence of the Kerala Private Forests (Vesting and Assignment) Act, 1971, the eucalyptus plantation being a 'private forest ' stood transferred to and vested in it.
The company resisted the State 's claim on the ground that the term 'private forest ' excludes the eucalyptus plantation.
The High Court decided the question in favour of the State and against the appellant.
402 In the appeal to this Court, it was contended on behalf of the appellant that since the eucalyptus plantation was covered by the expression 'any other agricultural crop ' in section 2(47)(iv) of the Kerala Land Reforms Act, 1963 the similar expression used in section 2(f)(1)(i)(C) of the Vesting Act, 1971 must also carry the same meaning.
Dismissing the appeal, this Court.
HELD: 1.
Judicial interpretation given to the words defined in one statute does not afford a guide to construc tion of the same words in another statute unless the stat utes are pari materia legislations.
[408G] 1.1 The definition of 'private forest ' in the Kerala Land Reforms Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast difference between the two.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Pri vate Forests Act, 1949 applied immediately before the ap pointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the Madras Preservation of Private Forests Act ap plied, and exempts there from lands described under sub clauses (A) to (D).
This significant reference to this Act in the definition of 'private forest ' in the Vesting Act makes all the difference in the case.
The scheme of this Act appears to be that if the land is shown to be private forest on the date on which the Act came into force, it would continue to be a forest, even if there was subsequent re plantation.
[408H; 409A D] 1.2 The lands involved in this appeal were all forests as defined in the Madras Preservation of Private Forests Act and continued to be so when the Vesting Act came into force.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the Kerala Land Reforms Act to the Vesting Act.
[409E F] State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs
K.C. Moosa Haji, A.I.R. referred to.
Malankara Rubber and Produce Co. vs State of Kerala & Ors.
, ; , Held inapplicable.
403 State of Kerala vs Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd.; , , referred to.
The term 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal, trees, casuarina plantations, tendu leaves, coconuts etc.
Of course there must be present all throughout the basic idea that there must be cultivation of the land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
[407D F] Commissioner of 1.
T. West Bengal vs Raja Benoy Kumar Sahas Roy, ; , referred to.
2.1 Under Section 3(1), private forests vest in Govern ment.
Subsection (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation.
Cultivation for this purpose 'includes cultivation of trees or plants of any species '.
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under section 3 sub section (2).
The legislature has thus excluded from vesting under section 3 sub section (2) the trees of every variety.
But while pro viding for exclusion under sub clause (C) of section 2(f)(1)(i), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
Sub clause (C) refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It next refers to lands which are principally cultivated with any other agri cultural crop.
If the legislature had intended to ' use the term 'agricultural crop ' in a wide sense so as to take within its fold all species of trees fruit bearing or other wise, it would be unnecessary to have the first limb denot ing only the cashew or other fruit bearing trees.
Therefore, there is no indication that the words 'any other agricultur al crop ' in sub clause (C) are quite wide enough to compre hend all species of trees including eucalyptus plantations.
These words exclude only fruit bearing trees.
[410H; 41 1A D] State of Kerala vs Amalgamated Malabar Estates, A.I.R. 1980 404 Ker. 137; State of Kerala vs Malayalam Plantation Ltd., A.I.R. 1981 Ker. 1 and State of Kerala vs
K.C. Moosa Haji & Ors., A.I.R. , approved.
In seeking legislative intention, judges not only listen to the voice of the legislature but also listen atten tively to what the legislature does not say.
[410G H]
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<s>[INST] Summarize the judgements 1, 7, 8, 10, 53 and 76 of 1963.
Petitions under Art 32 of the Constitution of India for the enforcement of Fundamental Rights.
R.V. section Mani and K. R. Shama, for the petitioner (in W.P. Nos. 1 and 76 of 1963).
R. V. section Mani and T. R. Y. Sastri, for the petitioner (in W.P. Nos. 7, 8, 10 and 53).
A.V. Ranganadham Chetty and A. Y. Rangam, for the respondent (in the petitions).
I.N. Shroff, for the interveners Nos. 1 and 5 (in all the petitions).
M. C. Setalvad, N. section Bindra and R. H. Dhebar, for inter vener No. 2 (in W.P. No. 1 of 1.963).
C. P. Lal, for intervener No. 3 (in W.P. No. 1 of 1963).
R. H. Dhebar, for intervener No. 4 (in W.P. No. 1 of 1963).
section V. Gupte, Additional Solicitor General, N. section Bindra and R. H. Dhebar, for intervener No. 6 (in W.P. No. 1 of 1963).
83 March 9, 1964.
The Judgment of the Court was delivered by WANCHOO, J.
These six petitions under article 32 of Constitution raise a common question about the constitution ality of the Madras Land Reforms (Fixation of Ceiling on Land Act, No. 58 of 1961 (hereinafter referred to as the Act), which was assented to by the President on April 13, 1962 and came into force on publication in the Fort St. George Gazette on May 2, 1962.
The constitutionality of the Act is attacked on the ground that it violates articles 14, 19 and 31(2) of the Constitution.
It is not necessary to set out in full the attack made on the constitutionality of the Act in these petitions.
It will be enough if we indicate the two main attacks on the constitutionality of the Act under article 14.
The first of these is with respect to section 5 of the Act which lays down the ceiling area.
The second is on section 50 of the Act read with Sch.
III thereof, which provides for compensation.
It is urged that the Act is not protected under article 31 A of the Constitution and is therefore open to attack in case it violates article 14, 19 or 31.
The petitioners in this connection rely on the judgment of this Court in Karimbil Kunhikoman vs State of Kerala(1).
Before we consider the two main attacks on the constitu tionality of the Act we may briefly indicate the scheme of the Act.
Chapter 1 is preliminary, Section 3 thereof provides for various definitions, some of which we shall refer to later.
Chapter 11 deals with fixation of ceiling on land holdings.
Section 5 thereof fixes the ceiling area.
The other sections provide for determining surplus land, and s.18 provides for the acquisition of surplus land which vests in the Government free from all encumbrances.
Chapter III provides for ceiling on future acquisition and restriction on certain transfers.
Chapter IV provides for the constitution and functions of the land board.
Chapter V provides for the constitution and functions of the sugar factory board.
Chapter VI provides for compensation.
Section 50 thereof read with Sch.
III lays down the mode for determining compensation for the land acquired by the Government and other ancillary matters.
Chapter VII provides for survey and settlement of lands in the transferred territory which came to the State of Madras by virtue of the States Reorganisation Act of 1956.
Chapter VIII provides for cultivating tenants ' ceiling area.
Chapter IX provides for exemption of certain lands from the application of the Act.
Chapter X provides for land tribunals and Chapter XI for appeals and revision.
Chapter XII provides for certain penalties and procedure while Chapter XIII provides for disposal of land acquired by the Government under the Act.
Chapter XIV deals with miscellaneous provisions, including s.110, which provides for the framing of rules (1) [1962] Suppl.
1 S.C.R. 829.
84 The main purpose of the Act is to provide for a ceiling on land holdings, for determining surplus land which would be acquired by Government and for payment of compensation therefor.
The Act is applicable to agricultural land as defined in section 3(22) and is mainly concerned with persons holding lands in ryotwari settlement or in any other way subject to payment of revenue direct to the Government.
It is not in dispute that the Act is not protected under article 31 A of the Constitution and it is in this background that we shall consider the attack based on article 14 on the two main provisions of the Act relating to ceiling area under section 5 and compensation under section 50 read with Sch.
III of the Act.
It is first necessary to read certain definitions in s 3.
Section 3(14) defines family as follows "family" in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her (i) minor sons and unmarried daughters; and (ii) Minor grandsons and unmarried grand daughters in the male line, whose father and mother are dead.
" It is unnecessary to refer to the explanation of section 3(14), for present purposes.
Section 3 (34) is in these terms: person ' includes any trust, company, family, firm, society or association of individuals, whether incorporated or not.
" Section 3 (45) is as follows: " 'surplus land ' means the land held by a person in excess of the ceiling area and declared to be surplus land under sections 12, 13 or 14.
" Section 5 is in these terms: "5.
(1) (a) Subject to the provisions of Chapter VIII, the ceiling area in the case of every person and, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, the ceiling area in the case of every family consisting of not more than five members, shall be 30 standard acres (b) The ceiling area in the case of every family consisting of more than five members shall, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, be 30 standard acres together with an additional 5 standard acres for every member of the family in excess of five.
(2) For the purposes of this section, all the lands held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be held by the family.
85 (3) (a) In calculating the extent of land held by a member of a family or by an individual person, the share of the member of the family or of the individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanthana family or a Nambudiri Illom shall be taken into account.
(b) In calculating the extent of land held by a family or by an individual person, the share of the family or of the individual person in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company (other than a non agricultural company) shall be taken into account.
Explanation For the purposes of this section (a) the share of a member of a family or of an individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanathana family or a Nambudiri Illom, and (b) the share of a family or of an individual person in the land held by a firm, society or association of individuals (whether incorporated or not), or by a company (other than a non agricultural company), shall be deemed to be the extent of land (i) which, in case such share is held on the date of the commencement of this Act, would have been allotted to such member, person or family had such land been partitioned or divided, as the case may be, on such date; or (ii) which, in case such share is acquired in any manner whatsoever after the date of the commencement of this Act, would be allotted to such member, person or family if a partition or division were to take place on the date of the preparation of the draft statement under sub section (1) of section 10. "(4). . . " It is unnecessary to consider the rest of section 5 for present purposes.
The attack on section 5 (1) is that it is hit by article 14 inasmuch as it denies equality before the law or equal protection of law to persons similarly situate, and reliance is placed in this connection on the decision of this Court in Karimbil Kunhikoman(1).
In that case this Court was considering the Kerala Agrarian Relations Act, 1961 (hereinafter referred to as the 86 [1962] Suppl.
1 S.C.R. 829.
Kerala Act).
The argument is that as in the Kerala Act, so in the present Act, the word "family" has been given an artificial definition which does not conform to any kind of natural families prevalent in the State, namely, Hindu undivided family, Marumakkattayam family, Aliyasanathana family or Nambudiri Illom, and that a double standard has been fixed in section 5(1) in the matter of providing ceiling.
It is therefore urged that the ratio of that decision fully applies to the present Act.
Therefore, section 5(1) should be struck down as violative of article 14 in the same manner as section 58 of the Kerala Act was struck down.
We are of opinion that this contention is correct and the ratio of that case applies with full force to the present case.
It was observed in that case that "where the ceiling is fixed . . by a double standard and over and above that the family has been given an artificial definition which does not correspond with a natural family as known to personal law, there is bound to be discrimination resulting from such a provision".
In the present case also "family" has been given an artificial definition as will immediately be clear on reading.
3(14), which we have set out above.
It is true that this definition of "family" in section 3(14) is not exactly the same as in the Kerala Act.
Even so there can be no doubt that the definition of the word "family" in the present case is equally artificial.
Further in the Kerala Act section 58 fixed a double standard for the purpose of ceiling; in the present case section 5(1)(a) fixes a double standard though there is this distinction that in section 5(1) the same ceiling is fixed in the case of a person as in the case of a family consisting of not more than five members, namely, 30 standard acres while in the Kerala Act, the ceiling fixed for a family of not more than five was double that for an adult unmarried person.
But that in our opinion makes no difference in substance.
The provision of section 5(1) results in discrimination between persons equally circumstanced and is thus violate of article 14 of the Constitution.
This will be clear from a simple example of an undivided Hindu family, which we may give.
Take the case of a joint Hindu family consisting of a father, two major sons and two minor sons, and assume that the mother is dead.
Assume further that this natural family has 300 standard acres of land.
Clearly according to the personal law, if there is a division in the family, the father and each of the four sons will get 60 standard acres per head.
Now apply section 5(1) to this family.
The two major sons being not members of the family because of the artificial definition given to "family" in section 3(14) of the Act will be entitled to 30 standard acres each as individuals and the rest of their holdings i.e. 30 standard acres in the case of each will be Surplus land.
But the father and the two minor sons being an artificial family as defined in section 3(14) will be entitled to 30 87 standard acres between them and will thus lose 150 standard acres, which will become surplus land.
This shows, clearly how this double standard in the matter of ceiling read with the artificial definition of "family" will result in complete discrimination between these five members of a natural family.
Under the Hindu law each member would be entitled to onefifth share in the 300 standard acres belonging to the family.
Under the Act however the two major sons will keep 30 standard acres each while the father and the two minor sons together will keep 30 standard acres which work out to 10 standard acres each.
The two major sons will thus lose 30 standard acres each while the father and the two minor sons will lose fifty standard acres each.
No justification has been shown on behalf of the State for such discriminatory treatment resulting in the case of members of a joint Hindu family; nor ;.ire we able to understand why this discrimination which clearly results from the application of section 5 (1) of the Act is not violative of article 14 of the Constitution.
Examples can be multiplied with reference to joint Hindu families which would show that discrimination will result on the application of this provision.
Similarly we are of opinion that discrimination will result in the case of Marumakkattayam family, Aliyasanthana family and a Nambudiri Illom, particularly in the case of the former two where the husband and wife do not belong to the same family.
We are clearly of opinion that as in the case of section 58 of the Kerala Act so in the case of section 5 (1) of the Act discrimination is writ large on the consequences that follow from section 5(1).
We therefore hold that section 5(1) is violative of the fundamental right enshrined in article 14 of the Constitution.
As the section is the basis of Chapter 11 of the Act, the whole Chapter must fall along with it.
Next we come to the provisions as to compensation contained in section 50 read with Sch.
III of the Act.
Here again we are of opinion that the decision of this Court in Karimbil Kunhikoman 's(1) case fully applies to the scheme of compensation provided in the Act which is as discriminatory as was the scheme in the Kerala Act.
Learned counsel for the respondent however contends that Sch., III does not provide for any cut in the purchase price as was the case in the Kerala Act, and therefore the provisions in the Act are not discriminatory.
If we look at the substance of the matter, however, we find that there is really no difference between the provisions for compensation in the Kerala Act and the provisions in respect thereof in the Act, though the provisions in the Act are differently worded.
What was done in the Kerala Act was to arrive at the figure of compensation on certain principles, and a cut was then imposed on the figure thus arrived at and this cut pro gressively increased by slabs of Rs. 15,000.
In the present [1962] Suppl.
1 S.C.R. 829.
88 case , a converse method has been adopted and the provision is that first the net annual income is arrived at and thereafter compensation is provided for slabs of Rs. 5,000 each of net income.
For the first slab of Rs. 5,000, the compensation is 12 times the net annual income, for the second slab of Rs. 5,000 it is II times, for the third slab of Rs. 5,000 it is ten times and thereafter it is nine times.
Let us now work out this slab system.
Take four cases where the net annual income is respectively Rs. 5,000, Rs.10,000, Rs. 15,000 and Rs. 20,000.
The firstperson whose net annual income is Rs. 5,000 will get Rs.60,000 as compensation, the second person whose net annualincome is Rs. 10,000 will et Rs. 1,15,000, the third personwith a net annual income of Rs. 15,000 will get Rs. 165,000 and the person with a net annual income of Rs. 20,000 will et Rs. 2,10,000.
If the same multiplier had been applied as in the case of the first slab of Rs. 5,000 to the other three slabs also, these persons would have got compensation of Rs. 1,20,000, Rs. 1,80,000 and Rs. 2,40,000.
This will show that in effect there is a cut of about 4 per cent on the total compensation which corresponds to the purchase price in the Kerala Act in the case of a person with a net annual income of Rs. 10,000, of about 8 per cent in the case of a person with a net annual income of Rs. 15,000 and about 12 per cent in the case of a person with a net annual income of Rs. 20,000.
Though the manner of arriving at the total com pensation is ostensibly different from that provided in the Kerala Act, its effect is the same, namely, as the total net income goes up after the first slab of Rs. 5,000 there is a progressive cut in the total compensation just as was the case in the Kerala Act.
The argument that the cut is justified on the same basis as higher rates of income tax on higher slabs of income has already been rejected by this Court in Karimbil Kunhikoman 's case(1).
Therefore, for the reasons given in that case, we are of opinion that the provisions contained in section 50 read with Sch.
III of the Act with respect to compensation are discriminatory and violate article 14 of the Constitution.
Sections 5 and 50 are the pivotal provisions of the Act, and if they fall, then we are of opinion that the whole Act must be struck down as unconstitutional.
The working of the entire Act depends on section 5 which provides for ceiling and section 50 which provides for compensation.
If these sections are unconstitutional, as we hold they are, the whole Act must fall.
We therefore allow the petitions and strike down the Act as unconstitutional.
The petitioners will get their costs from the State of Madras one set of hearing fee.
Petitions allowed.
(1) [1962] Suppl.
1 S.C.R. 829.
[/INST]The father of the appellant owned considerable agricultural property in Pakistan and he with the members of his family moved over to India on partition.
The appellant 's father had some unsatisfied claim for allotment and on December 29.
1955 he was allotted some plots in Urban area within a certain municipality.
The appellant 's father died in 1952 and the allotment made was actually to the appellant in lieu of the claim of his father.
On the allotment being made, a sanad was issued to the appellant by the Managing Officer.
When the appellant tried to take possession of these lands, disputes were raised by respondents Nos. 4 and 5.
These respondents moved the Assistant Settlement Commissioner for cancellation of the allotment on the ground that these disputed plots were within an "urban area" within the meaning of r. 2(h) of the Displaced Persons, Compensation and Rehabilitation Rules, 1955 and, therefore, the allotment to the appellant was contrary to law.
The Assistant Settlement Commissioner accepted the contention of the res pondents and allowed the appeal and cancelled the allotment.
The appellant then applied to the Chief Settlement Com missioner in revision.
He rejected the petition.
Then the appellant moved a petition under articles 226 and 227 of the Constitution before the High Court.
This petition was also dismissed.
the High Court granted certificate of fitness under article 133 of the Constitution and hence the appeal.
Held:(i) Where an order making an allotment was set aside by the Assistant Commissioner or Settlement Commissioner the title which was obtained on the basis of the continuance of that sanad or order also fell with it.
Shri Mithoo Shahani vs Union of India, ; , relied on.
(ii)The contention of the appellant that r. 2(h) of the Displaced Persons Compensation and Rehabilitation Rules, 1955, was unconstitutional as contravening article 14 of the Constitution must fail.
This contention is based on the basis of the proviso to Rule 2(h).
Rule 2(h) was framed under section 40 of the Act.
This rule along with other rules came into force on May 21, 1955.
The allotment was made to the appellant on December 29, 1955 and the Sanad was issued two days later.
In other words the allotment in favour of the appellant was after the rule came into force and was not one "already made" as stated in the proviso to r. 2(h).
Therefore, if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and the proviso, had no application.
193 The discrimination is said to consist in the rule having drawn a dividing line at the date when it came into force, for determining whether the allotment was valid or not.
Such a contention is patently self contradictory.
Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alternation in the law.
It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which cannot be accepted.
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<s>[INST] Summarize the judgementivil Appeal No. 1043 of 1990.
From the Judgment and Order dated 10.8.1989 of the Bombay High Court in C.R.A. NO.
521 of 1985.
V.A. Bobde, S.D. Mudaliar.
Mrs. Ranjana Bobde and C.K. Ratnaparkhi for the Appellants.
V.P. Salve, and Ms. Bina Gupta for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
Special Leave granted.
The short question involved is the maintainability of the suit which gives rise to this appeal.
The appellants contend mat the Suit is not maintainable even on the plaint averments.
The Trial Court held the suit to be maintainable and the High Court has dismissed the appellants ' revision affirming that view.
Hence this appeal by special leave.
The appellants are the legal representatives of Motilal who purchased the disputed property, namely, 'Goyal Talkies ' at Kamptee in the year 1946.
The said Motilal entered into a partnership on 31.12.1953 with respondent Ratanlal repre senting the joint family firm "M,s.
Ratanlal Damdoolal and Bros." for the purpose of running the cinema business in 'Goyal Talkies '.
Some disputes having arisen between the parties, the said Motilal together with his wife and chil dren filed Civil Suit No. 19A of 1955 on 4.8.1955 in the Court of Civil Judge, Class I, Nagput, against respondent Ratanlal as defendant No. 1, the firm "M/s. Damdoolal and Bros." as defendant No. 2 and one Puranmal as defendant No. 3.
The suit was for the dissolution of partnership, rendi tion of accounts and ancillary reliefs.
On discovery of the misdescription of defendant No. 2 firm, an application was made by the plaintiff for correction of that misdescription.
The misdescription being obvious, the Trial Court allowed the plaintiff 's application on 19.8.1955 permitting defend ant No. 2 firm to be correctly described as "M/s. Ratanlal Damdoolal and Bros." instead of "M/s. Damdoolal and Bros." It appears that the correction even though permitted was 175 not actually incorporated in the plaint.
However, the par ties were not misled in any manner by the misdescription of defendant No. 2 made initially in the plaint which is evi dent from the fact that defendant No. I Ratanlal who filed the separate written statement in the suit on behalf of defendant No. 2 also correctly described defendant No. 2 as "Ratanlal Damdoolal and Bros." This suit was compromised between the parties and a compromise petition dated February 20, 1956 signed by the plaintiff, Motilal, Ratanlal for himself as defendant No. 1 and also on behalf of defendant No. 2 firm, and the counsel for defendant Nos. 1 and 2 was filed in the Trial Court.
This compromise was recorded by the Court on 5.3.1956 after the statements of defendant No.1 Ratanlal and the counsel for defendant No. 2 firm were recorded accepting the compromise.
One of the agreed terms was that defendant No. 3 Puranmal should be discharged from the suit apparently because he had no interest in the suit.
According to the terms of the compromise, plaintiff was to pay to defendant Nos. 1 and 2 a sum of Rs.15,700 in full satisfaction of their claim subject to final accounting, which included the sum of Rs.2,600 paid to Puranmal by defendant Nos. 1 and 2.
It was also agreed that on payment of this amount by the plaintiff to defendant Nos. 1 and 2 within the specified period, the partnership would be deemed to be dissolved and that defendant Nos. 1 and 2 gave up all their rights including the interest acquired by them from defendant No. 3, Puranmal under the sale deed executed in their favour.
It was agreed that the plaintiff would be entitled to possession of the talkies immediately on payment of the amount due to defendant Nos. 1 and 2.
The Receiver Shri K.S. Mishra Advocate, was required to act in terms of the compromise between the parties which required confirma tion of accounts from the accountbooks of the partnership and thereafter distribution of the surplus between the plaintiff and defendant Nos. 1 and 2.
The plaintiff paid this sum of Rs.15,700 on 5.3.1956 well within the specified period; the receiver rendered accounts on 19.3.1956 and an application for correction was made on 3.4.1956.
It may be mentioned that full compliance having been made by the plaintiff on 5.3.
1956, the receiver gave possession of the Talkies to the plaintiff on 5.3.
1956 according to the compromise since the Only thing remaining to be done thereafter was to refund to the plaintiff the amount of Rs.5,470 paid in excess by plaintiff to defendant Nos. 1 and 2.
Accordingly, on 16.11.1959 the Court passed the final decree in the suit stating that the partnership stood dissolved with effect from 27.4.1959 and the defendant Nos. 1 and 2 were directed to refund to the plaintiff the amount of Rs.5,470 which was the excess amount paid by the plaintiff to them.
176 Notwithstanding the above facts, defendant Nos. 1 and 2 filed an appeal against the final decree dated 16.11.1959 in the Court of the Extra Assistant Judge, Nagpur which was C.A. No. 413 of 1962 decided on 27.12.
Thereafter, a second appeal No. 293 of 1963 was also filed by these de fendants in the High Court which too was dismissed on 2.12.1972.
The final decree dated 16.11.1959 based on the compromise which was fully satisfied become final inasmuch as the defendants did not challenge the same by a further appeal to this Court.
Thereafter, Civil Suit No. 1699 of 1980 in the Court of Civil Judge, Senior Division, Nagpur, was filed by respond ent Ratanlal against the petitioners who are the legal representatives of the aforesaid Motilal assailing the above consent decree after taking the entire benefit thereunder.
The reliefs claimed in this suit are for a declaration that the aforesaid final decree dated 16.11.
1959 passed on the basis of the order dated 5.3.1956 in Civil Suit No. 19A of 1955 by the Civil Judge, Senior Division, Nagpur, is a nullity; that the partnership under the partnership deed dated 31.12.1953 between the said Ratanlal and Motilal continues to subsist; that Ratanlal is entitled to posses sion of the said Goyal Talkies; and the other ancillary reliefs.
This suit was contested by the petitioners, inter alia on the ground that it was barred by res judicata by the earlier adjudication between the parties and also that it was not maintainable.
It would suffice to say that as a result of the High Court 's direction, the Trial Court framed preliminary issue regarding maintainability of the suit and by its order dated 15.4.1985, it held the suit to be main tainable.
On behalf of the petitioners the suit was claimed to be barred also by virtue of Rule 3A of Order 23, C.P.C. The Trial Court rejected these contentions and held the suit to be maintainable.
The petitioners then preferred a Civil Revision in the High Court which has been dismissed by the Order dated 10.8.1989.
Hence this appeal by special leave.
The contention of Shri V.A. Bobde, learned counsel for the appellant is that the suit is barred by virtue of Rule 3A of Order 23, C.P.C. and even otherwise the plaint aver ments do not disclose any cause of action in order to raise a triable issue.
He also contended that even if Rule 3A inserted in Order 23, C.P.C. by the C.P.C. Amendment Act, 1976 with effect from 1.2.1977 does not apply to the present suit challenging the decree passed prior to the amendment, this suit is barred also in accordance with the unamended provision existing earlier.
In reply, Shri V.P. Salve, learned counsel for the respondent contended that Rule 3A of Order 23, C.P.C. has no application since the decree as sailed in the suit is of a date much prior to insertion of 177 Rule 3A by amendment with effect from 1.2.
He also contended that the question of examining the frame of the suit to determine its maintainability on any other ground does not arise since the petitioners case was based on the bar under Order 23, Rule 3A, C.P.C., which too was an objec tion raised after the filing of the written statement in which the plea of res judicata had been taken.
However, in all fairness Shri Salve made no attempt to contend that the suit as framed raises any triable issue on the basis of the only grounds on which the decree dated 16.11.1959 is alleged to be a nullity.
He urged only two additional grounds, not pleaded in the existing plaint, which were raised unsuccess fully on behalf of the present respondent in the First Appeal and the Second Appeal against the compromise decree to contend that the suit is triable.
He also urged that no specific objection for rejection of the plaint under Order 7 Rule 11 C.P.C. was taken earlier and, therefore, the matter be remanded for a fresh consideration on this basis.
To avoid protracting this litigation any longer, we gave opportunity to learned counsel for the respondent to prepare the case on this point.
Shri Salve then filed an application for amendment of the plaint on the next day in any attempt to plead the additional grounds on which alone he claimed the suit to be triable.
We may first dispose of the application for amendment to the plaint filed by Shri Salve on January 12, 1990 during the course of hearing of the appeal.
We do not find any ground to allow this application which apart from being highly belated, is clearly an after thought for the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue.
Moreover, the proposed amendments in the plaint, as summarised by Shri Salve, are to raise two grounds which are concluded by the earlier adjudication ending with dismissal of Ratanlal 's Second Appeal against the impugned decree.
The first is the consequence of rejection of the plaint under Order 7, Rule 11, C.P.C. in the earlier suit on 26.3.1959 and its revival on payment of court fee by plaintiff, Motilal, in terms of that order itself.
It is sufficient to mention that the High Court 's order dismissing the Second Appeal arising out of that decree considers and rejects this argument and that order has become final between the parties since it was not challenged thereafter.
The second point relates to delivery of possession of the Talkies on 5.3.1956 to plaintiff, Motilal, which is alleged to have been made under a wrong procedure.
The facts narrated above clearly indicate that delivery of possession by the 178 Receiver, Shri K.S. Mishra, Advocate, to plaintiff, Motilal, was in pursuance of the Court 's order dated 5.3.1956 after plaintiff Motilal had already deposited the sum of Rs.15,700 which was really in excess of the amount required to be paid by the plaintiff, Motilal, to.
defendant Nos. 1 and 2 re sulting in subsequent refund of Rs.5,470 to plaintiff and the express compromise between parties which was accepted by Ratanlal in his statement recorded by court on 22.2.
This contention also was rejected in the earlier adjudica tion ending with the High Court 's dismissal of the Second Appeal which has become final.
Moreover, this appeal is not against that decision of the High Court.
There is no ground to allow the belated attempt to amend the plaint for taking these grounds.
The application for amendment is, therefore, rejected.
We do not consider it necessary to decide the applica bility of Rule 3A of Order 23, C.P.C. to the present suit since the matter can be disposed of even otherwise.
The plaint averments specify the grounds on which the decree dated 16.11.
1959 is alleged to be nullity.
The question is: whether any of these grounds raises a triable issue in the suit or in other words does the plaint disclose any cause of action? The specific case of the respondent as clearly mentioned in Para 3 of the impunged order dated 10.8.
1989 of the High Court is as under: "The plaintiff has never claimed that some fraud, coercion or misrepresentation is played.
On the other hand, he says that due to the lapses while deciding the matter, decree passed by the Court below has become a nullity.
It is, therefore, clear that the respondent/plaintiff does not challenge validity of the decree dated 16.11.1959 on the ground of fraud, coercion or misrepresentation but merely on the basis of lapses in deciding the earlier suit which have been specifically mentioned in para 6 of the plaint.
It is, therefore, only on these limited grounds that the question of maintainability of the present suit has to be decided.
We shall, therefore, now refer to the grounds mentioned in para 6 of the plaint which alone are relied on to dis close a cause of action for the suit.
The first ground of nullity averred in para 6 of the plaint is that the decree was passed against a non existent person "M/s.
Damdoolal and Bros." It is not the respondent 's case that "M/s. Dam doolal and Bros." is a legal entity distinct from "M/s. Ratanla Damdoolal and Bros." so that the decree was against another person As earlier stated, in the written statement filed by respondent Ratan 179 lal, the description of defendant No. 2 was correctly given by respondent Ratanlal himself as "M/s. Ratanlal Damdoolal and Bros." and not "M/s. Damdoolal and Bros." Moreover, an order dated 19.8.
1955 was made by the trial court permit ting the correction to be made even though it was not duly incorporated in the plaint thereafter.
It is significant that the first appeal and the second appeal filed against the compromise decree made by the respondent in which the firm as one of the appellants was correctly described as "M/s. Ratanlal Damdoolal and Bros." and not "M/s. Damdoolal and Bros".
The decree was, therefore, against "M/s. RatanIal Damdoolal and Bros." and this is how it was admittedly understood throughout by the respondent himself who repre sented the firm at every stage of the earlier suit till the final decision by the High Court, describing the firm cor rectly as "M/s. Ratanlal Damdoolal and Bros." Obviously this ground is non existent.
The next ground of nullity pleaded is that the decree does not direct discharge of defendant No. 3, Puranmal.
Admittedly, no relief was claimed or granted against defend ant No. 3, Puranmal who was treated by all to be only a formal party.
This ground also is, therefore, non existent.
The next ground is that there is no consideration for aban donment of the interest of Puranmal which renders the corre sponding term void.
Admittedly, the terms of compromise show payment of Rs.2,600 to Puranmal and execution of a sale deed by Puranmal in favour of defendant Nos. 1 and 2 who alone thereafter remained the interested parties.
This is how Shri Salve, learned counsel for the respondent summarised the entire grounds of nullity pleaded in the plaint.
On the admitted facts appearing from the record itself, learned counsel for the respondent, was unable to show that all or any of these averments in the plaint disclose a cause of action giving rise to a triable issue.
In fact, Shri Salve was unable to dispute the inevitable consequence that the plaint was liable to be rejected under Order 7 Rule 11, C.P.C. on these averments.
All that Shri Salve contended was that the Court did not in fact reject the plaint under Order 7 Rule 11, C.P.C. and summons having been issued, the trial must proceed.
In our opinion, it makes no difference that the Trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint and the High Court also overlooked this fatal defect.
Since the plaint suffers from this fatal defect, the mere issuance of summons by the Trial Court does not require that the trial should proceed even when no triable issue is shown to arise.
Permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation.
This cannot be done.
180 It being beyond dispute that the plaint averments do no disclose a cause of action, the plaint is liable to be rejected under Order 7 Rule 11, C.P.C. without going into the applicability of Order 23 Rule 3A, C.P.C. to the present suit.
Having reached this conclusion, it is unnecessary to adopt the technical course of directing the Trial Court to make the consequential order of rejecting the plaint and, instead, we adopt the practical course of making that order in this proceeding itself to avoid any needless delay in conclusion of this futile litigation.
Consequently, the appeal is allowed.
The impugned orders of the Trial Court and the High Court holding the suit to be maintainable are set aside and the plaint is rejected under Order 7 Rule 11, C.P.C. The respondent shall pay the appel lants ' costs throughout.
R.S.S. Appeal allowed.
[/INST]The respondent, a Sub Inspector of police, was convicted under section 376 of I.P.C. for having committed rape on a young newly married girl of 19 or 20 years of age, by the Additional Sessions Judge, Nagpur.
The respondent challenged his conviction in appeal to the High Court.
The High Court set aside the order of conviction and sentence imposed by the trial court and acquitted him.
The State feeling ag grieved came up in appeal by special leave.
While allowing the appeal setting aside the order of the High Court and restoring that of the Trial Court, the Court, HELD: A prosecutrix of a sex offence cannot be put on par with an accomplice.
She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence.
The same degree of care and caution must attache in the evalua tion of her evidence as in the case of any injured complain ant or witness and no more.
[123B C] What is more necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of charge levelled by her.
Having regard to the increase in the number of sex violation cases in the recent past, particu larly cases of molestation and rape in custody, it is proper to remove the notion, if it persists, that the testimony of a woman who is a 116 victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases.
[123C D; 124B C] Ours is a conservative society where it concerns sexual behaviour.
Ours is not a permissive society as in some of the Western and European countries.
Our standard of decency and morality in public life is not the same as in those countries.
It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing.
An Indian Woman is now required to suffer indignities in different forms, from lewd remark to eve teasing, from molestation to rape.
Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the social norms.
The standard of proof to be expected by the Court in such cases must take into account the tact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecu trix is available.
[124D F] Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity.
By our criminal laws vide powers are conferred on police officers investigating cognizable offences.
The infrastructure of our criminal 'investigation system recognises and indeed protects the right of a woman to decent and dignified treatment at the hands of the investigating agency.
[124F H] The purpose and setting, the person and his position, the misuse or abuse of office and the despair of the victim which led to her surrender are all relevant factors which must be present in the mind of the Court while evaluating the conduct evidence of the prosecutrix.
A person in author ity, such as a police officer carries with him the awe of office which is bound to condition the behaviour of his victim [125C D] The Court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped.
She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives including her husband.
Instead of treating her with compassion and understanding as one who is an injured victim of a crime, she is, more often than not, treated as a sinner and shunned.
It must, therefore be realised that a woman who is subjected to sex violence would always be slow and hesitant about disclosing her plight.
The Court must, therefore, evaluate her evidence in the above background.
117 Bharwada Bhognibhai Hirjibhai vs State of Gujarat, ; upon.
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<s>[INST] Summarize the judgementAppeal No. 642 of 1966.
Appeal by special leave from the judgment and order dated October 21, 1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Original No. 11 D of 1960 read with judgment and order dated October 26, 1964 of the said High Court in R.S.A. No. 245 D of 1964.
N. section Bindra and D. D. Sharma, for the appellant.
G. R. Rajagopaul, section P. Nayyar for R. H. Dhebar, for the respondents.
The Judgment of the Court was delivered by Wanchoo, C. J.
The appellant obtained a decree for over Rs. 41,000 against Modern Electric Iron and Brass Works, Delhi, which was the property of two partners, namely, Mohd. Sabar and Noor Mohd. Butt.
in January 1950.
He also obtained an other decree for over Rs. 95.000 against the same two persons and ,one more to which proceeding the Custodian of Evacuee Property (hereinafter referred to as the Custodian) had also been made a party.
Before.
however, the first decree was obtained by the appellant.
Mohd. Sabar and Noor Mohd. Butt had in April 1947 executed two deeds of release with respect to their property in favour of their wives.
Later Mohd. Sabar and Noor Mohd. Butt and their wives migrated to Pakistan and their properties were declared evacuee properties under the , No. 31 of 1950, (hereinafter referred to as the 499 1950 Act).
Under section 10 of the 1950 Act the Custodian had the power to pay any debt due from the evacuee to any person subject to rules framed thereunder.
Further under the Rules a person to whom an evacuee owed money could apply for registration of his claim and the Custodian could register such claim; but mere registration of a claim did not entitle the claimant to payment, and the Custodian could refuse payment for reasons to be recorded.
The claim of the appellant, based on the first decree passed in his favour, was registered by the Custodian.
But in June 1950 the Custodian held that the evacuee property in question in the present case belonged to the wives of the judgment debtors (namely, Mohd. Sabar and Noor Mohd. Butt).
He further directed the appellant to go to the civil court to Yet the release deeds set aside.
On November 28. 1955.
the appellant filed the suit out of which the present appeal has arisen in the court of the subordinate Judge First Class, Delhi, claiming that the release deeds in question were of no effect a being in fraud of the creditors.
He claimed a declaration that the building in suit belonged to Mohd. Sabar and Noor Mohd. Butt and not to their wives and that the release deeds of April 1947 were fictitious and fraudulent and intended to defeat and delay the creditors and were not binding on the appellant.
He also claimed that the Custodian was bound to open the account of the income of the said building in the names of Mohd. Sabar and Noor Mohd. Butt and the proceeds of the said building were bound to be adjusted against the claims of the appellant.
The suit was resisted by the Custodian and the Union of India.
Their case firstly was that the civil court had no jurisdiction to entertain the suit.
Secondly, it was pleaded that the property in dispute which was a building in the city of Delhi had been acquired by the Central Government in pursuance of a notification issued on June 3, 1955, under section 12 of the .
No. 44 of 1954.
(hereinafter referred to as the 1954 Act) and therefore the appellant could not get a declaration to the effect that the proceeds of the suit building should be adjusted against his claim.
The appellant had also pleaded in his plaint that the acquisition of the building by the notification of June 3. 1955 was subject to his rights and that in any case the notification and section 12 of the 1954 Act were ultra vires.
Originally, the trial Court dismissed the suit holding that as the property in suit had been acquired by the Central Government by the notification dated June 3, 1955, the appellant could not claim to proceed against the property or its income.
The appellant went in appeal and the appellate court remanded the suit on the ground that the appellants plea that the notification 500 and section 12 of the 1954 Act were ultra vires had, not been decided.
When the suit went back for re trial on this issue, the appellant applied for transfer under article of the Constitution to the High Court praying that the constitutional issue be first determined by the High Court.
This application was allowed and finally the constitutional question relating to the validity of section 12 of the 1954 Act was considered by a Division Bench of the High Court.
It may be mentioned here that it had been decided by the Subordinate Judge that the civil, court had jurisdiction and that matter is not in dispute before us.
When the matter came to the High Court, the appellant further challenged the amendment made to the 1950 Act by which cl.
(m) of section 10(2) was amended as ultra vires.
Reliance in this connection was placed on article 19 of the Constitution and also on article 14.
The High Court held against the appellant on both points and sent the case back to the trial court for further consideration in the light of its judgment on the constitutional issues that were raised.
The appellant then applied to the High Court for grant of a certificate to appeal to this Court, which was refused.
Thereupon the appellant applied for and obtained special leave from this Court , and that is how the matter has come up before us.
The same two points which were urged before the High Court have been raised before us on behalf of the appellant.
So far as the first point relating to the invalidity of the amendment to section 10(2)(m) is concerned, the matter is now of academic interest in view of the decision of this Court in Raja Bhanupratap Singh vs Assistant Custodian Evacuee Property U.P.(1).
It was held by the Court that "the power to pay the evacuee 's debts was derived both under cls.
(m) and (n) of section 10(2).
Therefore the deletion from cl.
(m) of the Custodian 's power to pay the debts, by the Amending Act of 1956, and the consequential deletion of r. 22 of the Rules framed under the Act.
by which 'a machinery was provided for exercising that power did not affect the power which is conferred by section 10(2) (n) and by section 10(1).
The power to administer, under section 10(1) is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian only to recover and collect the assets of the evacuee; it includes power to discharge his obligations as well, to pay such debts which, in the opinion of the Cus todian, are binding upon the evacuee".
This Court further held that the decree of the civil court was not decisive of the question whether a person making a claim was entitled to the money claimed by him; it was for the Custodian to determine whether he was so entitled.
In view of this decision it is unnecessary to express any opinion as to the invalidity of the amendment of cl.(m) of section 10(2) for the amendment made no difference to the legal (1) ; 501 position as the power of the Custodian to pay the debts of the evacuee still remained, unimpaired.
If be was of opinion that the debts were genuine, he could pay them.
This brings us to the main question that has been argued in the present appeal, namely, that section 12 of the 1954 Act is invalid because it is an infringement of the right to hold property which the appellant has under article 19(1)(f) of the Constitution and is not saved as a reasonable restriction thereon.
The argument is put thus.
The appellant had advanced money to the two evacuees, namely.
Mohd. Sabar and Noor Mohd. Butt.
On the basis of the loan, be had obtained a decree in January 1950.
He had the power to execute that decree against the property of his judgment debtors.
By taking away the property of the judgment debtors, ,After they bad become evacuees and by vesting that property free from all encumbrances in the Central Government under section 12 of the 1954 Act the appellant 's right to proceed against that property had disappeared.
Therefore section 12 of the 1954 Act was violative of article 19(1)(f).
as the appellant 's holding of the decree had been rendered illusory.
Reliance in this connection is placed on four decisions of the Supreme Court of the United States of America.
namely, (i) Von Hoffman vs The City of Quincy(1), (ii) Ranger vs City of New Orleans,(2) (iii) Peirce Coombes vs Milton E. Getz(3) and (iv) W. B. Worthen Co. vs Mrs. W. D. Thomas(4) Before we consider the argument raised before us we may say at once that the four cases on which reliance has been placed on behalf of the appellant are entirely beside the point and of no assistance.
These cases were based on a provision in article 1, section 10 of the American Constitution which inter alia lays down that "no State shall. pass any law impairing the obligation of contracts. .
There is no such provision in our Constitution and.therefore the appellant cannot be beard to say that as section 12 of the 1954 Act impairs the obligation of the contract between him and the two evacuees, the section is bad.
Now let us turn to the argument based on article 19 (1)(f).
It is clear to us that the argument as put forward on behalf of the appellant is fallacious and untenable.
Section 12 of the 1954 Act does not in any manner affect the decree held by the appellant against Mohd. Sabar and Noor Mohd. Butt.
All that it provides is that the property, which upto the time the Act of 1954 was passed, was in law the property of the evacuees, though it was under the administration of the Custodian and vested in him for that purpose under the 1950 Act, would on a notification issued under section 12 of the 1954 Act become the property of the Central (1) 18 L.Ed.
Wallace 403.
(2) (3) ; (4) ; 502 Government and the right, title, interest of the evacuee in such property would thereupon be extinguished and the property shall vest absolutely in the Central Government free from all encumbrances.
At no time did the appellant have any right whatsoever in the property which vested in the Central Government on the issue of the notification under section 12.
It may be that if the owners had not become evacuees and if the property had not been declared evacuee property, the appellant might have proceeded against that property in execution of his decree.
It may also be that he cannot do so now after the said notification under section 12.
But section 12 does not in our opinion interfere with the appellant 's right to acquire, hold and dispose of his property, namely the decrees against Mohd. Sabar and Noor Mohd. Butt.
As the appellant had no interest in the property in suit, the fact that it was acquired by the Central Government by a notification under section 12 of the 1954 Act did not in any way affect the appellant 's right to acquire, hold and dispose of his property.
In the circumstances, the appellant cannot claim protection under article 19(1)(f) at all with respect to the property in suit and it is not necessary to consider whether section 12 could be saved under article 19(5).
We therefore agree with the High Court that the appellant cannot claim that section 12 is ultra vires article 19(1)(f) and therefore the notification made thereunder affects his fundamental right to acquire, hold and dispose of property.
Further the argument that section 12 is bad under article 14 has also no force.
The contention under this head is that the creditors who have decrees against non evacuees can execute their decrees against the properties of non evacuees, but the creditors having decrees against evacuees cannot execute them against their properties after they had vested in the Central Government by a notification under section 12 of the 1954 Act; and this amounts to discrimination under article 14.
But it is well settled that the Constitution does not contemplate equality of all laws or application of all laws equally to every person.
There is a clear classification between evacuee property and non evacuee property.
There is a clear nexus between the object to be achieved by the enactment of the 1954 Act, namely, rehabilitation of evacuees from Pakistan and the provision in section 12 by which the property of evacuees in India is to be utilised for such rehabilitation.
There is therefore.
no infringement of article 14 in the circumstances.
Lastly it is urged on behalf of the appellant on the basis of the decision of this Court in Raja Bhanupratap Singh(1) that the appellant was entitled to ask the Custodian to consider his case under section 10(2) (n) read with section 10(1) of the 1950 Act, and for that purpose it is necessary to decide the main question raised in the suit, namely, that the release deeds of 1947 in favour of the wives (1) ; 503 were of no effect and therefore the property, though evacuee property, was the property of the judgment debtors of the appellant, namely, Mohd. Sabar and Noor Mohd. Butt.
It is also pointed out that the notification of June 3, 1955 was only with respect to immovable property and there was nothing to show that the Central Government had issued a notification under section 14(1)(b) of the 1954 Act relating to cash balance, if any, lying with the Custodian on the date the property was acquired.
It is urged that all that the notification of June 3, 1955 means is that as from that date no action could be taken against the property in suit or its income.
But if there was any money with the Custodian on the date of vesting and if no order had been passed in respect thereof under section 14(1)(b), the appellant would be entitled to ask the Custodian to consider whether he should be paid anything out of the moneys lying with the Custodian provided he could establish that the property was the property of his judgment debtors, namely, Mohd. Sabar and Noor Mohd. Butt and not of their wives.
The declaration that the appellant sought was wide in terms in as much as he claimed that he was entitled to have his claim adjusted against the proceeds of the said building and these proceeds will include any income of a period before the date of vesting under the notification under section 12.
It is urged that as such it is necessary to decide the issue whether the release deeds of April 1947 were fictitious and fraudulent intended to defeat and delay the creditors and therefore the property belonged to Mohd. Sabar and Noor Mohd. Butt.
If that is held in his favour by the civil courts he would be entitled to go to the Custodian and ask him to pass an order in his favour under section 10(2)(n) read with section 10(1) and pay him out of the moneys lying with him on the date the property vested in the Central Government under the notification under section 12.
We are.
of opinion that there is force in this contention.
Though the appellant cannot claim to proceed against the property in suit or its income after the date on which it vested in the Central Government by virtue of the notification under section 12, he can ask the Custodian to pay him out of the moneys lying with him on the date of such vesting if he can satisfy him in the manner provided in section 10(2)(n) read with section 10(1) of the 1950 Act.
We therefore direct that when the case goes back to the trial court as ordered by the High Court, the trial court will decide the issue whether the deeds of release of April, 1947 are fictitious and fraudulent intended to defeat and delay the creditors and not binding on the appellant.
If the trial court decides in favour of the appellant it will then be open to him to approach the Custodian under section 10(2)(n) read with section 10(1) for such orders as the Custodian thinks fit to pass with respect to moneys, if any, lying with him on the date of vesting.
It may be mentioned that learned counsel for the appellant submitted that this property in fact 504 vested in the Central Government by some notification in 1958 and not by the notification dated June 3, 1955, as mentioned in the plaint.
On the other side it has been submitted that some orders have been passed by the Central Government under section 14 (1)(b).
These are matters which may require to be gone into by the trial court and for that purpose it may be necessary to amend the plaint and the written statement, and this we permit.
We therefore dismiss the appeal subject to the observations made above.
In the circumstances we order parties to bear their ,own costs of this Court as also of the High Court.
Costs of other courts will abide the final result.
V.P.S. Appeal dismissed.
[/INST]The appellant, the Swatantra party candidate, was declared elected to the Lok Sabha as against the Congress party candidate.
On April 10, 1967, the first respondent, an elector in the constituency filed an election petition.
In the petition he charged the appellant with corrupt practice under section 123(2) proviso (a) (ii) of the Representation of the People Act, 1951.
The allegation was that one: S.M., with the consent of the appellant or his election agents, told the electors in speeches that if they voted for the Congress candidate, they would commit the sin of cow Slaughter and would become objects of divine displeasure.
On September 25, 1967 the first respondent 'obtained 'an order giving him leave ,o amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya.
On February 29, 1968 the trial commenced and one of the witnesses said that he heard S.M. giving a speech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contravention of the mandate would be visited with spiritual censure.
On an objection being raised by the appellant 's counsel, the first respondent agreed that the statement of the witness should not be treated as part of the evidence.
The trial proceeded, 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of S.M. as exhibits and adopted a definite line of cross examination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya.
However on March 5, 1968, the first respondent 'applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Court allowed the amendment.
The, High Court set aside the 'appellants election on its finding that the corrupt practice in relation to the command of Sri Shankaracharya was proved.
In appeal to this Court on the questions (1) Whether the High Court should have allowed the amendment; and (2) Whether the appellant was guilty of any corrupt practice, HELD : The appellant 's election was rightly set aside.
(Per Bachawat, J.) : (1) The High, Court erred in allowing the amendment.
When a corrupt practice is charged against the returned candidate the election petition Must set forth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is.
It must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not dis 7Sup CI/69 15 218 closed in the particulars.
Section 86(5) of the Act, however, allows amendment of particulars, but the Court shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition, and normally, an application for amendment should be made within a reasonable time.
Though the Court has power to allow an amendment even after commencement of the trial, leave to amend would not he granted if the petitioner was not acting in good faith or had kept back facts known to him.
[221 B D, G H; 222 A B] In the present ease, the first respondent knew of both items of corrupt practice ' from his witnesses who were present at the speeches made by S.M.
If S.M. had told the electors about the mandate of Sri Shankaracharya, the witnesses must have given information to the first respondent, and no explanation was given by the first respondent as to why he withheld the information at the time of filing the petition or when he first amended his petition.
He was aware of the difference between the two charges of telling the electors about the sin of gohatya and that of telling the electors about the sin of disobeying the command of their religious leader.
But the :first respondent deliberately refrained from taking the new charge earlier and moved the application for amendment in bad faith at a very late stage of the trial.
Ordinarily, in an appeal under section 116A of the Act, this Court would not interfere with the discretion of the High Court in granting amendments, but since the order of the High Court has resulted in 'manifest injustice, this Court has the power and duty to correct the error.
[222 B D, F H; 223,A E] (Per Hegde, J.) The High Court has given good reasons in support of its order allowing the amendment and no case was made out to interfere with it.
[227 D] (2) (Per Bachawat, J.) There is ' no absolute ban on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban.
Public criticism 'of the Congress party for not abolishing cow 'Slaughter was permissible, but the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 123(2) of the Act.
Under section 123(2), proviso ( a) el.
(ii), there is such undue influence if any person, with the consent of the candidate or his election agent, attempts to induce an elector to, believe that he will be tendered an object of divine displeasure or spiritual censure.
[224 D F] In the present case, S.M. spoke at the meeting on February8, 1967 with the consent of the election agent of the appellant.
S.M.was a Kirtankar of repute and well known and respected for his lectures on Hindu religion, while his audience consisted mostly of illiterate and ortho dox Hindus of rural areas who are filled with horror at the slaughter of a cow.
The dominant theme of the speech was that those who commit the sin of gohatya would be visited with divine displeasure.
Therefore, even apart from the charge relating to the command of Sri Shankaracharya, the speech was calculated to interfere with the free exercise of electroral right.
The corrupt practice was thus committed at the meeting on February 8, 1967, with the consent of the election agent of the appellant.
[224 G H; 225 G H; 226 F G 227 B C] Narbada Prasad vs Chhagan Lal, ; , followed.
(Per Hegde, J.) Everyone of the speeches made by S.M., read as a whole, are fanatical outpourings and a direct challenge to the concept of a secular democracy, and fell within the vice of the proviso (a)(ii) of section 123(2) of the Act.
[227 E] 219
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<s>[INST] Summarize the judgementAppeals Nos. 1594 and 1595 of 1968.
Appeals from the judgment and order dated August 29, 1963 of the Calcutta High Court in Income Tax Reference No. 38 of 1960.
Sachin Chaudhuri, T. A. Ramachandran and D. N. Gupta, the appellant (in both the appeals).
D. Narsaraju, section K. Aiyar, R. N. Sachthey and B. D. Sharma for the respondent (in both the appeals).
The Judgment of the Court was delivered by Shah, J.
In respect of assessment years 1949 50 and 1950 51 the Income tax Appellate Tribunal referred five questions to the High Court of Calcutta under section 66(1) of the Indian Income tax Act, 1922.
Three of those questions which are canvassed in these appeals need be set out : Assessment year 1949 50 "(1) Whether on the facts and in the circumstances of the case, the sum of Rs. 51,550/ was A profit in the nature of revenue and therefore liable to tax under the Indian Income tax Act ?" Assessment year 1950 51 "(3) Whether, on the facts and in the circumstances of the case, the sum of Rs. 8,756/ was a profit 798 in the nature of revenue 'and was subject to tax under the Indian Income tax Act ? (4) Whether, on the facts and in the circumstances of the case, the loss of Rs. 34,891/ was allowable as a deduction against the business income of the assessee for the assessment year 1950 51?" The appellant a limited Company incorporated under the Indian Companies Act, 1913 carries on business as managing agents, dealers in shares and stocks, stores and spare parts of machinery and acts as insurance agents and manufacturers of carbon dioxide.
It also works certain coal mines.
The Company obtained a prospecting licence from the State of Korea for the Chirimiri Colliery in 1944 and after prospecting for coal sold the colliery, and thereby earned a profit of Rs. 51,550 in the account year 1948 49 and Rs. 8,756 in the account year 1949 50.
The Income tax Officer brought the profits arising out of the sale of the colliery to tax as business profits.
The order was confirmed in appeal by the Appellate Assistant Commissioner and the Income tax Appellate Tribunal.
The Company conducted a Dry Ice Factory at Lahore.
The factory was sold in September 1948 to the Indo Pakistan Corporation Ltd. The purchaser took over the factory on October 1, 1948, but the price was finally settled in December, 1949.
By the sale the Company suffered a loss of Rs. 34,891.
The Company claimed to deduct this loss from its income assessable to tax in the assessment year 1950 51.
The Income tax Officer disallowed, the claim.
The Appellate Assistant Commissioner agreed with that view, and the Tribunal confirmed the order.
In answering questions (1) & (3) the High Court observed "The Chirimiri Colliery was sold after prospecting and proving coal.
The sale in such 'a case was a part of the trading activities of the assessee and such activity could be gathered from the surrounding circum stances as also from the manner in which it was sold, that is, within a very short time after its acquisition and after it was made fit for obtaining a reasonably higher price at the sale. .
The profit thus acquired can not be treated as a capital asset.
" In answering question (4) the High Court observed "The loss of Rs. 34,891 sustained by the assessee after the sale of Dry Ice Factory at Lahore in September 1948 cannot be treated as a loss of the business of sale, inasmuch as the Tribunal found as a fact that the loss not having occurred in the relevant accounting 799 year, was referable to the transaction of business during a period when the business completely ceased before the commencement of the accounting year.
Counsel for the Company urges that prospecting for coal under a licence obtained from the State of Korea was not, part of the business operations of the Company and that by selling the rights in the mine, the Company disposed of its assets and made gains of a capital nature.
In any event, it was urged, this was a single transaction and in the absence of evidence that the Company carried on the business of obtaining prospecting licences and of selling the mines if "coal was proved", the profit arising out of sale of the mine which was a capital asset acquired by that transaction was not taxable.
Where a person disposes of a part or the whole of his assets the general rule is that the mere change or realisation of an investment does not attract liability to income tax but where such a realisation is an act which in itself is a trading transaction, profit earned by sale or conversion is taxable : Commissioner of Taxes vs Melbourne Trust Ltd.(1) The cases which illustrate this distinction fall broadly into two categories those where the sales formed part of trading activity, and, those in which the sale or realisation was not an act of trading.
As observed in Californian Copper Syndicate (Limited and Reduced) vs Harris (Surveyor of Taxes) (2) the test is Is the sum of gain that has been made a mere enhancement of value by realising a security, or, is it a gain made in an operation of business in carrying out a scheme for profit making ?" In determining whether the gain is realization of mere en hancement of value or is a gain made in an operation of business in carrying out a scheme for profit making, do uniform rule ran be evolved.
It was observed by this Court in Janki Ram Bahadur Ram vs Commissioner of Income tax(3) : ". . no single fact has decisive significance, and the question whether a transaction is an adventure in the nature of trade must depend upon the collective effect of all the relevant materials brought on the record.
But general criteria indicating that certain facts have dominant significance in the context of other facts have been adopted in the decided cases.
if, for instance, a transaction is related to the business which is normally carried on by the assessee, though not directly part of it, an intention to launch upon an, adventure in the nature of trade may readily be inferred.
(1) , 1010 (P.C.) (2) ,166.
(3) , 25.
800 A similar inference would arise where a commodity is purchased and sub divided, altered, treated or repaired and sold, or is converted into a different commodity and then sold.
Magnitude of the transaction of pur chase, the nature of the commodity, subsequent dealings and the manner of disposal may be such that the transaction may be stamped with the character of a trading venture: .
" A transaction of sale may in a given case be isolated : in another it may be intimately related to the normal business of the tax payer.
In the latter class profit arising from the transaction will probably arise out of the tax payer 's business and will be assessable as business profits.
An instructive case of this class is Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. vs Kelly(1).
In that case the Company carried on the business of tobacco manufacture, for which large quantities of tobacco leaf were purchased in the United States, where the Company maintained a large buying Organisation.
To finance the purchases and the expenses of this Organisation the Company bought dollars in the United Kingdom through its bankers who remitted them to the banking accounts of the Company in the United States, and it was the practice of the Company to accumulate a large holding of dollars each year before the leaf season commenced.
The Company never bought dollars for the purpose of resale as a speculation.
On the outbreak of war, in September 1939.
the appellant Company, at the request of the Treasury, stopped all further purchases of tobacco leaf in the United States, and, as a result, the Company had on hand, a holding of dollars accumulated between January and August, 1939.
On September 30, 1939, the Company was ordered under the Defence (Finance) Regulations, 1939, to sell its surplus dollars to the Treasury, and, owing to the rise in the rate of exchange, the sale resulted in a profit to the Company.
It was held by the Court of Appeal that the profit was liable to be included as profits of its trade under Sch.
D Case 1.
The tax payer was not carrying on business in dollars, but the transactions in dollars were intimately related to their principal business and the profits earned by sale of dollars were treated as profits taxable as business profits.
In T. Beynon & Co. Limited V. Ogg (Surveyor of TaxeS(2) the tax payer carrying on business as Coal Merchants, Ship and Insurance Brokers, and as sole selling agent for various Colliery Companies, in which latter capacity it was part of its duty to purchase wagons on behalf of its clients, bought a large number of wagons on his own account with the intention of reselling them (1) (2) 801 at profit.
The contention of the tax payer that the transaction being an isolated one, the profit was in the nature of a capital profit on the realisation of an investment was negatived.
The profits realised in this transaction were held to result from the operation of the Company 's business and properly includable in the computation of the Company 's profits for assessment under Sch.
D. In Gloucester Railway Carriage and Wagon Co. Ltd. vs The Commissioners of Inland Revenue(1) the tax payer carried on the business of manufacturing wagons for sale or hire.
The tax payer sold some of the wagons which were formerly hired out.
The tax payer contended that the profit realized by sale was an isolated transaction resulting in a capital profit.
The House of Lords held that the "business was all one ', namely, to make profit out of wagons and on that account the profits realized by sale of wagons were taxable.
The Tribunal in the present case recorded the following findings : "It is no doubt true that this was a single transaction ' But we were told by the assessee 's counsel that the assessee obtained prospecting licence in the colliery, developed the colliery and then sold out.
What was the purpose of obtaining the prospecting licence has not been told to us.
The assessee was carrying on business of coal mining.
The prospecting of coal is a part of the coal mining business.
Therefore, in our opinion, the transaction of prospecting, developing and selling the colliery is a transaction in the nature of a business.
Therefore, the profit arising from the sale is a profit in the nature of revenue and has been rightly brought to tax.
" Our task would have been lightened if the Tribunal had stated the findings in greater detail.
Nevertheless the Tribunal has found that the Company was carrying on the business, of coal mining and prospecting of coal was a part of the coal mining business and on that account the transaction of prospecting, developing and selling the colliery was a transaction in the nature of a business.
On the findings recorded by the Tribunal it follows that the prospecting for, coal being a part of the coal mining business, the income was properly regarded as taxable.
The answer recorded by the High Court on questions (1) & (3) must be upheld.
Turning to the fourth question : the sale transaction of the Dry Ice Factory, was completed on October 1, 1948, but the price was finally settled in December 1949.
In the settlement, the Company suffered a loss of Rs. 34,891.
The loss was suffered in the (1) 802 business transaction and the only dispute raised before the Tribunal related to the year in which the loss was liable to be taken into account.
The Tribunal disallowed the loss in the assessment of income for the year 1950 51.
The Tribunal held that the business of the Dry Ice Factory was not carried on in the year of account April 1, 1949 to March 31, 1950, and on that account the loss was hot admissible as a permissible deduction in computing the taxable income of the Company for the assessment year 1950 51.
The High Court agreed with the Tribunal.
In our judgment, the High Court was in error in holding that the loss was not a permissible deduction.
Section 24 of the Income tax Act, 1922, in the relevant year of assessment read as follows : "(1) Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against as income, profits or gains under any other head in that year Provided that (2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, under the head profits of business, profession or vocation, and the loss cannot be wholly set off under sub section (1) the portion not so set off shall be carried forward to the following year and set off against the profits or gains, if any, of the assessee from the same business, profession or vocation for that year Provided that By sub section
( 1 ) the loss or profits or gains suffered under any head in any year was liable to be set off against the income, profits or gains under any other head, and by sub section
(2) where the loss suffered in any business, profession or vocation could not be wholly set off under sub section
( 1 ) the loss not so set off had to be carried forward to the following year and set off against the profits and gains of the same business in the subsequent years.
The Tribunal and the High Court applied sub section
(2) of section 24 in computing the taxable income of the Company for the assessment year 1950 51.
But in so proceeding, in our judgment, they were in error.
The business of Dry Ice Factory was sold in October, 1948.
We will assume that the Dry Ice Factory was 'a separate business of the Company and was not a part of the other business carried on by the Company.
But the price for which the business was sold was settled in December 1949.
Until the price was 803 settled, loss did not accrue or arise to the Company.
The loss was suffered in the account year 1949 50 and could be allowed against the income of that year under section 24(1).
The assumption that the loss was suffered in the previous year i.e., 1948 49 was, in our judgment, not warranted.
The case was plainly governed by sub section
(1) of section 24.
The answer to the fourth question recorded by the High Court must be discharged.
The answers to questions (1) & (3) recorded by the High Court are affirmed.
Question (4) Will be answered in the affirmative and in favour of the Company.
In view of the divided success, there will be no order as to costs in this Court.
The order as to costs in the High Court is maintained.
V.P.S. Appeals allowed in part.
[/INST]The respondent a dealer purchased unginned cotton and after ginning the cotton and removing the seeds sold the ginned cotton to customers outside the State.
The respondent paid parchase tax on the purchase turnover.
In respect of cotton seeds sold by it to registered dealers,the respondent claimed deduction from the parchase turnover under section 5 (2) (a) (vi) of the Punjab Sales Tax Act, 1948.
But the assessing authority did not allow the deduction holding that the goods sold viz., cottonseeds were not the goods in respect of which purchase taxhad been levied as the unginned cotton underwent a manufacturing process and the goods.
produced were different from those purchased.
The respondent filed a writ petition in the High Court, which was allowed and the State 's Letters.
Patent Appeal was dismissed.
Allowing the State 's appeal, this Court; HELD : The respondent was not entitled to deduction under section 5(2) (a) (vi) of the Act in respect of cotton seeds sold by it to registered dealers.
"Declared goods" in section 14 of the are individually specified under separate items.
"Cotton ginned ' or unginned" is, treated as a single commodity under one item of declared goods.
It is.
evident that cotton ginned or unginned being.
treated as a single commodity and as a single species of declared goods cannot be subject unders.
15(a) of the to a tax exceeding two per cent of the sale or purchase price thereof or at more than one state.
But so far as cotton seeds are concerned it cannot be held that the sale of cotton seeds must be treated as a sale of 'declared goods for the purpose of is.
15(a) or (b) of the .
Cotton in its unginned state contains cotton seeds, but it is by a manufacturing process that the cotton and the seed are separated and it is not correct to say that the seed so separated is cotton itself or part of the cotton.
They are two.
distinct commercial goods though before the manufacturing process the seeds might have been a part of the cotton itself.
[853 E] Patel Cotton Company Private Ltd. vs State of Punjab & Ors., 15 S.T.C. 865, disapproved.
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<s>[INST] Summarize the judgementCivil Appeal No. 2544 of 1969.
From the Judgment and Decree dated 21 12 1965 of the Kerala High Court in A.S. No. 403 of 1961.
1135 P. Govindan Nair, C. section Ananthakrishna Iyer, section Balakrishnan and Mrs. Baby Krishnan, for the Appellant.
T. section Krishnamurthy Iyer and Mrs. section Gopalakrishnan for the Respondents.
E. M. section Anam and P. N. Pura for Respondent No. 9.
The Judgment of the Court was delivered by DESAI, J.
On a certificate granted by the Full Bench of the High Court of Kerala, original plaintiff, a Hindu widow who was seeking partition of a share to which her deceased husband was entitled, having lost in both the Courts, has filed this appeal.
The High Court granted the certificate under Article 133(1)(c) of the Constitution as in its opinion the following substantial questions of law arise from the judgment rendered by it: 1.
Whether under the Mitakshara Law the parties are governed by customary law, and, in the absence of any rule of customary law on the point in question, by Mitakshara Law property can be divided, albeit by a family settlement, between two artificial units of a joint family, one comprising the sons of a father by his first wife, the first wife and his step mother, and the other comprising his son by his second wife and the second wife so as to constitute each unit into a coparcenary with rights of survivorship between its members; and 2.
Whether the use of the word 'tavazhi ' (in any case a misnomer) in describing the two units in the will, Ext.
P 1 left by the father and held to be the basis of the family settlement, is sufficient in the circumstances, to establish an intention that the members of each unit were to take the property as coparceners and not as tenants in common, the grouping into units being only for convenient enjoyment? The factual background from which, according to the High Court the aforementioned two questions emerge for consideration of this Court may be stated.
One Karappan, son of Chulliparambil Krishnan, had two wives Nani and Ponni.
Defendant 1 Krishnan, defendant 2 Shankaran, one Raman, husband of plaintiff Kallyani, and deceased Madhavan, husband of defendant 3 and father of defendants 4, 5 and 6, were his sons by first wife Nani, and one Kesavan was his son by the second wife Ponni.
He had six daughters, four by the first wife and 1136 two by the second wife.
One Valli was the second wife of his father and she had three daughters.
Karappan and his family are Ezhavas and in the matter of inheritance, succession and on the question of personal law they were governed essentially by customary law and in the absence of any specific custom they are governed by the Hindu Mitakshara Law.
Karappan executed a registered deed variously described as a will or a deed of partition or evidencing family arrangement, Ext.
P 1 dated January 25, 1910, the salient features of which may be reproduced.
After narrating his near relations including his two wives, male and female children born to each and his father 's second wife and her children, the following recitals are worthy of note: "There are as belonging to me now properties to the value of Rs. 8000/ mentioned in the sub joined schedules A and B as my tarwad properties and also my self acquired properties and properties to the value of Rs. 200/ of the C schedule which is set apart as common properties".
"Since I am seriously ill and in order that there may not arise any dispute in future in respect of properties belonging to me, I have resolved today the following with regard to the course of enjoyment of the said properties after my death".
"I myself shall have the full powers of disposition over all the properties described in A, B and C schedules during my life time and after my death, out of the properties to the value of Rs. 8000/ , Rs. 1300/ worth of properties shall vest in each of my male issues, Rs. 300/ in my first wife, Rs. 1000/ in my second wife since she is sick and Rs. 200/ in my father 's second wife".
"On the above basis I have set apart to be vested in them after my death Rs. 5200/ worth of properties to the first tavazhi male issues, Rs. 300/ to my first wife and Rs. 200/ to my father 's wife, altogether properties worth Rs. 5700/ scheduled to A schedule; Rs. 1300/ worth of properties comprising items 1 to 4 and 6 to 12 of B schedule to the second tavazhi, inclusive of an owelty of Rs. 227 as.
5 decided to be paid by the first tavazhi to the second tavazhi, and item 5 of B schedule worth Rs. 1000/ to my second wife". "And that 1/5th share of assessment of C schedule property shall be paid annually by Kesavan in the Amsom and receipt obtained".
1137 "It is also resolved that each tavazhi shall meet the travelling expenses of female issues and maintain properly the women who return on the death of their husbands, that both tavazhis shall equally maintain the children of my aunt and my sister and that since C schedule properties are partitioned now, all my male issues shall have equal rights over the property after my death".
This is a registered deed.
Soon thereafter, in February 1910, Karappan died.
Raman, the husband of the plaintiff, the third son of the first wife, died on February 20, 1936.
Plaintiff widow of Raman sued for partition and separate possession of her undivided 1/4 share in properties set out in A, B and C schedules to the plaint.
It is necessary to clarify here that there were A, B and C schedules annexed to Ext.
P 1 which, for clarity of understanding, would be referred to as the Will of the deceased though it would be presently pointed out that it is ineffective as a Will.
Schedules A and B to Ext.
P 1 specify certain properties.
Properties set out in schedule B to Ext.
P 1 except item No. 5 were awarded to Kesavan, the son by the second wife, and item No. 5 to the second wife.
Properties in schedule A to Ext.
P 1 subject to adjustment pointed out in Ext.
P 1 were given to the first wife and her sons.
Properties set out in schedule C to Ext.
P 1 were kept undivided and were the subject matter of another suit filed by the present plaintiff which has ended in a decree in her favour and which decree has become final.
On the other hand, properties set out in schedule A to the plaint are the very properties which are shown in schedule A to Ext.
In respect of properties set out in the schedule B to the plaint it is alleged that they were acquired by the joint labour of defendants 1 and 2, deceased Raman and Madhavan, and it is equally true of properties set out in schedule C to the plaint but they were separately set out because they stood in the name of the wife of defendant 1.
Plaintiff, however, claimed 1/4 of her share in all the properties set out in schedules A, B and C to the plaint.
The suit was principally resisted by defendant 1 as per his written statement dated July 12, 1958.
It was in terms contended that the properties dealt with by Ext.
P 1 were the joint family properties of Karappan and his sons and that Karappan was not entitled to and had no authority in law to execute a Will in respect of the properties.
There is an averment which may be extracted.
It reads: "Even though Karappan has no right to execute the Will accordingly, what Karappan actually did was that he parti 1138 tioned the properties between the two tavazhies in order to avoid future quarrel between the two wives and their children.
As a father he has got the right to partition his properties according to the custom of the community and according to the Mitakshara law, that Will would be valid as a deed of partition and accordingly accepting the same later, properties had been taken possession by the two tavazhies separately.
Even though the execution of such a deed was against procedure, it was in order to honour the wishes of deceased Karappan that the same was acted upon".
In respect of plaint B schedule properties, the contention was that it was acquired by the private income of the first defendant and that schedule 'C ' properties belonged to the wife of defendant 1 and that plaintiff has no share in it.
It was also contended that as the four sons by the first wife of Karappan constituted a tavazhi, it has all the incidents of a coparcenary and, therefore, succession was governed by survivorship and hence the plaintiff has no share in schedule A properties.
The trial Court framed as many as 12 issues.
The important findings of the Trial Court are that Ext.
P 1 is neither effective as a Will nor as a deed of partition.
Without specifically so saying that Ext.
P 1 would be effective as a family arrangement, it was held that Ext.
P 1 had the effect of constituting a coparcenary of four brothers, sons of first wife of Karappan and that it was their joint family property and they did not hold as tenants in common but as joint tenants and were governed by survivorship in the matter of succession.
The contention that even in such a situation the widow would be entitled to her share because of a customary right was negatived.
In respect of B and C schedule properties it was held that they belonged exclusively to defendant 1 and his wife and plaintiff cannot claim a share in them.
Consistent with these findings, the plaintiff 's suit was dismissed.
A Full Bench of the Kerala High Court heard the first appeal preferred by the plaintiff.
The High Court substantially agreed with the findings of the trial Court and specifically held that Ext.
P 1 furnished important evidence of a family arrangement accepted and acted upon by all the parties affected thereby.
It was held that as family arrangement it is binding and it indicated that the division was per branches, therefore, the four sons by the first wife of Karappan divided as one branch and one son alone by the second wife separated as a different branch and as four sons by the first wife constituted a joint family, succession would be governed by survivorship and the plaintiff is not entitled to claim any share in schedule A properties.
1139 On the question of acquisition of schedule B and C properties, the finding of the trial Court was confirmed.
It may be mentioned that plaintiff had filed another suit for partition of properties set out in C Schedule to Ext.
P 1 and that suit was decreed in plaintiff 's favour and that decree has become final.
Two questions of general importance framed by the High Court are rather involved and confusing and do not pinpoint the attention on questions of law emerging from the judgment of the High Court.
The first question that needs to be answered is whether Ext.
P 1 styled as a Will by the deceased Karappan would be effective as a Will.
If by Ext.
P 1 deceased Karappan attempted to make a Will of the ancestral property in his hand in which his sons had acquired interest by birth, obviously he had no power to make a Will in respect of such property.
P 1 does not purport to devise by Will the individual share of testator Karappan in the joint family property but he attempts to make a will of all the properties, ancestral and self acquired and even to dispose of property in which his sons had interest by birth, by will.
He has not claimed any share in the property but claimed a right to deal with ancestral property as he desired.
In Ext.
P 1 itself he describes properties set out in schedules A and B annexed to Ext.
P 1 as his tarvad properties.
Expression 'tarvad ' in Marumakkattayam Law is the name given to the joint family consisting of males and females, all descended in the female line from a common ancestress.
A tarvad may consist of two or more branches known as thavazhies; each tavazhi or branch consisting of one of the female members of the tarvad and her decendents in the female line (see Mayne 's Hindu Law and Usage, 11th Edn., pp. 792 93.) Thus when property is described as tarvad property in a broad sense it is admitted to be joint family property.
This also becomes clear from the recital in Ext.
P 1 that properties in A and B schedules were tarvad properties and property in C schedule were claimed by him as his self acquired properties and they were to be kept joint and were not sought to be dealt with by Ext.
Therefore, to the extent Ext.
P 1 purports to dispose of ancestral properties by will it would be ineffective as a will as testator Karappan had no power or authority to dispose of by will ancestral properties in his hand.
And as he has not attempted to dispose of his undivided share in the ancestral properties by Ext.
P 1 it is not necessary here to examine the question whether Mitakshara law as administered in Tamil Nadu and Kerala enables an undivided coparcener to dispose of his share in joint family property by will.
Therefore, Ext.
P 1 is not effective as a will and 1140 the respondents did not invite us to affirm their rights under Ext.
P 1 as if it is a binding will.
The next stage in the unfolding of the case is whether Ext.
P 1 is effective as a partition.
Partition is a word of technical import in Hindu law.
Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition.
In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty.
Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant in common.
Such partition has an impact on devolution of shares of such members.
It goes to his heirs displacing survivorship.
Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar vs Rama Subha Aiyar quoted with approval in Smt.
Krishnabai Bhritar Ganpatrao Deshmukh vs Appasaheb Tuljaramarao Nimbalkar & Ors.
A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter.
This may at any time, be claimed by virtue of the separate right (see Girja Bai vs Sadashiv.
A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.
There was some controversy whether a Hindu father governed by Mitakshara law has a right to partition ancestral properties without the consent of his sons.
After referring to Mitakshara, I, ii, 2, Mayne in 'Hindu Law & Usage ', 11th Edn.
p. 547, states that a Hindu father under the Mitakshara Law can effect a partition between himself and his sons as also between his sons inter se without their consent and that not only can he partition the property acquired by himself but also the ancestral property.
The relevant text may be extracted: "The father has power to effect a division not only between himself and his sons but also between the sons 1141 inter se.
The power extends not only to effecting a division by metes and bounds but also to a division of status".
Similarly, in Mulla 's Hindu Law, 14th Edn., p. 410 (para 323), it is stated that the father of a joint family has the power to divide the family property at any moment during his life time provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se.
The consent of the sons is not necessary for the exercise of that power.
It, therefore, undoubtedly appears that Hindu father joint with his sons governed by Mitakshara law has the power to partition the joint family property at any moment during his life time.
Mr. Krishnamoorty Iyer urged that even though undoubtedly a Hindu father joint with his sons and governed by Mitakshara law has the power to partition the joint family property, this power enables him to partition the property by metes and bounds but he has no power merely to disrupt the joint family status unaccompanied by division of property by metes and bounds.
The limited question that needs answer in this case is whether a Hindu father joint with his sons governed by Mitakshara law has the power to disrupt the joint family status being a first step in the stage of dividing the property by metes and bounds.
The wider question whether a coparcener of a coparcenary governed by Mitakshara law brings about a disruption of joint family status by definite and unequivocal indication of his intention to separate himself from the family would constitute disruption of status qua the non separating members need not be examined.
A Hindu father joint with his sons and governed by Mitakshara law in contradistinction to other manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to impose a partition on his sons with himself as well as amongst his sons inter se without their consent and this larger power to divide the property by metes and bounds and to allocate the shares to each of his sons and to himself would certainly comprehend within its sweep the initial step, viz., to disrupt the joint family status which must either precede or be simultaneously taken with partition of property by metes and bounds.
This view taken in Kandaswami vs Doraiswami Ayyar; does not appear to have been departed from.
Further, the text from Mayne 's book extracted in the preceding paragraph shows that the weight of authority is against the proposition canvassed for by Mr. Iyer.
It does, therefore, appear that a Hindu father governed by 1142 Mitakshara law has power to partition the joint family property belonging to the joint family consisting of himself and his sons and that this power comprehends the power to disrupt joint family status.
The question is, has Karappan as father exercised his power to partition the joint family property by Ext.
P 1 ? Even though the father has a right to make a partition of the joint family property in his hand, he has no right to make a partition by will of joint family property amongst various members of the family except, of course, if it could be made with their consent (see Brijraj Singh vs Sheodan Singh.
Whether it is effective as family arrangement will be presently examined.
Therefore, if by Ext.
P 1 Karappan attempted to make a partition of the property by his will, Ext.
P 1 would be ineffective as a partition.
By Ext.
P 1 Karappan does not divide his property by metes and bounds vesting the share of each in presenti in each of his sons.
One thing that is not in dispute is that Karappan did not intend Ext.
P 1 to be effective from the date on which it was executed.
In his own words he states that he was seriously ill and as he would like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his property shall be enjoyed after his death in the manner stated in Ext.
He reserved to himself the full powers of disposition over all the properties more particularly described in the various schedules annexed to Ext.
P 1 during his life time and whatever directions were given in Ext.
P 1 were to be effective only after his death.
At two places in terms he stated that the dispositions made by Ext.
P 1 were to be effective after his death.
It is, therefore, inescapable that Ext.
P 1 was not to be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed.
It was to be effective from a future date and that future uncertain event was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will.
Further, there was no effective partition by metes and bounds by Ext.
P 1 though the shares of sons were specified as also the provision for female members was made.
If intention of the testator is to be gathered from the language of Ext.
P 1 Karappan intended it to be a will to be effective after his death.
He never intended it to be a partition in presenti.
Therefore, Ext.
P 1 cannot be effective as a deed of partition in the broader sense, i.e. partition by metes and bounds.
What then is the effective of Ext.
P 1 on the joint family of which Karappan was father cum manager ? The respondents contend that 1143 it is a family arrangement providing for carving out branchwise (shakha per wife) separation of interest in the joint family properties and as it was unreservedly accepted by all affected thereby after the death of Karappan, it is binding on all.
Appellant contends that Ext.
P 1 had the effect of disrupting the joint family status and from that date members of the joint family entitled to their shares in the joint family property, held as tenants in common and not as joint tenant with the result that inheritance by survivorship, a special feature of a Hindu coparcenary, would be displaced by Hindu law of succession, the property going to the heirs recognised by law.
Defendant 1 who contested the suit in terms stated that Ext.
P 1 was not effective as a will.
He than stated that Ext.
P 1 purports to partition the property between the two tavazhies represented by Karappan 's two wives and their respective male offspring.
It may, however, be stated that nowhere in the written statement he has put forth the contention that Ext.
P 1 evidences a family arrangement assented to by all affected thereby.
That case appears to have been made out by the High Court for the first time and since the plaintiff has been non suited on the finding that Ext.
P 1 was a family arrangement which provided for a coparcenary of four sons of the first wife of Karappan, retaining inheritance by survivorship amongst the four members it is necessary to examine the contention whether Ext.
P 1 provides for a family arrangement assented to by all concerned.
An ineffective will sometimes though not always, if otherwise consented by all adult members, may be effective as a family arrangement but as the father of a joint Hindu family has no power to impose a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he has but which he has failed to effectively exercise, cannot in the absence of consent of all male members bind them as a family arrangement.
What constitutes family arrangement has been fully examined by this Court in M. N. Aryamurthy & Anr.
vs M. D. Subbaraya Setty (dead) through I.r. & Ors.
Broadly stated, it is that there must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family and secondly the agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property or the place and security of the family.
Both these ingredients appear to be absent in this case.
In Brijraj Singh 's case (supra) a father purported to make a will in which he recorded a partition of the joint family property amongst his three sons.
He did not take a share for himself and simultan 1144 eously gave double share to his eldest son.
There were usual recitals of partition and allotment of shares and it was further stated that in anticipation of execution of the deed various sharers were put in possession of property allotted to each of them.
This was done two months prior to the execution of the so called will.
The document was held ineffective as a will but on evidence it was found that all concerned had acquiesced in the arrangement evidenced by the deed and the deed was intended to operate from the date of its execution and, therefore, it evidenced a family arrangement contemporaneously made and acted upon by all the parties and hence binding.
Similarly in Lakshmi Chand vs Anandi, two brothers having no male issue and constituting a joint Hindu family governed by Mitakshara, signed a document, described therein as an agreement by way of will.
The document provided in effect that if either party died without male issue, his widow should take a life interest in a moiety of the whole estate and that if both the parties died without male issue, the daughters of each, or their male issue, should divide the father 's share.
The document was registered.
A few days after its execution one brother died, and his widow was entered as owner of a moiety of the estate.
Subsequently the other brother sued for a declaration that the document was null and void.
Privy Council held that the document could not operate as will but that as a co sharer in a Mitakshara joint family with the consent of all his co sharers he could deal with the share to which he would be entitled on a partition and was binding as family arrangement.
To be effective as a family arrangement the deed must be one intended to operate from the date of its execution, a feature wanting in Ext.
P 1, and it must be assented to and acquiesced in and acted upon by all affected thereby.
At the time of execution of Ext.
P 1 there is no evidence as to who were the adult members of the family other than Karappan who consented to the alleged family arrangement.
One thing, however, may be pointed out that defendant 1 gave his age as 87 years on December 29, 1959, when his evidence commenced.
Presumably he must have been born in 1872.
But there is no evidence about the age of other children of Karappan.
The only evidence as to the consent of the male members is that after the death of Karappan all male members acted according to the wishes of Karappan as disclosed and ordained in Ext.
Assuming it to be so, Ext.
P 1 was to operate after the death of Karappan and not from the date of execution.
The High Court after referring to Brijraj Singh 's case (supra) overlooked the fact that in accepting the deed before it, the Judicial Committee was impressed by the fact that it was intended to speak from the date on which it was written and not future date, viz., 1145 death of the writer.
P 1 in terms reserves to Karappan his right to deal with the property at his sweet will and was to be operative after his death.
The High Court completely overlooked this material difference.
Assuming that Ext.
P 1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to a share, to the terms of Ext.
P 1 when it was executed, the absence of any dispute at or about the time Ext.
P 1 was executed amongst the members of the family sought to be settled by Ext.
P 1; and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the contention that Ext.
P 1 would furnish evidence of family arrangement.
We have grave doubt whether a Hindu father can impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death.
Therefore, Ext.
P 1 does not furnish evidence of family arrangement.
Now, if Ext.
P 1 cannot be effective as a deed of partition inasmuch as it did not result in division of property by metes and bounds, its effect on continued joint family status may be examined.
If it disrupted joint family status by its very execution, there was thereafter no question of directing any family arrangement to be effective from a future date as per its terms and even though it may spell out a family arrangement what effect the disruption of joint family status would have on the mode of succession has to be ascertained.
One thing is crystal clear that Ext.
P 1 is not a deed of partition in the sense it does not purport to divide the property amongst various coparceners by metes and bounds.
However, in Hindu law qua joint family and joint family property the word 'partition ' is understood in a special sense.
If severance of joint status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition.
(see Raghavamma vs Chenchamma).
To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family.
What from such intimation, indication or representation of such interest should take would depend upon the circumstances of each case.
A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration.
A review of the decisions shows that this intention to separate may be manifested in diverse ways.
It may be by notice or by filing a suit.
Undoubtedly, indication or 1146 intimation must be to members of the joint family likely to be affected by such a declaration.
Has not Ext.
P 1 the effect of bringing about a disruption of joint family headed by Karappan and consisting of himself and his sons? The fact situation is that in Ext.
P 1 Karappan specified the share of each of his sons, the property allotted on share being valued at Rs. 1300/ each of the four by the first wife and one by the second wife, and vesting the share so specified in each of his sons.
He also specified value of the property allotted to his first wife, to his second wife and to the second wife of his father.
In the process he found that something more was given to the sons of his first wife and in order to restore the equilibrium of treating his sons equally, he directed that owelty to the tune of Rs. 227/ and odd be paid by the sons of the first wife to the sons of his second wife.
This was with a view to correcting the inequality in division of shares.
He also states that there will be two branches.
He refers to them as tavazhies and himself and his family as tarvad.
Tarvad is akin to joint family and tavazhi is a branch of the family.
The High Court, however, treated the use of the words 'tarvad ' and 'tavazhi ' and 'Karnavaran ' to be inappropriate and hence inconsequential.
Similarly, the High Court found specification of share of each of the male child as not indicative of a partition in the sense of disruption of joint family status.
Partition can be partial qua person and property but a partition which follows disruption of a joint family status will be amongst those who are entitled to a share on partition.
On death of Karappan, Kesavan, the son of the second wife obtained a physical partition of the property, took his own share and left the family.
There was first a disruption of the joint family by specifying the shares in Ext.
Till disruption of joint family status takes place no coparcener can claim what is his exact share in coparcenary property.
It is liable to increase and decrease depending upon the addition to the number or departure of a male member and inheritance by survivor ship.
But once a disruption of joint family status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants in common.
Looking to the terms of Ext.
P 1 there was a disruption of joint family status, the shares were specified and vested, liabilities and obligations towards the family members were defined and imbalance out of unequal division was corrected.
This certainly has effect of bringing about disruption of joint family status and even if there was no partition by metes and bounds and the coparceners continued to remain under the same roof or enjoyed the 1147 property without division by metes and bounds, they did not hold as joint tenants unless re union is pleaded and proved.
It was, however, contended and the contention has found favour with the High Court that when Kesavan, the second wife 's son of Karappan took the properties allotted to his share and left the family, as per terms of Ext.
P 1 four sons of Nani were constituted joint tenants or members of a coparcenary.
In reaching this conclusion reliance was placed by the High Court on Palani Ammal vs Muthuvenkatachala Moniagar.
In that case, after referring to Appovier 's case, (supra) it was observed as under: "But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated.
There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be.
It is also now beyond doubt that a member of such a joint family can separate himself from other members of the joint family and is on separation entitled to have his share in the property ascertained and partitioned off for him and that the remaining coparceners without any special agreement amongst themselves may continue to be coparceners and to enjoy as members of a joint family, what remained after such a partition of the family property.
That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them." In Bhagwan Dayal vs Smt.
Reoti Devi, this Court examined the effect of a separation of one member of a joint family on the joint family status and on the remaining members in the light of the Privy Council decision in Palani Ammal 's case.
(supra) The relevant observation is as under: "The general principle is that every Hindu family is presumed to be joint unless the contrary is proved: but this presumption can be rebutted by direct evidence or by course of conduct.
It is also settled that there is no presumption that when one member separates from others that the latter remained united; whether the latter remain united or not must be decided on the facts of each case." 1148 In fact, Judicial Committee in Balabux vs Rukhmabai unequivocally held that there is no presumption when one coparcener separates from others that the latter remained united.
An agreement amongst them must be proved either to remain united or to reunite.
In Sengoda vs Muthu, the High Court interpreted Palani Ammals case to lay down that if a partition takes place with respect to one coparcener, the decree or the deed bringing about partition would provide a pointer as to the effect of the decree or the deed on the remaining coparceners.
In Bhagwati Prasad Shah & Ors.
Dulhin Rameshwari Juer & Anr.
, this Court pointed out that the general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint.
There is no presumption on the other side too that because one member of the family separated himself there has been separation with regard to all.
It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or they remained united.
Except that four sons by Nani remained under one roof and were joint in food and laboured together there is no evidence that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be created by agreement.
And if Karappan specified even the share of each of his sons by Nani in Ext.
P 1, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four sons constituted a coparcenary.
P 1 could not support such a conclusion and High Court was in error in spelling out such conclusion from Ext.
P 1 overlooking its specific direction of a specified share of each of his sons and liability to pay owelty.
A further submission that there was partition branchwise is unknown to Mitakshara law and is wholly untenable.
In Mayne 's Hindu Law, 11th Edn., p. 347, law as thus stated: "So long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of one and the same branch of the family, can have no legal existence as a separate independent unit; but all the members of a branch, or of a sub branch, 1149 can form a distinct and separate corporate unit within the larger corporate family and hold property as such.
Such property will be joint family property of the members of the branch inter se, but will be separate property of that branch in relation to the larger family.
The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law.
" In Bhagwan Dayal 's case (supra) legal position after referring to earlier decisions has been culled out as under: "Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of re union.
It is a corporate body or a family unit.
The law also recognizes a branch of the family as a subordinate cooperate body.
The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law.
Hindu law does not recognise some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit.
" Now, if five sons of Karappan each constituted a branch, obviously after one son as a branch separated unless a reunion is pleaded, other four cannot constitute a corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together.
In Balkishen Das & Ors.
vs Ram Narain Sahu & Ors., an ikrarnama was produced which showed that defined shares in the whole estate had been allotted to the several coparceners.
There was a passage which gave liberty to any of the parties either to live together as a member of the joint family or to separate his own business.
Mahabir was given four annas share and others defined shares in the remainder.
Contention raised was that Mahabir alone separated and others remained joint.
Subsequent conduct was relied upon to substantiate the contention that they remained together.
Negativing this contention it was held that the ikrarnama effected a separation of estate even if the parties elected either to have a partition of their shares by metes and bounds, or to continue to live together and enjoy their property in common as before.
Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property or their interest in it.
The ikrarnama effected a separation in estate, its legal 1150 construction and effect could not be controlled or altered by the subsequent conduct.
Once the shares were determined and allotted, it was held consistently with Appovier 's case (supra) that this converted them from joint holders into tenants in common.
In Boddu Venkatakrishna Rao & Ors.
vs Boddu Satyavathi & Ors., the following passage in Mulla 's Transfer of Property Act (Fifth Edn.), was approved: "The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family.
" Once disruption of joint family status takes place as Lord Westbury puts it in Appovier 's case, (supra) it covers both a division of right and division of property.
If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties.
Now, in this case Ext.
P 1 itself specifies the share of each member separately.
There is no concept known to Hindu law that there could be a branch of a family wife wise.
To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law.
Therefore, tavazhi wife wise stated in Ext.
P 1 has to be ignored and the contention that there was a partition amongst wife wise branches as represented by each wife is equally untenable.
P 1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family.
There was thus a division of rights and division of property by allotment of shares.
The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants in common.
Subsequent conduct of some of them to stay together in the absence of any evidence of re union as understood in law is of no consequence.
In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the so called evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete.
Therefore, the four sons of the first wife held the property as tenants in common.
There is evidence in the form of some documents showing that defendant 1 was described as Karnavaran of a coparcenary of the 1151 four sons of the first wife of Karappan and that the property was enjoyed as a joint family property.
In view of our conclusion that such subsequent conduct is not conclusive of any agreement to reunite, it is not necessary to examine the evidence.
In view of our conclusion that since the execution of Ext.
P 1 on January 25, 1910, or after the death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of the property left the family there was a disruption of the joint family and the sons of Karappan by his first wife held the property, which remained for them after Kesavan obtained his share, not as joint tenants but as tenants in common, the plaintiff would be entitled to the share to which her deceased husband Raman was entitled.
Raman had 1/4 share in A schedule properties which the plaintiff would be entitled and therefore, there would be a preliminary decree in her favour to that effect.
Plaintiff 's claim to a share in properties set out in schedules B and C annexed to the plaint has been concurrently negatived by both the courts on the finding that they are the properties of defendant 1 and his wife and are not accretions to the property which devolved from Karappan.
This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed.
Therefore, plaintiff 's suit with regard to a share in B and C schedule properties has been rightly dismissed.
At the commencement of hearing of the appeal it was pointed out that original plaintiff Kallyani is dead and there is some dispute between her two daughters Yashoda and Janaki about succession to the estate of Kallyani.
Both had applied to the exclusion of each other for being substituted as legal representatives of the deceased.
For purposes of this appeal both were substituted for the deceased appellant.
It is not necessary to decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kallyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other defendants have no right to be heard in that matter.
Accordingly this appeal succeeds and it is partly allowed.
The judgment and decree of the trial Court and the High Court dismissing the plaintiff 's suit in regard to A schedule property are set aside.
Plaintiff 's suit is decreed and it is declared that she has 1/4 share in properties set out in schedule A annexed to the plaint.
A preliminary decree to that effect shall be drawn.
Defendant 1 shall pay the costs of the plaintiff throughout.
S.R. Appeal allowed in part.
[/INST]One Karappan son of Chulliparambil Krishnan had two wives Naini and Ponni.
Through his first wife Naini he had four sons Krishnan (D1), Shankaran (D2), Raman and the husband of plaintiff appellant Kallyani who died after him and Madhavan who predeceased him and husband of D3 and father of D4, D5 and D6 and four daughters.
He had one son by name Kesavan and two daughters, through his second wife Ponni.
One Valli was the second wife of his father and she had three daughters.
Karappan and his family are Ezhavas and in the matter of inheritance, succession and on the question of personal law they were governed essentially by customary law and in the absence of any specific custom, they are governed by the Hindu Mitakshara law.
Karappan executed a registered deed variously described as a will or a deed of partition or evidencing family arrangement, exhibit P1 dated January 25, 1910.
In this deed after narrating his near relations including his two wives male and female children born to each and his father 's second wife and her children, he described the manner in which the A, B and C scheduled properties should be taken by them, after his death.
In February 1910 Karappan died.
Raman, the husband of the plaintiff appellant, the third son of the first wife died on February 20, 1936.
Plaintiff widow of Raman sued for partition and separate possession of her undivided 1/4 share in properties set out in A, B and C schedules to the plaint.
The Trial Court held that Ext.
P1 had the effect of constituting a coparcenary of four brothers, sons of first wife of Karappan and that it was their joint family property and they did not hold as tenants in common but as joint tenants and were governed by survivorship in the matter of succession.
The contention that even in such a situation the widow would be entitled to her husband 's share because of a customary right was negatived.
In respect of B & C schedule properties, it was held that they belonged exclusively to defendant 1 and his wife and plaintiff cannot claim a share in them.
The High Court affirmed the Trial Court 's judgment and decree treating exhibit P1 as family arrangement and hence the plaintiff 's appeal by certificate.
Allowing the appeal, the Court ^ HELD: 1. Ext.
P1, styled as a will by the deceased Karappan is not effective as a will.
If by Ext.
P 1 deceased Karappan attempted to make a will of the ancestral property in his hand in which his sons had acquired 1131 interest by birth, obviously he had no power to make a will in respect of such property.
exhibit P1 does not purport to devise by will the undivided share of testator Karappan in the joint family property, but he attempts to dispose of by a will all the properties in which his sons had interest by birth.
He had not claimed any share in the property but claimed a right to deal with ancestral property as he desired.
In exhibit P1 itself he describes properties set out in schedules A and B annexed to exhibit P1 as his tarvad properties.
[1139B C] 2.
Expression "tarvad" in Marumakkattayam law is the name given to the joint family consisting of males and females, all descendants in the female line from a common ancestress.
A tarvad may consist of two or more branches known as 'Thavazhies ', each tavazhi or branch consisting of one of the female members of the tarvad and her descendants in the female line.
Thus when property is described as tarvad property in a broad sense it is admitted to be joint family.
This also becomes clear from the recital in exhibit P.1 that properties set out in A and B schedules were tarvad properties and property in C schedule were claimed by him as his self acquired properties and they were to be kept joint and were not sought to be dealt with by exhibit P1.
Therefore, to the extent exhibit P1 purports to dispose of an ancestral properties by will it would be ineffective as a will as Karappan had no power or authority to dispose of by will ancestral properties in his hand.
[1139C G] 3.
Partition is a word of technical import in Hindu law.
Partition in one sense is a severance of joint family status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition.
In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty.
Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant in common.
Such partition has an impact on devolution of shares of such members.
It goes to his heirs displacing survivorship.
Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property.
A disruption of joint family status by definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter.
This may at any time, be claimed by virtue of the separate right.
A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.
[1140A E] 4.
A Hindu father joint with his sons governed by Mitakshara law has the power to partition the joint family property at any moment during his life time.
The consent of the sons is not necessary for the exercise of that power.
This power comprehends the power to disrupt joint family status.
[1141H, 1142A] Kandaswamy vs Doraiswamy Iyer, Mad. 317; approved.
Even though the father has a right to make a partition of the joint family property in his hand, he has no right to make a partition by will of joint family property amongst various members of the family except, of course, with their consent.
In the instant case, if by exhibit P1 Karappan attempted to make 1132 a partition of the property by his will, exhibit P1 would be ineffective as a partition.
By exhibit P1 Karappan does not divide his property by metes and bounds vesting the share of each in present in each of his sons.
[1142B C] exhibit P1 would not be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed as it was to be effective from a future date and that future uncertain even was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will.
Further, there was no effective partition by metes and bounds by exhibit P1 though the shares of sons were specified as also the provision for female members was made.
If intention of the testator is to be gathered from the language of exhibit P1 Karappan intended it to be a will not a partition in presenti.
Therefore, exhibit P1 cannot be effective as a deed of partition in the broader sense i.e., partition by metes and bounds.
[1142E G] Brijraj Singh vs Sheodan Singh, 10 I.A. 161; referred.
An ineffective will sometimes though not always, if otherwise consented by all adult members, may be effective as a family arrangement but as the father of a joint Hindu family has no power to impose a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he had but which he has failed to effectively exercise, it cannot in the absence of consent of all male members bind them as a family arrangement.
[1143D F] 7.
A family management must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family and secondly the agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property or the place and security of the family.
In this case, both these ingredients are absent.
[1143F G] H. N. Aryamurthy & Anr.
vs N. D. Subbaraya Setty (dead) through I.rs and Ors., ; applied.
Brijraj Singh vs Sheodan Singh, 40 I.A. 161; Lakshmichand vs Anandi, 53 I.A. 123; discussed.
To be effective as a family arrangement the deed must be one intended to operate from the date of the execution, and it must be assented to and acquiesced in and acted upon by all affected party.
In the instant case, exhibit P1 in term reserves to Karappan his right to deal with the property at his sweet will and was to be operative after his death.
Moreover, at the time of the execution of exhibit P.1 there is no evidence as to who were the adult members of the family other than Karappan who consented to the alleged family arrangement.
Assuming that exhibit P1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to share, to the terms of exhibit P.1 when it was executed, the absence of any dispute at or about the time exhibit P.1 was executed amongst the members of the family sought to be settled by exhibit P.1 and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the contention that exhibit P.1 would furnish evidence of family arrangement.
It is doubtful whether a Hindu father can 1133 impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death.
Therefore exhibit P 1 does not furnish evidence of family arrangement.
[1444E H, 1145A C] 9.
In Hindu Law qua joint family and joint family property the word partition ' is understood in a special sense.
If severance of joint family status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition.
To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family What form such intimation, indication or representation of members should take would depend upon the circumstances of each case.
A further requirement is that the unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration: This intention to separate may be manifest in diverse ways.
Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration.
[1145E H, 1146A] Raghavan vs Chenchamma, ; ; referred to.
Partition can be partial qua person and property but a partition which follows disruption of joint family status will be amongst those who are entitled to a share on partition.
Till disruption of joint family status takes place no coparcener can claim what is his exact share in coparcenary property.
It is liable to increase and decrease depending upon the addition to the number or departure of a male member and inheritance by survivorship.
But once a disruption of joint family status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants in common.
[1146E G] In the instant case, on death of Karappan, Kesavan the son of the second wife obtained a physical partition of the property took his owon share and left the family, there was first a disruption of the joint family status.
Looking to the terms of exhibit P 1 there was a disruption of joint family status as the share of each son was specified and vested, liabilities and obligations towards the family members were defined and imbalance out of unequal division was corrected.
This certainly has the effect of bringing about disruption of joint family status and even if there was no partition by metes and bounds and the coparceners continued to remain under the same roof or enjoyed the property without division by metes and bounds, they did not hold as joint tenants unless re union is pleaded and proved.
[1146G H, 1147A] 11.
There is no presumption when one coparcener separates from other that the latter remained united.
An agreement amongst them must be proved either to remain united or to re unite.
A Hindu family is presumed to be joint unless the contrary is proved but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint.
There is no presumption on the other side too that because one member of the family separated himself there has been separation with regard to all.
It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or they remained united.
Except that four sons by Naini remained 1134 under one roof and were joint in food laboured together there is no evidence that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be created by agreement.
And if Karappan specified even the share of each of his sons by Naini in exhibit P 1, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four sons constituted a coparcenary.
exhibit P 1, could not support such a conclusion and the High Court was in error in spelling out such conclusion from exhibit P 1 overlooking its specific direction of a specified share of each of his sons and liability to pay owelty.
[1148B F] Palani Ammal vs Muthuvenkatachala Mariagon, 52 I.A. 83; Bhagwan Dayal vs Mrs. Reoti Devi, ; ; Balabax vs Rukhmabai ILR 3C IA. 130; Sengoda vs Muthu, I.L.R. ; referred to.
Bhagwati Prasad Shah and Ors.
vs Pulhin Rameshwari Juer and Anr., , followed.
Partition branchwise is unknown to Mitakshara Law.
In the instant case, if five sons of Karappan each constituted a branch obviously after one son as a branch separated unless a reunion is pleaded, other four cannot constitute a corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together.
[1148F, 1149E] Balakishan Das and Ors.
vs Ram Narain Sahu and Ors., 30 I.A. 139; bhagwan Dayal vs Mrs. Reoti Bai, [1962] 3 S.C.R. 440; Boddu Venkatakrishna Rao and Ors.
vs Boddu Satyavathi and Ors., ; ; referred to.
Once disruption of joint family status takes place, it covers both a division of right and division of property.
If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties.
[1150C] 14.
There is no concept known to Hindu Law that there would be a branch of a family wife wise.
[1150D] In this case exhibit P 1 itself specifies the share of each member separately.
Therefore, tavazhi wife wise stated in exhibit P 1 has to be ignored.
Ex P 1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family.
There was thus a division of rights and division of property by allotment of shares.
The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants in common.
The plaintiff would be entitled to the share to which her deceased husband Raman was entitled.
Raman had 1/4th share in 'A ' schedule properties which the plaintiff would be entitled.
[1150D, E F, 1151C]
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<s>[INST] Summarize the judgementCivil Appeal No. 1988 of 1982.
From the Judgment and order dated 20.4.1982 of the High Court of Allahabad in Writ Petition No. 630 of 1982.
E Anil Dev Singh and Mrs. Shobha Dikshit for the Appellant.
L.M. Singhvi and C.L. Sahu for the Respondent.
The following Judgment of the Court was delivered by F JAGANNATHA SHETTY, J.
This appeal by special leave, is by the Registrar of Firms, societies and chits of the State.
Of Uttar Pradesh and directed against the judgment and order passed by the high Court of Allahabad in writ petition No. 630 of 1982.
The said writ petition was filed by the respondent which is a partnership firm called as "M/s. Secured Investment Company" ("The Company").
The company mainly carries on business at Lucknow.
It has branch offices at Kanpur and Bareilly.
The nature of business of the company is termed as "a scheme for investment".
The question raised in this appeal is whether that scheme for investment falls within H 458 the category of 'prize chit ' as defined under the Prize Chits and money circulation Scheme (Banning) Act, 1978 (for short "The Act").
The Registrar of Firms, Societies and Chits was of the opinion that the scheme of the company falls within the prohibited category of prize chits as defined under the Act.
So he seized all the documents of the company and also directed the concerned banks not to have accounts in relation thereto.
Challenging the action of the Registrar, the company moved the High Court with a writ petition under Art; 226 of the Constitution.
The High Court allowed the writ petition and quashed the orders made by the Registrar.
In order to correctly appreciate the question raised in this appeal, it is better to have first the clear picture of the law governing the question.
Section 3 of the Act imposes a ban not merely on promoting or conducting any prize chit or money circulation scheme, but also on participation in such chit or schemes.
Section 4 makes a contravention of the provisions of Section 3 punishable with imprisonment which may extend to three years or with fine which may extend to Rs.5,000 or with both.
Section 5 provides penalty for other offences like printing or publishing any ticket, coupon or other document for use in the prize chit or money circulation scheme with a view to promote such scheme in contravention of the Act.
Section 6 deals with offences by companies.
Section 7 confers power on the police officers not below the rank of an officer in charge of a police station to enter, search and seize.
Section 8 provides for the forfeiture of newspapers or other publications containing prize chit or money circulation scheme.
Section 11 provides exemption to certain categories of prize chits or money circulation schemes.
The prize chits or money circulation schemes promoted by the State Government or any officer or authority on its behalf, or by a Company wholly owned by a State Government are exempted from the provisions of the Act. 'Conventional Chit ' has been defined under Section 2(a), and "Prize Chit" has been defined under Section 2(e) of the Act.
Conventional Chit stands excluded from the definition of prize chit, and so much so, the Conventional Chit remains untouched by provisions of the Act.
The definition of the conventional chit is as follows: "Section 2(a).
"Conventional Chit" means a transaction whether called chit, chit fund, kuri or by any other name or under which a person responsible for the conduct of the chit enters into an agreement with a specified number of persons that every one of them shall subscribe a 459 certain sum of money (or certain quantity of grain instead) by way of periodical instalments for a definite period and that each such subscriber shall, in his turn, as determined by lot or by auction or by tender or in such other manner as may be provided for in the chit agreement, be entitled to a prize chit.
" We may presently refer to the definition of 'prize chit ' and before that it is better to have a little bit of history of chit transactions.
The words 'Chitty ' or 'kuri ' Chit or Chit Fund appear to be the common words but with regional variations.
Although there is no clear evidence to show the exact place of origin of chit fund, the available text [(i) 'Chit Finance ' by C.P. Somanath Nayar (1973); (ii) Chit Funds and Finance Corporation by section Radha Krishan an (1974)] indicate that it has spread from the Southern most parts of India.
In the Travancore area of the State of Kerala it is generally called 'chitty '.
Within the same State, in Cochin and Malabar areas it is popularly called 'kuri '.
In other parts of the country it is ordinarily called 'chit ' or 'chit fund '.
In Tamil it is termed as 'chit '.
In Malayalam it is called as 'chitti ' or 'kuri '.
These terms appear to be synonymous, meaning thereby a written piece of paper.
These transactions were purely indigenous institution.
They originated in village life originated by a small group of people well know to each other.
They agreed to contribute periodically a certain amount of grain or money and to distribute the entire collection which was termed as 'fund ' to one of the subscribers.
It was carried on with some mutually agreed basis.
In the nineteenth century, if not earlier, it was very popular in central Travancore and Trichur areas probably among Church congregations.
The chit funds appear to have originated from two legitimate demands of the rural people: (i) a necessity for a lump sum amount to meet some unusual expenditure and (ii) to provide a form of accumulated saving when people had no banking facilities.
It was considered as a source of credit and mode of saving.
It was meant for mutual benefit in which some people joined to save and others to borrow.
What distinguishes the chit fund, however, from other financial transactions is that it connects the borrowing class directly with the lending class.
The pooled saving is lent out to the same group of contributors.
A chit fund collects the savings of the members by periodical subscriptions for a definite period.
At the same time, it makes available the pooled savings to each member by turn as agreed by them, The collected fund may be given either by drawing lots or by bidding.
Lots are drawn periodically and the member whose name appears on the win 460 ning chit gets the collection without any deductions.
He, however, continues to pay his subscriptions but his name is removed from subsequent lots.
Thus every member gets a chance to receive the whole amount of the chit.
This is generally the features of a conventional chit.
It is operated without a professional promoter or manager and without any risk of loss of capital.
During the course of years, the chit funds became more and more popular and attractive.
In the usual process of social growth, the chitties crossed boundaries of its birth place.
It assumed new institutional forms with emergence of new types of interpreneurs.
The partnership firms, private or public limited companies took over the chit business in various forms.
They gave different names, such as price chit, lucky draw, benefit scheme or money circulation scheme.
They offered prizes to attract subscribers.
The basic features, however, remained the same in all such schemes.
Periodically the names of the subscribers were put to draw and the lucky member was given a prize either in cash or in kind like articles of utility.
The subscribers were also given refund of a portion of their contributions.
This became regular business in ever so many people.
Undoubtedly, this rapid growth of chit funds has carried with it some unhealthy features of exploitation.
That has been graphically described by Krishna Iyer, J. in Srinivasa Enterprises & ors.
vs Union of India etc.
, 1 at 804 as follows: "The quintessential aspects of a prize chit are that the organiser collects moneys in lump sum or instalments, pursuant to a scheme or arrangement, and he utilises such moneys as he fancies primarily for his private appetite and for (1) awarding periodically or otherwise to a specified number of subscribers, prizes in cash or kind and (2) refunding to the subscribers the whole or part of the money collected on the termination of the scheme or otherwise.
The apparent tenor may not fully bring out the exploitative import lurking beneath the surface of the words which describe the scheme.
Small sums are collected from vast numbers of persons, ordinarily of slender means in urban and rural areas.
They are reduced to believe by the blare of glittering publicity and the dangling of astronomical amounts that they stand a chance in practice negligible of getting a huge fortune by making petty periodical payments.
The indigent agrestics and the proletarian urbani 461 tes, pressured by dire poverty and doped by the hazy hope of a lucky draw, subscribe to the scheme although they can ill afford to spare any money.
This is not promotion of thrift or wholesome small savings because the poor who pay, are bound to continue to pay for a whole period of a few years over peril of losing what has been paid and, at the end of it, the fragile prospects of their getting prizes are next to nil and even the hard earned money which they have invested hardly carries any interest.
They are eligible to get back the money they have paid in driblets, virtually without interest, the expression 'bonus ' in section 2(a) being an euphemism for a nominal sum.
What is more, the repayable amount being small and the subscribers being scattered all over the country, they find it difficult even to recover the money by expensive, dilatory litigative process." In 1974, the Reserve Bank of India intervened.
The Reserve Bank constituted a Study Group headed by Dr. J.S. Raj to examine the adequacy of existing statutory provisions in regulating the conduct of business by non banking companies.
The Study Group was also asked to suggest remedial measures so as to ensure that the activities of such companies, in so for as they pertained to the acceptance of deposits, investment, lending operations, etc.
subserved the national interest The Study Group went into the matter in some depth.
Chapter VI of their report was devoted to Miscellaneous Non Banking Companies which were conducting prize chits, benefit/savings scheme or lucky draws etc.
Paragraph 6.3 of the report contains interesting informations and it reads as follows: "6.3 Companies conducting the above types of schemes are comparatively of a recent origin and of late, there has been a mushroom growth of such companies which are doing brisk business in several parts of the country, especially in big cities like Ahemdabad, Bangalore, Bombay, Calcutta and Delhi.
They had also established branches in various States.
These companies float schemes for collecting money from the public and the modus operandi of such schemes is generally as described below: The company acts as the foreman or promoter and 462 collects subscriptions in one lump sum or by monthly instalments spread over a specified period from the subscribers to the schemes.
Periodically, the numbers allotted to members holding the tickets or units are put to a draw and the number holding the lucky ticket gets the prize either in cash or in the form of an article of utility, such as, a motor car, scooter, etc.
Once a person gets the prize he is very often not required to pay further instalments and his name is deleted from further draws.
The schemes usually provide for the return of subscriptions paid by the members with or without an additional sum by way of bonus or premium at the end of the stipulated period in case they do not get any prize.
The principal items of income of these companies are interests earned on loans given to the subscribers against the security of the subscriptions paid or on unsecured basis as also loans to other parties, service charges and member ship fees collected from the subscribers at the time of admission to the membership of the schemes.
The major heads of expenditure are prizes given in accordance with the rules and regulations of the schemes, advertisements and publicity expenses and remuneration and other perquisites to the directors.
" The Study Group recorded its conclusions in paragraph 6.11 as follows: "From the foregoing discussion, it would be obvious that prize chits or benefit schemes, benefit primarily the promoters and do not serve any social purpose.
On the contrary, they are prejudicial to the public interest and also adversely affect the efficacy of fiscal and monetary policy.
There has also been a public clamour for banning of such schemes; this stems largely from the mal practices indulged in by the promoters and also the possible exploitation of such schemes by unscrupulous elements to their own advantage.
We are, therefore, of the view that the conduct of prize chits or benefit schemes by whatever name called should be totally banned in the larger interests of the public and that suitable legislative measures should be taken for the purpose if the provisions of the existing enactments are considered inadequate.
Companies conducting prize chits, benefit schemes, etc., may be allowed a period of three years which may be extended by one more year to wind up 463 their business in respect of such schemes and/or switch over to any other type of business permissible under the law.
" It will be seen that the Study Group was of the opinion, that prize chits or benefit schemes primarily benefit the promoters and do not serve any social purpose.
They are prejudicial to the public interest.
They adversely affect the fiscal and monetary policies of the Government.
The Study Group was firmly of the view that the conduct of prize chits or benefit schemes by whatever name called should be totally banned in the larger interests of the public.
The Government of India accepted that report, and decided to implement the above recommendations of the Study Group.
In 1978, the Act with which we are concerned was passed in the Parliament.
The Act provides for banning the promotion or conduct of 'money circulation scheme ' or 'prize chit ' which have been defined as follows: "Section 2(c) 'money circulation scheme ' means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolment of members into the scheme, whether or not such money or thing is derived from the entrance money of the member of such scheme or periodical subscription; section 2(e) 'prize chit ' includes any transaction or arrangement by whatever name called under which a person collects whether as a promoter, foreman, agent or in any other capacity, moneys in one lump sum or in instalments by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner or as membership fees or admission fees or service charges to or in respect of any savings, mutual benefits, thrift, or any other scheme or arrangement by whatever name called, and utilises the moneys so collected or any part thereof or the income accruing from investment or other use of such moneys for all or any of the following purposes, namely: (i) giving or awarding periodically or otherwise to a specified number of subscribers as determined by lot, draw or in any other manner, prizes or gifts in c 464 whether or not the recipient of the prize or gift is under a liability to make any further payment in respect of such scheme or arrangement.
(ii) refunding to the subscribers or such of them as have not won any prize or gift, the whole or part of the subscription, contributions or other moneys collected, with or with out any bonus, premium interest or other advantage by whatever name called, on the termination of the scheme or arrangement, or on or after the expiry of the period stipulated therein, but does not include a conventional chit.
" The scheme for investment with which the company has been carrying on its business is neither a conventional chit not a 'money circulation scheme '.
That is not disputed by the Registrar of Firms.
According to him, the scheme is a 'prize chit ' as defined under Section 2(e) of the Act.
To understand the correct scope of the definition, we must first try to ascertain the purpose of the legislation.
The legal interpretation is not an activity sui generis.
Under the view, now widely held, the purpose of the enactment is the touchstone of interpretation.
The first step in interpretation, therefore, is to gather all informations about the purpose of the Act.
If the Act was meant for the public good, then every provision thereof must receive fair and liberal construction.
It must be construed with vision to ensure the achievement of the object of the Act.
The purpose of the Act could be gathered by having recourse to the Statement of objects and Reasons accompanying the Bill and in long title of the enactment.
The Statement of objects and Reasons reads as follows: "In June 1974, the Reserve Bank of India had con stituted a Study Group under the Chairmanship of Shri James section Raj, the then Chairman, Unit Trust of India, for examining in depth the provisions of Chapter III B of the , and the directions issued thereunder to non banking companies in order to assess their adequacy in the context of ensuring the efficacy of the monetary and credit policies of the country and affording a degree of protection to the interests of the depositors who place their savings with such companies.
In its report submitted to the Reserve Bank in July 1975, the Group ob 465 served that the prize chit/benefit/savings schemes benefit primarily the promoters and do not serve any social purpose.
On the contrary the Group have stated that they are prejudicial to the public interest and affect the afficacy of the fiscal and monetary policies of the country.
prize chits would cover any kind of arrangement under which moneys are collected by way of subscriptions, contributions etc.
and prizes, gifts etc. are awarded.
The prize chit is really a form of lottery.
Its basic feature is that the foreman or promoter who ostensibly charges no commission collects regular subscriptions from the members.
once the member gets the prize, he is very often not required to pay further instalments and his name is dropped from further lots.
The institutions conducting prize chits are private limited companies with a very low capital base contributed by the promoters, directors or their close relatives.
Such schemes confer monetary benefit only on a few members and on the promoter companies.
The Group had, therefore, recommended that prize chits or money circulation schemes by whatever name called should be totally banned in the larger interests of the public and suitable legislative measures should be undertaken for the purpose.
The Bill proposes to implement the above recommendations of the Group by providing for the banning of the promotion or conduct of any prize chit, or money circulation scheme by whatever name called, and of the participation of any person in such chit or scheme.
The Bill provides for a period of two years within which the existing units carrying on the business of prize chits or money circulation schemes may be wound up and provides for penalties and other incidental matters.
The repeal of the existing State Legislations on the subject has also been provided for in the Bill.
" The long title of the Act reads: "An Act to ban the promotion or conduct of prize chits and money circulation scheme and for matters connected therewith or incidental thereto.
" It will be clear from these recitals that the Parliament intended to ban all prize chits and money circulation scheme.
Some of the aspects of the definition of prize chit has been considered by this Court.
In Reserve Bank of India vs Peerless 466 General Insurance and Investment.
Co. Ltd., ; Chinnappa Reddy, J. speaking for this Court observed (p. 1041): "We do not think that by using the word "includes", in the definition in section 2(e) of the Act the Parliament in tended to so expand the meaning of prize chit as to take in every scheme involving subscribing and refunding of money.
The word "includes", the context shows, was intended not to expand the meaning of "prize chit" but to cover all transactions or arrangements of the nature of prize chits but under different names.
The expression "Prize Chit" had no where been statutorily defined before.
The Bhabatosh Datta Study Group and the Raj Study Group had identified the schemes popularly called "Prize Chits".
The Study Group also recognised that "Prize Chits" were also variously called benefit/savings schemes and lucky draws and that the basic common features of the schemes were the giving of a prize and the ultimate refund of the amount of subscriptions (vide Para 6.3 of the report of the Raj Study Group).
It was recommended that prize chits and the like by whatever name called differently, 'prize chits ', 'benefit/savings schemes ', 'lucky draws ', etc.
It became necessary for the Parliament to resort to an inclusive definitions so as to bring in all transactions or arrangements containing these two elements.
We do not think that in defining the expression 'Prize Chit ', the Parliament intended to depart from the meaning which the expression had come to acquire in the world of finance, the meaning which the Datta and the Raj Study Group had The learned judge while examining the scope of two clauses (i) and (ii) of sec.
2(e) observed (p. 1042 43): "The argument is that the two clauses (i) and (ii) are to be read disjunctively and that they should not be read as if they are joined by the conjunction 'and '.
We do not agree.
There is no need to introduce the word 'or ' either.
How clauses (i) and (ii) of sec.
2(e) have to be read depends on the context.
The context requires the definition to be read as if both clauses have to be satisfied.
There is nothing in the text which makes it imperative that it be read otherwise.
The learned counsel urges that the expression 467 ' 'all or any of the following purposes" indicates that the purpose may be either the one mentioned in (i) or the one mentioned in (ii).
We do not agree with this submission.
Each of the clauses (i) and (ii) contains a number of alternatives and it is to those several alternatives that the expression "all or any of the following purposes" refer and not to (i) or (ii) which are not alternatives at all.
In fact, a prize chit, by whatever name it may be called, does not contemplate exhaustion of the entire fund by the giving of prizes; it invariably provides for a refund of the amount of subscription, less the deductions, to all the subscribers or to those who have not won prizes, depending on the nature of the scheme.
Clauses (i) and (ii) refer to the twin attributes of a prize chit or like scheme and not to two alternative attributes .
" In the light of these principles, we may now have a close look at the definition of prize chit ' under sec.
We may cull out the following attributes: There must be collection of moneys from persons.
The moneys may be collected in one lumpsum or in instalments.
The moneys may be collected by way of contributions, subscriptions or as membership fees, admission fees or service charges.
It may be collected by sale of units, certificates or other instruments.
The collection may be in respect of any savings, mutual benefits, thrift or any other scheme or arrangement, no matter by what name.
The Collection may be made by a promoter, foreman.
agent or in any other capacity.
The collection of moneys or any part thereof is utilised for all or any of the purposes set out in clauses (i) and (ii).
They are the two distinct attributes of prize chit, each of which has to be satisfied.
The definition goes a step further.
The amount collected as such need not be utilised for any of the purposes under clauses (i) and (ii).
It may be sufficient to attract the definition if the amount accrued from investment of such collection is used for all or any of the purposes under clauses (i) and (ii).
Clauses (i) and (ii) provide for giving or awarding prize or gift to subscribers.
It may be periodical or otherwise.
The prize or gift may be awarded by lot, draw or in any other manner.
Then there may be refund of the whole or part of the collection.
The refund may be made to all or such of them who have not won any prize or gift.
The refund may be made with or without any bonus, premium interest or other advantage.
468 Leaving aside the verbiage, if we rewrite the definition which reeks of simplicity, it runs like this: Prize chit includes a scheme by which a person in whatever name collects moneys from individuals for the purpose of giving prizes and refunding the balance with or with out premium after the expiry of a specified period.
From the above analysis, it will be clear that the reach and range of the definition of 'prize chit ' is sweeping.
The generality of the language appears to have been deliberately used so that the transaction, arrangement or scheme in which subscribers or contributors agree to forego a portion of their contributions in the hope of getting any prize or gift should not escape from the net of the definition.
Even the participation of any person in such chit or scheme has been prohibited.
The object being that the people should not be attracted to invest their moneys in the hope of getting prizes or gifts.
The reason being that it has been found by the Study Group of Dr. section Raj that all such prize chits or schemes are in the form of lottery and they do not serve any social purpose.
They are prejudicial to the public interest.
They affect the monetary policies of the country.
They benefit only the promoters.
So much is about the law.
Let us now have the fact of the case.
The terms and conditions of the scheme offered by the company are as follows: "1.
Secured Investment Company will be known as COMPANY.
Every member will deposit with the company Rs.220 only once in return he will get a Reinvestment Deposit Plan Receipt/Bank Cash Certificate (a type of Fixed Deposit receipt) of a Government Nationalised Bank 3.
No interest will be given to the member, thus the maturity value of the Bank 's R.D.P. will be Rs.220.
After a member deposits Rs.220 he will get his Bank 's R.D.P. within 7 days.
For members from Lucknow, Kanpur and Bareilly, every effort will be made to give them the R.D.P. Receipt the very next day.
The duration of the scheme is for 66 months.
469 Therefore, the duration of the bank 's R.D.P. Receipt is also for 66 month.
Lucky draws for articles totalling Rs.15,000 per month will be given every month for 60 months.
Thus the total value of prizes for 60 months will be Rs.9 lakhs.
Totally 60 lucky draws will be held, one every month, after the recruitment of 19,999 members per group.
Every month, 21 1ucky prizes will be given.
The Ist Prize will be a Vijay Scooter, the 2nd Prize will be a Kelvinator refrigerator (lO Its.) or a T.V. and 19 other consolidation prizes consisting of articles like transistor, sewing machine, cycle, pressure cooker, stainless steel thali sets, alarm, clocks, etc.
If there is any price increase, later in the period of the scheme of the value of the prize articles which are detailed below the winning member shall pay for the actual price increase.
Cash in lieu of the articles will not be given.
One Vijay Super Scooter Rs.8000 2.
One Kelvinator Fridge (10 Its.) or one T.V. Plus one Mixi Rs.3900 3.
One cycle Rs.400 4.
One table fan Rs.350 section One Sewing Machine Rs.325 6.
2 Nos.
Philips Transistors (Rs. 230 each) Rs.460 7.
3 Nos.
Pressure Cookers (Rs.175 each) Rs.525 8.
S Nos.
Steel thali sets (Rs. lOO each set) Rs.500 9.
6 Nos.
Alarm Clocks (Rs.90 each) Rs.540 TOTAL Rs. 15,000 9.
A winning member will be entitled to participate in subsequent draws.
Thus a member can win prizes over and over again.
If a member withdraws during the duration of the scheme, he can encash his Bank 's R.D.P. directly the H 470 entire amount of Rs.200 but will lose interest for the ba lance months as per Reserve Bank of India rules governing from time to time.
For example, if a member withdraws immediately after he gets his R.D.P. Receipt, he loses up to a maximum of Rs.92.
This is the maximum amount a member can lose if he withdraws from the scheme immediately after he becomes a member and after getting his Bank R.D.P.
Of course, he will also not be entitled for the balance lucky draws.
11 The reason for deduction of interest is that the company gives these fantastic prizes through the interest thus gained, also this interest gained has to cover the company '.
overheads and profit.
However, a customer 's refund of his Rs.220 is 100 per cent secured, because at the end of the scheme he can go directly to the Bank and encash the R.D.P. without any consent from the Company.
Out station members can encash the R.D.P. by presenting it to any Bank.
The procedure is the same as one normally encashes an outstation cheque.
The Company reserves the right to accept or reject any membership without assigning any reasons.
In case, the total membership is not fully sub scribed to, members can still be scruited after the start of the draws.
However, the Company will at no stage keep memberships reserved in its own name, thus winner of every draw will go to an actual member.
The lucky draws will take place in rotation at Lucknow, Kanpur and Bareilly on the Ist Sunday of every month.
The lucky draws will be taken out by members themselves to ensure fairness and honesty in the draw.
" There are as many as 19,999 subscribers in each scheme.
All of them do not get prizes and indeed they could not get, since there are only 60 draws with 2 1 prizes each.
The members are not told that the company deducts Rs.92 for its own use.
They are only informed that they are assured of the money deposited in the Bank, and in the event of premature withdrawal, they will lose interest upto Rs.92 only.
471 In spite of all these glaring attributes of exploitive nature of the scheme, the High Court appears to have been carried away with the Reinvestment Deposit Plan Receipt for Rs.220.
The High Court was of the view that the scheme could not be considered as "prize chit".
The High Court said: " It is thus clear from a reading of the document (annexure 1) that the so called 'member ' deposits the amount with the petitioners for the purpose of obtaining a Reinvestment Deposit Plan Receipt, which is promised to him by the petitioners.
He may have been having an idea in the background that by depositing the amount of Rs.220 with the petitioners and obtaining the Reinvestment Deposit Plan Receipt, he would also be considered for the distribution of 'Lucky Prizes '.
But that is not enough inasmuch as the amount which he had deposited with the petitioners was to be invested in a nationalised bank and he was to get a Reinvestment Deposit Plan Receipt.
If the person from whom the money has been collected has not deposited it with the petitioners as "contributions ' ' or "subscription", it is difficult to hold that it is collected by the petitioners as his "contribution or subscription".
The High Court appears to have proceeded on the basis that the members of the scheme do not pay subscription to the company.
Nor do they pay the amount as contribution.
The High Court was also of the view that payment of money to the company for the purpose of obtaining R.D.P. receipt with the hope of getting any prize is not sufficient to attract the definition of prize chit.
In our view, the conclusion of the High Court is patently erroneous.
It is unsustainable both on facts and law.
The High Court has failed to consider that the company undisputedly takes away Rs.92 out of Rs.220 paid by each member.
The High Court has further failed to note that the company utilises the deducted amount of Rs.92 for the purpose of giving prizes to members.
Dr. L.M. Singhvi, learned counsel for the company, did not and indeed could not dispute that the company is deducting Rs.92 out of the payment of Rs.220.
The counsel however, urged that since the member gets the full amount of Rs.220 from the bank at the instance of the company, the scheme is an investment scheme and not prize chit.
We are unable to accept this submission.
The fact that the member receives Rs.220 from the bank after the maturity period of his deposit makes little difference in the nature of 472 the transaction of the company.
The fact remains that the company collects in one lumpsum Rs.220 from every member.
It is only by payment of that amount, the individual becomes a member of the scheme and eligible to get monthly prizes.
The company instead of returning the balance of Rs. 128 directly to the member takes him to a nearby branch of the nationalised bank.
There Rs. 128 would be deposited in the name of the member who gets the same with interest after maturity.
But it should not be forgotten that the member does not get back Rs.92 deducted by the company.
Nor he gets any interest on this amount.
He foregoes his amount of Rs.92 with the hope of getting prizes offered by the company.
There is no guarantee that he will get any prize.
He, however, takes chance month after month.
If he is unlucky he waits in vain for 60 months.
The apparent tenor of the scheme may not bring out the exploitative nature of the scheme.
But it is there if anybody wants to know it.
The company undisputedly collects Rs.92 from every subscriber and utilises a portion of it for giving prizes and to meet overhead charges.
The company in all collects an amount of Rs. 18,44,907.75 at the rate of Rs.92 per head from 19,999 subscribers.
The company distributes monthly prizes of the value of Rs. 15,000.
The total value of all the prizes for 60 months works out to Rs.9 Iakhs.
The balance of about 9.5 Iakhs with interest thereon would be utilised by the company.
Is this a promotion of thrift, investment or saving? At whose costs? and for whose benefit? We are, however, glad to note that Madhya Pradesh High Court while considering a similar scheme in Sahara India vs State of M.P. & others, [ 1983] M.P. 2 128 has held that it is prize chit falling within the scope of Section 2(e) of the Act.
We have no doubt that the scheme of the company with which we are concerned is primarily for the benefit of the promoter or the Company at the costs of the subscribers.
This is the kind of transactions or arrangements which Dr. J.S. Raj Study Group said that it should be banned altogether.
Section 2(e) was intended to cover all such arrangements or schemes.
The interpretation given by the Court should not be stultifying the underlying principle in the definition which was meant to protect people from exploitation.
We would like to emphasise that the Act was intended to ban all kinds of prize chits where persons part with their money and risk the chance of getting prizes or gifts.
Therefore, any scheme or arrangement in which a person agrees to lose or made to part a portion of his payment against the chance of getting any prize or gift, should be considered as prize chit falling within the inclusive definition under Section 2(e).
473 From the above discussion, and in the light of the principles to which we have called attention the scheme of the company is nothing but prize chit as defined under Section 2(e) of the Act and the action of the Registrar of firms deserves to be upheld.
In the result, we allow the appeal with costs and set aside the L judgment and order of the High Court.
Before parting with the case we may, however, observe that the Registrar of the Firms while taking action against the persons or firms under the Act will take care to see that the members of the scheme are not denied of their contributions or prizes which they are legitimately entitled to, if the prize chit is allowed to run for the full term .
S.L. Appeal allowed.
[/INST]The computation of Court fees in suits falling under section 7(IV) of the Court Fees Act depends upon the valuation which the plaintiff in his option puts on his claim and once he exercises his option and values his claim, such value must also be the value for purposes of jurisdiction under section 8 of the Suits Valuation Act.
The value for purposes of Court fee, therefore, determines the value for purposes of jurisdiction in such a suit and not vice versa.
1022 Where, therefore, the Court finds that the case falls under section 7(IV)(b) of the Court Fees Act, and the plaintiff has omitted to specifically value his claim, liberty should ordinarily be given to him to amend his plaint and set out the amount at which he wants to value his claim.
The value put for purposes of jurisdiction which cannot be binding for purposes of Court fee, and must be altered accordingly Karam Ilahi vs Muhammad Bashir, A.I.R. (1949) Lah.
116, referred to.
Consequently, in the present case where the Division Bench of the Madras High Court was of the opinion that section 7(IV)(b) of the Court Fees Act applied but nevertheless held that the valuation given in the plaint for purposes of jurisdiction should be taken to be the valuation for purposes of court fee and directed the appellant to pay court fees both on the plaint and the memorandum of appeal on that basis, its order was set aside and the appellant allowed to pay court fees on the amount at which he valued his relief.
Held further, that 0. 11, r. 1 of the High Court Fees Rules, 1933, framed by the Madras High Court clearly indicates, that section 12 of the Court Fees Act applies to the Original Side of the Madras High Court and it was, therefore, open to the Division Bench in a reference to assume jurisdiction and pass appropriate orders thereunder.
In the absence of any evidence on the record to show that he had either generally or specially been empowered by the Chief justice in this behalf, the Chamber judge sitting on the Original Side of the Madras High Court has no jurisdiction under section 5 Of the Court Fees Act to pass a final order thereunder.
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<s>[INST] Summarize the judgementCivil Appeal No. 2630 of 1987.
516 From the Judgment and order dated 3.?.1986 of the Patna High Court in C.W.J.C. No. 2823 of 1986.
R.N. Sinha, M.M. Prasad Sinha and P.C. Kapur for the Appellant.
B. Datta, Additional Solicitor General, M.S. Rao, C. Ramesh and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, by special leave, preferred against the order dated July 3, 1986, of the Division Bench of the Patna High Court in C.W.J.C. No. 2823 of 1986 raises a substantial question as to the scope and content of the procedural safe guards in Section 130 of the Indian ( 'Act ') in the conduct of the Courts Martial.
The High Court dismissed, in limine, the appellant 's writ petition, under Article 226, challenging the proceedings dated March 30, 1985, of the Summary Court Martial imposing the punishment of dismissal from service and a sentence of an year 's rigorous imprisonment on the appellant.
Appellant, Ranjit Thakur, joined the Armed Services on September 7, 1972, and was, at the relevant time, a Signal Man in "4, Corps operating Signal Regiment." Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment.
On March 29, 1985, appellant was already serving out a sentence of 28 days ' rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers.
Appellant is stated to have sent representation complaining of ill treatment at the hands of Respondent 4 directly to the higher officers.
Appellant was punished for that by Respondent 4.
Appellant was held in the Quarter guard Cell in handcuffs to serve that sentence of rigorous imprisonment.
While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by Respondent 4.
The nature of this offence had better be excerpted from the charge sheet itself: "The accused No. 1429055 M Signalman Ranjit Thakur of 517 4 Corps operating Signal Regiment is charged with Section 41(2) Disobeying a lawful command given by his superior officer Section 41(2) In that he at 15.30 hrs.
On 29.5.1985 when ordered by JC 10625 lP Sub Ram Singh, the orderly officer of the same Regiment to eat his food, did not do so.
" To try this offence a Summary Court Martial was assembled the very next day i.e. March 30, 1985.
Respondent 4 and 2 others were on the Court Martial.
Some witnesses were examined.
Appellant is stated to have pleaded guilty.
A sentence of rigorous imprisonment for one year was imposed, in pursuance of which appellant was removed immediately to the civil prison at Tejpur to serve out the sentence.
Appellant has served out the sentence.
He was also dismissed from service, with the added disqualification of being declared unfit for any future civil employment.
The representation of the appellant to the confirming authority under Section 164 of the was rejected by General of ficer Commanding on 24.5.1985.
The High Court, however, persuaded itself to dismiss, in limine, appellant 's writ petition challenging the proceedings of the Summary Court Martial.
We have heard learned counsel on both sides.
The matter was adjourned on two earlier occasions on the submission of the learned Additional Solicitor General, that the question whether a lesser punishment was warranted was engaging the attention of the appropriate authorities.
Apparently, nothing came out of it.
F The submissions of Shri Sinha, in support of the appeal, admit of being formulated thus: (a) (i) The proceedings of the Court Martial are vitiated by non compliance with the mandate of Section 130(1) of the in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section; (ii) The proceedings of the Court Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings; H 518 (b) In as much as the appellant was then serving a sentence of rigorous imprisonment, he was not in "active service" and that no question of disobeying any lawful command could at all arise; (c) Appellant 's refusal, while serving a sentence to accept food did not amount to disobedience, under Section 41, of any lawful command of a superior officer in such manner as to show a wilful defiance of authority; (d) At all events, the punishment handed down is so disproportionate to the offence as to amount, in itself to conclusive evidence of bias and vindictiveness.
Re: contention (a): The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the was complied with.
Section 130 provides: "130(1) At all trials by general district or summary general court martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.
(2)If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection.
" The proceedings do not indicate this was not disputed at the hearing that appellant was asked whether he objects to be tried by any officer, sitting at the Court Martial.
This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial.
The "" constitutes a special law in force conferring a special jurisdiction on the Court Martial prescribing a special procedure for the trial of the offences under the ' '.
Chapter VI of the ' ' comprising of sections 34 to 68 specify and define the various offences under the ' '.
Sections 7] to 89 of Chapter VII specify the various 519 punishments.
Rules 106 to 133 of the Army Rules 1954 prescribe the procedure of, and before, the Summary Court Martial.
The and A the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts Martial.
The procedural safe guards contemplated in the must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court Martial and the severity of the consequences that visit the person subject to that jurisdiction.
The procedural safe guards should be commensurate with the sweep of the powers.
The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute.
The oft quoted words of Frankfurter, J. in Vitarelli vs Seaton, 359 U.S.535 are again worth re calling; ". if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed . . . . . . . .
This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so.
He that takes the procedural sword shall perish with that sword.
E "The history of liberty" said the same learned Judge "has largely been the history of observance of procedural safeguards.
" ; We are afraid, the non compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings.
lndeed it has been so held by this Court in Prithvi Pal Singh vs Union of India, AIR 1982 SC 1413 where Desai, J referring to the purpose of section 130 observed: ". .Whenever an objection is taken it has to be recorded.
In order to ensure that anyone objected to does not participate in disposing of the objection . . . .
This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection.
H 520 . .
The provision conferring a right on the accused to object to a member of the Court Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court Martial.
This is pre eminently a rational provision which goes a long way to ensure a fair trial.
" What emerges, therefore, is that in the present case there is a non compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court Martial are rendered infirm in law.
This disposes of the first limb of the contention (a).
The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4.
The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way.
It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith.
A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non judice".
(See Vassiliadas vs Vassiliades AIR 7.
As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party.
The proper approach for the judge is not to look at his own mind and ask himself, however, honestly.
"Am I biased? "but to look at the mind of the party before him.
Lord Esher in Allinson vs General Council of Medical Education and Registration, l at 758 said: "The question is not, whether in fact he was or was not biased.
The Court cannot inquire into that . . . . .
In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public 521 policy requires that, in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased.
" In Metropolitan Properties Co. (F.G.C.) Ltd. vs Lannon, ; , at 599, Lord Denning M.R. Observed: B ". in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity.
It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other.
The court looks at the impression which would be given to other people.
Even if he was as impartial as could be never theless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit . . ".
D Frankfurter J in Public Utilities Commission of the District of Columbia vs Pollack ; at 466) said: "The judicial process demands that a judge move within the frame work of relevant legal rules and the court covenanted modes of thought for ascertaining them.
He must think dispassionately and submerge private feeling on every aspect of a case.
There is a good deal of shallow talk that the judicial robe does not change the man within it.
It does.
The fact is that on the whole judges do lay aside private views in discharging their judicial functions.
This is achieved through training, professional habits, self discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested.
But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware.
When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges refuse themselves.
They do not sit in judgment . ".
Referring to the proper test, Ackner LJ in Regina vs Liverpool City Justices, Ex parte Topping [1983] I WLR 119 said: H 522 "Assuming therefore, that the justices had applied the test advised by Mr. Pearson Do I feel prejudiced? then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow." Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the Courts Martial rendered the proceedings coram non judice.
Re: contention (b): The mere circumstance that the appellant was, at the relevant point of time, serving a sentence of imprisonment and could not therefore, be said to be in 'active service ' does not detract from the fact that he was still "a person subject to this .
" This is clear from the second clause of Section 41(2) which refers to offences committed when not in 'active service '.
The difference is in the lesser punishment contemplated.
We are, therefore, unable to appreciate the appositeness of this contention of Shri Sinha.
Re: contention (c): The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces.
Every aspect of life of a soldier is regulated by discipline.
Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority.
To say that, a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter.
Mere in action need not always necessarily be neutral.
Serious acts of calumny could be done in silence.
A disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority.
But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter productive and even by itself be subversive of discipline.
Appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers.
However, it is not necessary in this case to decide contention (c) in view of our finding on the other contentions.
Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process".
The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial.
But the 523 sentence has to suit the offence and the offender.
It should not be A vindictive or unduly harsh.
It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.
The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognised grounds of judicial review.
In Council of Civil Service Unions vs Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said: ".
Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review.
The first ground l would call 'illegality '.
the second irrationality ' and the third 'procedural impropriety '.
That is not to say that further development on a case by case basis may not in course of time add further grounds.
I have in mind particularly the possible adoption in the future of the principle of 'proportionality ' which is recognised in the administrative law of several of our fellow members of the European Economic Community . . . . .
E In BhagatRam vs State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held: "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
The point to note, and emphasise is that all powers have legal limits.
In the present case the punishment is so strikingly disproportionate as to call for and justify interference.
It cannot be allowed to remain uncorrected in judicial review.
In the result, for the foregoing reasons, the appeal is allowed, the order of the High Court set aside, the writ petition preferred in the High Court allowed and the impugned proceedings of the 524 Summary Court Martial dated March 30, 1985, and the consequent order and sentence are quashed.
The appellant is entitled to and shall be reinstated with all monetary and service benefits.
There will, however, be no order as to costs.
N.P.V. Appeal allowed.
[/INST]% The appellant, a Signal Man in a Signal Regiment of the Armed Services, while serving out a sentence of 28 days ' rigorous imprisonment imposed on him by the Commanding officer of the Regiment respondent No. 4, for violating norms for presenting representations to higher officers, was alleged to have committed another offence by refusing to eat his food on March 29, 1985 when ordered to do so.
He was charged under section 41(2) of the for disobeying a lawful command given by his superior officer.
A sentence of rigorous imprisonment for one year was imposed by a Summary Court Martial consisting of respondent No. 4 and others.
He was removed to the civil prison and he served out the sentence.
The appellant 's representation to the confirming authority under section 164 of the Act was rejected by the General officer Commanding on May 24,1985.
The appellant 's writ petition challenging proceedings of the Summary Court Martial was dismissed in limine by the High Court.
513 In the appeal by special leave, it was contended on behalf of the appellant that the proceedings of the Court Martial were vitiated (i) by a non affording of an opportunity to challenge the constitution of the Summary Court Martial under section 130(1); (ii) by bias on the part of the respondent No. 4 who participated in and dominated the proceedings; (iii) by awarding a punishment so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness; and (iv) by ignoring that as the appellant was then serving out an earlier sentence he could not be need to be in active service so as to be amenable to disciplinary jurisdiction and that the appellant 's refusal, while already serving a sentence, to accept food did not amount to disobedience under section 41, of any lawful command of a Superior officer.
Allowing the appeal, ^ HELD: 1.1 The Indian constitutes a special law in force conferring a special jurisdiction on.
the Court Martial prescribing a special procedure for the trial of the offences under the Act.
The Act and Rules constitute a self contained Code specifying offences and the procedure for detention, custody and trial of the offenders by the Court Martial.
[518G H; 519A] 1.2 The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court Martial and the severity of the consequences that visit the person subject to that jurisdiction.
The procedural safeguards should be commensurate with the sweep of the powers.
The wider the power, the greater the need for the restraint in its exercise ad correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute.
[519B C I 1.3 Non compliance with the mandate of section 130 is an infirmity which goes to the root of jurisdiction and without more, vitiates the proceedings.
[519F] Prithvi Pal Singh vs Union of India, AIR 1982 SC 1413 relied on.
Vitarelli vs Seaton, ; referred to.
514 2.1 It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons.
acting fairly and without bias and in good faith.
A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice '.
[520D E] Vassiliades vs Vassiliades, AIR 1945 PC 38 referred to.
2.2 As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party.
The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased"? but to look at the mind of the party before him.
[520F] Allinson vs General Council of Medical Education and Registration, at 758; Metropolitan Properties Co. (F.G.C.) Ltd. vs Lannon, ; d 599; Public Utilities Commission of the District of Columbia vs Pollack, ; at 466 and Regina vs Liverpool City Justices, Ex parte Topping, referred to.
Having regard to the antecedent events, the participation of respondent No. 4 in the Courts Martial rendered the proceedings Coram non judice.
[522B] 3.
The mere circumstance 'that the appellant was at the relevant point of time, serving a sentence of imprisonment and could not, therefore, be said to be in 'active service ' does not detract from the fact that he was still a person subject to the Act, as is clear from the second clause of section 41(2) which refers to offences committed when not in 'active service ', the difference being in the lesser punishment contemplated.
[522C D] 4.
Every aspect of life of a soldier is regulated by discipline.
Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority.
To say that a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter.
Mere in action need not always necessarily be neutral.
Serious acts of calumny could be done in silence.
A disregard of a direction to accept food might assume the 515 complexion of disrespect to, and even defiance of authority.
But an unduly harsh and cruel reaction to the expression of the injured feelings may he counter productive and even by itself be subversive of discipline.
[522E F] In the instant case, appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers.
[522G] 5.
Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process".
The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial.
But the sentence has to suit the offence and the offender.
It should not be vindictive or unduly harsh.
It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.
The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognised grounds of judicial review.
All powers have legal limits.
[522G H; 523A C] Council of Civil Service Unions vs Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 HL and Bhagat Ram vs State of Himachal Pradesh, A.I.R. 1983 SC 454 referred to.
In the instant case, the punishment is so strikingly disproportionate as to call for and justify interference.
[523G] The Court order set aside.
The writ petition in the High Court allowed, and the impugned proceedings of Summary Court Martial and the consequent order and sentence quashed.
Appellant entitled to be reinstated with all monetary and service benefits.
[523H, 524A] (Note: on point 1.3 the finding is to be read with and subject to the subsequent order dated 10.8.88).
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<s>[INST] Summarize the judgementCivil Appeal No. 1442 of 1986 From the Judgment and Order dated 5.10.1984 of the Bombay High Court in Writ Petition No. 4063 of 1984.
S.B. Bhasme and M.A. Firoz for the Appellant.
V.A. Bobde.
A.K. Sanghi and Shyam Murlidhar for the Respondents.
The Judgment of the Court was delivered by RAY J.
This application for special leave involves a very short but very important and substantial question of law namely whether a court while hearing writ petitions is under an obligation to pass a speaking order an order recording in brief at least the reasons which weighed with the court in determining the salient questions raised by the parties to the action while dismissing or rejecting the writ petition in order to enable the parties to know the reasons for such order, more particularly when there is provision for appeal including appeal on special leave to this Court under Article 136 of the Constitution of India to apprise the appellate court of the reasons of the order in order to conform the basic principles of justice and fair play and as well as the rule of law which pervades our constitutional system and also in consonance with the principles of natural justice.
On this vital ground we 461 deem it just and proper to grant special leave and accordingly special leave granted.
The facts of the case in brief are inter alia that the petitioner a B.Sc.
with 2nd Class honours, was appointed as an assistant Teacher in 195 I in the New English Institute Girls High School conducted and managed by a registered society named New Education Institute, the respondent No. 1.
The petitioner was transferred in New High School in June 1953.
The petitioner passed the Secondary Teacher 's Certificate Examination and he also passed the Diploma of Education Examination conducted by Basic Training Centre, Dhule.
This diploma is considered as equivalent to Bachelor of Education Degree for the purpose of considering suitability for additional benefits.
The petitioner was promoted as supervisor in the same school in 1961 and thereafter From June 1968 he was working as Principal till his reversion by a resolution of the managing committee of the Institute dated October 28.
The petitioner challenged the said resolution of reversion in a suit being regular Civil Suit No. 755 of 1973.
The said suit was dismissed.
The petitioner challenged the said degree of dismissal in Civil Appeal No. 107 of 1979.
The appellate court allowed the appeal on reversing the degree of the trial court holding inter alia that the order of reversion was illegal and bad and the petitioner was entitled to have all the benefits and emoluments as principal of the said institution.
The opposite party No. 1 preferred a Second Appeal No. 162 of 1981 in the High Court of Judicature at Bombay which is pending for hearing.
During the pendency of the said appeal the opposite party No. 1 commenced a departmental enquiry against the petitioner under the provisions of Clause 77.3 of Secondary School Code.
A notice to show cause was issued to the petitioner wherefrom it would appear that the said proceeding mainly related to mistakes in accounting in matters pertaining to the society and not relating to the school.
The Enquiry Committee on 7.4.1975 recommended the termination of the petitioner 's services.
Against that recommendation the petitioner filed an appeal to the Deputy Director of Education, Nasik, the respondent No. 4.
The respondent No. 4 by his order dated 27.12.1975 was of the opinion that the order terminating service of the petitioner was disproportionate to the findings recorded by the Enquiry Committee and directed that the petitioner 's service should not be terminated till the Civil Court would decide the suit.
This order of respondent No. 4 was challenged by the management in an appeal filed to the Director of 462 Education.
Though it was submitted that the said appeal was not maintainable under the said Secondary School Code, the Joint Director of Education however after hearing allowed the said appeal by his order dated 6.9.1979 holding that all the charges levelled against the petitioner were of account matters.
He further held that the management was equally responsible in as much as it left financial matters pertaining to the management of the society to the Headmaster and his clerks.
Since it was not the duty of the Headmaster he could not be held responsible in management of accounts in the capacity of Headmaster.
Some of the charges pertaining to the duties as Head Master had been fully proved and some partly against the petitioner.
To be guilty under a single charge pertaining to financial matters is very serious.
The Joint Director, therefore, held that the recommendations made by the Enquiry Committee regarding the termination of the service of the petitioner had to be upheld.
The petitioner, thereafter, challenged the impugned order in writ petition No. 1837 of 1980 before the High Court of Judicature at Bombay.
On 12.8.1980 the writ petition was rejected by merely re cording the order, 'rejected '.
No reasons whatsoever were recorded which impelled the court to reject the petition.
The petitioner, thereafter, brought an action being Civil Suit No. 199 of 1981 in the Court of Civil Judge, Senior Division, Nasik, which is pending for hearing.
During the pendency of these proceedings the management again commenced an enquiry under the provisions of Clause 77.3 of the Secondary Schools Code.
This enquiry was completed without any compliance of the principles of natural justice in as much as the petitioner was not served with the chargesheet by the Enquiry Committee nor his nominee one Mr. R.G. Kunte, a teacher, was allowed to participate in the proceedings of the Enquiry Committee.
It was also alleged that out of 75 documents which the petitioner demanded inspection of only 25 documents were given inspection and the Enquiry Committee merely supplied him its findings without giving copy of summary of the proceedings of the Enquiry Committee.
The findings recorded by the Enquiry Committee was received by the petitioner on 26.4.1979 recommending termination of his service from the post of Assistant Teacher.
The management also, sent its order terminating the petitioner 's service and this was received by him on 26.4.1979.
It was submitted that the entire procedure adopted by the Enquiry Com 463 mittee was in violation of Clause 77.3 of Secondary Schools Code and in fact the enquiry was exparte.
Petitioner prayed for setting aside the order of the Enquiry Committee and for allowing the appeal.
The Deputy Director of Education, Nasik without giving any hearing to the petitioner sent a letter dated 12.2.1980 informing the petitioner that under instruction from the Director of Education the decision of termination of service on the basis of the first enquiry held by the management of the Institute against him being upheld by the Director of Education it was not necessary to entertain his appeal against the decision of the enquiry subsequently held.
The appeal was, therefore, filed.
The respondent No. 4, the Deputy Director of Education, thus did not at all consider and decide the appeal after hearing the parties including the petitioner.
The petitioner then made a representation to the Government by letter dated 8.4.1981 to decide the appeal in accordance with law.
The government by letter dated 24.4.1981 informed the petitioner that his appeal and his letter with the enclosures had been forwarded to the School Tribunal for hearing of the appeal and deciding it.
This School Tribunal dismissed the said appeal without giving any decisions on merits.
Against the order of the School Tribunal the petitioner filed a writ petition No. 4063 of 1984 before the High Court, Bombay.
This writ petition was rejected by recording the following order: "Heard.
In view of the earlier rejection of W.P. as well as the application to file appeal to Supreme Court, this W.P.is also rejected.
Aggrieved by the said judgment the petitioner filed the instant petition for special leave to appeal in this Court.
lt was pleaded in the special leave petition that the third enquiry proceeding was commenced by the management under the provisions of Clause 77.3 of the Secondary School Code.
During the pendency of the aforesaid proceedings it was further pleaded that the enquiry committee while proceeding with the enquiry arbitrarily violated the principles of natural justice as well as the provisions of Clause 77.3 of the said code.
The Headmaster who was biased against the petitioner was appointed as one of the members of the Enquiry Com 464 mittee and he did not permit the petitioner 's nominee to be.
present in the enquiry which was held exparte.
The petitioner was asked by the opposite party No. 1, the New Education Institute, by its letter dated 15.1.1979 to nominate his representative.
The petitioner by his letter dated 29.1.1979 enquired of the management whether his nominee should be a Headmaster or an Assistant Teacher or a member of the Governing Council as the charges related to his actions as Headmaster as well as Assistant Teacher.
No reply was received by the petitioner to this letter; on the other hand an intimation was received by him on February 28, 1979 about the formation of the Enquiry Committee.
Immediately, he nominated Mr. R.G. Kunte as his nominee in the Enquiry Committee.
The Enquiry Committee did not permit Mr.
R.G. Kunte to be associated with the enquiry and it did neither send any chargesheet to the petitioner nor did it supply him the proceedings of the Enquiry Committee.
It merely communicated to the petitioner its findings recorded on 25.4.1479 and the same was received by the petitioner on 26.4.1979 whereby the service of the petitioner as Assistant Teacher was terminated.
The appeal filed by the petitioner against the said order to the respondent No. 4 Deputy Director of Education, Nasik was also not heard and decided after giving hearing to the petitioner.
But respondent No. 4 merely communicated by his letter dated 12.2.1980 to the petitioner that as the decision of termination by the management on the basis of the first enquiry had been upheld, so the appeal was filed.
It was urged on behalf of the petitioner that the representation made by him to the Government was sent to the School 's Tribunal with a direction to hear the appeal of the petitioner.
The School 's Tribunal dismissed the appeal without at all considering and determining the relevant questions involved in the appeal by simply holding that since writ petition against the earlier order of termination of service of the petitioner was rejected by the High Court, the petitioner had no right to prefer any appeal to this Tribunal for agitating the same question though the appeal was filed against the subsequent order of termination made by the managing committee of the Institution.
It was also urged on behalf of the petitioner that the Enquiry Committee was biased against the petitioner and one of the nominee; in the Enquiry Committee was the Headmaster of the Institute who was the original complainant against the petitioner and therefore he was nominated by management to act as a Judge of his own cause.
It was also submitted that the High Court of Bombay did not at all consider and decide both 465 the writ petitions i.e. the writ petition No. 1837 of 1980 and writ A petition No. 4063 of 1984 on merits which were dismissed by recording the laconic order 'rejected '.
No speaking order was made assigning any reason whatsoever for rejecting the aforesaid two writ petitions which involved substantial questions of law and facts.
It is a cardinal principle of rule of law which governs our policy that the Court including Writ Court is required to record reasons while disposing of a writ petition in order to enable the litigents more particularly the aggrieved party to know the reasons which weighed with the mind of the Court in determining the questions of facts and law raised in the writ petition or in the action brought.
This is imperative for the fair and equitable administration of justice.
More so when there is a statutory provision for appeal to the higher court in the hierarchy of courts in order to enable the superior court or the Appellate Court to know or to be apprised of the reasons which impelled the court to pass the order in question.
This recording of reasons in deciding cases or applications affecting rights of parties is also a mandatory requirement to be fulfilled in consonance with the principles of natural justice.
It is no answer at all to this legal position that for the purpose of expeditious disposal of cases a laconic order like 'dismissed ' or 'rejected ' will be made without passing a reasoned order or a speaking order.
It is not, however, necessary that the order disposing of a writ petition or of a cause must be a lengthy one recording in detail all the reasons that played in the mind of the court in coming to the decision.
What is imperative is that the order must in a nutshell record the relevant reasons which were taken into consideration by the Court in coming to its final conclusions and in disposing of the petition or the cause by making the order, thereby enabling both the party seeking justice as well as the superior court where an appeal lies to know the mind of the court as well as the reasons for its finding on questions of law and facts in deciding the said petition or cause.
In other words fair play and justice demands that justice must not only be done but must seem to have been done.
It is pertinent to refer in this connection some of the decisions rendered by this Court.
In Mahabir Prasad vs State of M.P., ; at 13()4 it has been observed as follows: "opportunity to a party interested in the dispute to present his case on questions of law as well of fact, ascertainment of facts from materials before the Tribunal after disclosing 466 the materials to the party against whom it is intended to use them, and adjudication by reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi judicial determination.
It must appear not merely that the authority entrusted with quasi judicial authority has reached a conclusion or the problem before him, it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution.
Satisfactory decision of a disputed claim may be reached only if it be supported by most cogent reasons the appeal to the authority.
Recording of reasons in support of a decision on a disputed claim by a quasi judicial authority ensures that the decision is reached according to law as is not the result of caprice, whim or fancy or reached on the grounds of policy or expediency.
A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim if the order is subjected to appeal, the necessity to record reasons in greater for with out recorded reasons, the appellate authority has no mate rial on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.
" This decision was rendered in connection with the cancellation of the license of a wholesale distributor in sugar under U.P. Sugar Dealer 's Licensing order, 1962, by the District Magistrate and the rejection of the appeal by the State Government without recording any reasons.
The above decision referred to in the case of Madhya Pradesh Industries Ltd. vs Union of India Ors., ; where it has been observed that the practice of the executive authority dismissing statutory appeals against order which seriously prejudice the rights of the aggrieved party without giving reasons is a negation of rule of law.
Similar observations have been made in the case of Mahabir Jute Mills vs Shibbon Lal, A.l.
R. at 2060.
The same view was also reiterated in Siemen Engineering & Manufacturing Co. vs Union of India, ; and Bachhan Singh vs State of Punjab, AIR 1980 SC 1355 at 1358 paras 18 & 19 and it was observed that where an authority made an order in exercise of a quasi judicial func 467 tion it must record its reasons in support of the order it made.
Similar A view was expressed by this Court in the case of Rangnath vs Daulat Rao and others; , at 690 para 7.
Every quasi judicial order must be supported by reasons.
This well settled principle will undoubtedly apply to orders made by a Court in disposing of writ applications.
In the premises aforesaid the appeal is allowed and the judgment and order passed on 8.10.1984 in writ petition No. 4063 of 1984 is hereby set aside.
The Court below is directed to dispose of the said writ petition in accordance with law after giving hearing to the parties and by passing a speaking order as expeditiously as possible preferably within a period of four months from the date of receipt of the records by the court below.
Let the records be sent to the court below forthwith.
There will, however, be no order as to costs.
A.P.J. Appeal allowed.
[/INST]The appellant, a temporary lady constable, was discharged from service by an order under Rule 12.21 Volume 7 of the Punjab Police Rules 1934 on the allegation that she was unlikely to prove an efficient police officer.
A representation made by her to the Deputy Inspector General of Police against that order was rejected.
A revision filed by the appellant against the latter order was dismissed.
A suit filed by her challenging the order of discharge as bad, arbitrary and against the principles of law was dismissed.
This order was confirmed by the District Judge and the High Court in appeal.
In the appeal to this Court by special leave it was contended for the appellant that the impugned order of discharge from service was made not in accordance with the said Rule, in accordance with the terms and conditions of the service, but was made by way of punishment on the ground of her misconduct, as found on the basis of the investigation of certain allegations behind her back, without giving her any opportunity of hearing in the enquiry or to cross examine the witnesses.
Allowing the appeal, the Court, ^ HELD: The impugned order of discharge, though couched in innocuous terms and stated to be made in accordance with the provisions of Rule 12.21, Vol.7 of the Punjab Police Rules, 1934, was really a camouflage for an order of dismissal from service on the ground of misconduct as found on an enquiry into the allegations behind her back.
It was penal in nature as it cast a stigma on the service career of the 501 appellant.
This order was made without serving the appellant any chargesheet without asking for any explanation from her without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross examine the witnesses.
It, therefore, contravenes article 311(2) of the Constitution and is liabie to be quashed and set aside.
[503F G; 504B; 506B C] P.L. Dhingra vs Union of India, [1958] SCR p. 828 at 862, K.H. Phadnis vs State of Maharashtra, [1971] SCR (Supp.)) p. 118, State of Bihar & Ors.
vs Shiva Bhikshuk Mishra, at 196, Shamsher Singh & Anr.
vs State of Punjab, [1975] 1 SCR p. 814 at 837 and Anoop Jaiswal vs Government of India & Anr., [1984] 2 SCR p. 453, referred to.
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<s>[INST] Summarize the judgementNo. 65 of 1962.
Petition under article 32 of the CoNstitution of India for the enforcement of Fundamental Rights.
A. section R. Chari, R. K. Garg avid K. R. Chaudhri, for the petitioners.
N. section Bindra and R. H. Dhebat, for the respondents.
October 11.
The judgment of the Court was delivered by SHAH, J.
Being in possession of evidence that the petitioners and others were concerned in the commission of offences of conspiracy to smuggle gold from foreign countries into thE port of Deogad in the District of Ratnagiri, contrary to the provisions of the Sea Customs Act and the Foreien Exchange Regulation Act, P. N. Kalyankar, Sub Inspector.of Customs and Central Excise, arrested the petitioners and produced them before the judicial Magistrate F Class, 575 Deogad.
On December 29, 1961, the Government of Maharashtra promulgated a notification in exercise of the powers conferred by section 14 of the Code of Criminal Procedure, 1898 (as amended by Bombay Act XXIII of 1951 in its application to the State of Maharashtra) appointing Mr. V. M, Gehani to be a Special judicial Magistrate having jurisdiction over the area comprising Greater Bombay and Ratnagiri District, and conferred upon him all the powers of a Presidency Magistrate in respect of the trial in the case involving the seizure of approximately 49,990 tolas of foreign gold and known as the "Deogad Gold Seizure Case. ' On January 10, 1962, the Government of Maharashtra gave consent in writing as required by section 196 A sub section (2) of the Code of Criminal Procedure to the institution of criminal proceedings against the petitioners and eight others for offences punishable "under section 120B of the Indian Penal Code, 1860 read with section 167(81) of the (as amended) and section 120B of the Indian Penal Code read with section 167(81) of the (as amended) and section 8(1) of the Foreign Exchange Regulation Act.
1947 (as amended) and section 120B of the Indian Penal Code read section 8(1) with and section 23 of the Foreign Exchange Regulation Act, 1947 (as amended)".
Thereafter H. R. Jokhi, Assistant Collector of Customs & Central Excise, Marine & Prevention Division, Collectorate of Central Excise Bombay instituted a complaint in the Court of the Special Magistrate appointed under the Notification dated December 29, 1961, against 16 persons (including the petitioners) alleging that they were parties to a conspiracy at Bombay, janjira, Dabhol and Deogad (the latter three places being in the District of Ratnagiri) and other places to smuggle large quantities of gold into India, with a view to evade or attempt to evade payment of duty thereon and to evade or attempt to evade the prohibition and 576 restrictions in force relating thereto during the period from about October 1959 to the end of April 1961.
or thereabout in breach of the provisions of the and the Foreign Exchange Regulation Act, 1947, and that the said persons had in pursuance of the "conspiracy and with continuing purpose and design" in or about the month of April 1961 acquired or were concerned in importing and acquiring possession, contrary to the and the Foreign Exchange Regulation Act, gold totalling 49,990 tolas valued at over Rs. 70,00,000/ .
The petitioners applied to the Special Magistrate that they be tried at Deogad or at Ratangiri the headquarters of the District, for they were permanent residents of Deogad carrying on their respective occupations at Deogad, that they had already made their individual arrangements for their defence at Deogad and that it would be just and convenient that their trial should take place in the District of Ratnagiri.
The Magistrate rejected their appli cation.
The petitioners then moved the High Court of judicature at Bombay praying for an order that the case against the petitioners be transferred for trial to the court of some judicial Magistrate at Deogad or at Ratnagiri competent to try the case : in the alternative the petitioners prayed that the Special Magistrate Mr. Gehani be directed to try the said case either at Deogad or at Ratnagiri at which place all 'facilities ' were available.
The High Court dismissed their application.
The petitioners then moved this Court under article 32 of the Constitution for a writ of certiorari or other appropriate writ or direction quashing the Notification dated December 29, 1961., issued by the Government of Maharashtra or in the alternative declaring section 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951 ultra vires and void and for an order that the case be heard at Deogad or at Ratnagiri in the State of Maharashtra by any Magistrate competent to enquire into or try the case.
By this petition 577 the petitioners submitted that section 14 of the Code of Criminal Procedure as amended by the Bombay Legislature by Act 23 of 1951 and the Notification dated December 29, 1961, issued by the Government of Maharashtra appointing Mr. Gehani as Special judicial Magistrate and investing him with the powers of a Presidency Magistrate, infringed article 14 of the Constitution.
Sub section (1) of section 14 of the Code as amended, in so far as it is material, provides "14.
Special Magistrates.
The State Government may in consultation with the High Court, confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the Official Gazette, all or any of the powers conferred or conferrable by or under this Code on a judicial Magistrate in respect to particular cases or to a particular class or classes of cases, or in regard to cases generally in any local area." By section 6 A which was also added by Bombay Act 23 of 1951 in the Code, constitution of different classes of ,Judicial Magistrates was provided, and under that head were included Presidency Magistrates.
The State Government was, under the amended Code, competent to appoint a person with the requisite qualifications a Special Magistrate and to confer upon him the powers conferred or conferrable under the Code on a judicial Magistrate in respect of a particular case or a particular class or classes of cases or in regard to cases generally in any local area.
Section 14 of the Code of Criminal Procedure as originally enacted prohibited the 578 appointment of a Special Magistrate to function in any local area within the Presidency towns, but that limitation upon the power of the State Government has, by the amendment made by Bombay Act 23 of 1951, been removed, and it is now open to the Government of Maharashtra to constitute a Special judicial Magistrate with power to function in any local area including Greater Bombay.
The expression ,local area ' includes any part of a State, and it may cover more than one District.
The Government of Maharashtra therefore could appoint Mr. Gehani a Special, ' judicial Magistrate, having jurisdiction over Greater Bombay and the District of Ratnagiri and could confer upon him the powers of a Presidency Magistrate in respect of the trial of the case known as the Deogad Gold Seizure Case.
In M. K. Gopalan vs The state of Madhya Pradesh the validity of section 14 of the Code of Criminal Procedure 1898 (V of 1898.) was challenged on the plea that it was void because it infringed the fundamental right of equality before the law guaranteed by article 14 of the Constitution.
This Court held that a law vesting discretion in an authority to appoint a Special Magistrate under section 14 of the Code of Criminal Procedure to try cases entirely under the normal Procedure cannot be regarded as discriminatory and is not hit by article 14 of the Constitution.
There is substantially no difference between the powers conferrable by section 14 of the Code as originally enacted and section 14 as amended by Bombay Act 23 of 1951.
Apart from certain procedural matters such as consultation with the High Court before entrustment of the said powers, the only difference made by the Bombay Act is that a Special Magistrate may be appointed even in respect of a Presidency town.
Section 14 contemplates that a Special 'Magistrate may be entrusted with powers which are conferrable by or under the Code on a judicial Magistrate.
A Presidency Magistrate being a Judicial Magistrate under (1) 579 section 6 A as added by the Bombay Legislature, powers conferrable on a Presidency Magistrate may lawfully be conferred upon a Special judicial Magistrate who has been appointed for the Presidency town with or without any additional locality.
Section 20 of the Code of Criminal Procedure provides that every Presidency Magistrate shall exercise jurisdiction in all places within the presidency town for which he is appointed, and within the limits of the port of such town and of any navigable river or channel leading thereto, as such limits are defined under the law for the time being in force for the regulation of ports and port dues.
There is, however, nothing in this section which detracts from the authority which may be exercised by the State Government under section 14 to appoint a Special judicial Magistrate in respect of a Presidency Town nor is there any prohibition against the investiture of powers of a Presidency Magistrate upon such Magistrate in respect of a locality outside the Presidency town so long as he has jurisdiction also over a Presidency Town.
On the principle of M. K. Gopalan 's case (1), section 14 of the Code of Criminal Procedure, as amended, cannot be regarded as infringing article 14 of the Constitution.
Validity of the Notification issued by the Government of Maharashtra directing the trial by Mr. Gehani who had jurisdiction both over the Greater Bombay area and the District of Ratnagiri may now be considered.
Relying upon the judgment of this Court in Bidi Supply Company vs The Union of India (2), it was submitted that the impugned Notification was unauthorised.
That was a case where an assessee who was ordinarily assessed to income tax by Officers within the town of Calcutta was informed by letter dated January 25, 1955, in pursuance of section 5 (7 A) of the Income tax Act, 1922 (Xl of 1922) as amended by Act XL of 1940 the assessment records of the assessee were transferred from the Income tax Officer, Calcutta to the Income (1) (2) ; 580 tax Officer, Special Circle, Ranchi in the State of Bihar and that he do correspond in future regarding the assessment proceedings with that Income tax officer.
The assessee had received no previous notice of the intention of the Income tax authorities to transfer the assessment proceedings from Calcutta to Ranchi, nor had he any opportunity to make any representation against the said decision.
The assessee challenged by a petition to this Court the validity of the order of transfer contending that it violated the equal protection clause of the Constitution.
Section 64 of the Income tax Act provides for the normal place of assessment of assesses.
By subsection (1) it provides that where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income tax Officer of the area in which that place is situate, or, where the business, profession or vocation is carried on in more places than one, by the Income tax Officer of tile area in which the principal place of his business, profession or vocation is situate.
In all other cases, in assessee shall be assessed by the Income tax Officer of the area in which he resides.
By subsection (5) of section 64 it is provided, inter alia, that the provisions of sub section
(1) and (2) shall not apply where by any direction given or any distribution or allocation of work made by the Commissioner of Income tax under sub section
(5) of section 5, or in consequence of any transfer made under sub section
(7A) of section 5, a particular Income tax Officer has been charged with the function of assessing that assessee.
This Court held in the Bidi supply Company 's case (1) that sub section 5 (7A) of section 5 as it stood at the material time contemplated transfer of a pending case for a particular year.
It was observed that "the provision that such a transfer may be made 'at any stage of the proceedings ' obviously postulates proceedings actually pending, and 'stage ' refers to a point in between the commencement and the termination of those proceedings.
Further the provision that such transfer shall not render necessary (1) ; 581 the reissue of notice already issued by the Income tax Officer from whom the case is transferred quite clearly indicates that the transfer contemplated by the sub section is the transfer of a particular case actually pending before an income tax Officer of one place to the Income tax Officer of another place.
" The decision of the Court turned on the meaning of the word 'case ' used in sub section 5(7A) as enacted by the Income tax Act Amendment Act, 1940 and this Court held that the expression 'case ' meant an assessment case of a particular year.
After this decision the Legislature intervened and by the Income tax Amendment Act 26 of 1956 it added an explanation that the word 'case ' in relation to any person whose name is specified in the order of transfer means all proceedings under the Income tax Act in respect of any year which may be pending on the date of the transfer, and includes all proceedings under this Act which may be commenced after the date of the transfer in respect of any year.
The principle of the case in Bidi Supply Company (1) has no relevance in considering the validity of the Notification issued under section 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951.
The assessee in the Bidi Supply Company 's case (1) obtained the benefit of a lacuna in the provisions of the Indian Income tax Act, there being apart from a provision for transfer of a pending case, no general power to transfer future assessment proceedings.
A Notification Under section 14 of the Code of Criminal Procedure is an order constituting a Special Magistrate with jurisdiction over a certain local area and with powers which are normally exercisable by a Judicial Magistrate.
The constitution of a Special Magistrate does not amount either directly or indirectly to a transfer of any 'case ': nor are there any such considerations present in that order as were pointed out by this Court in the Bidi Supply Company 's case (1) relating to the meaning of the word "case ' used in the Income tax Act, as would compel us to (1) ; 582 hold that a "case ' within the meaning of section 14 means a pending case only.
Under section 14 the State Government is competent to appoint a special Judicial Magistrate in respect of 'any particular case or a particular class or classes of cases or in regard to cases generally in any local area '.
The words used in section 14 must mean a case which is either pending or which may be instituted after the date of the constitution of the Special Magistrate.
It was then submitted that the Notification appointing a Special Magistrate, for trial of the intended complaint against the petitioners, having regard to the circumstances of this case, and conferring upon him the powers of a Presidency Magistrate operated discriminatively against the petitioners, for, it was said, other persons similarly situated as the petitioners were ordinarily liable to be tried by the Magistrate within whose jurisdiction the offence was alleged to be committed, and could not be required to go to a distance of more than three hundred miles from their normal place of residence to defend them selves.
It was urged that Mr. Gehani being a Presidency Magistrate for the trial of the case against the petitioners and others he would be sitting in Bombay where he normally functions, and it would result in great inconvenience to the petitioners to be called upon to attend the sittings of the Court in Bombay specially when there are Magistrates availa ble in Deogad who are competent to hear and decide the case against the petitioners.
By the Notification Mr. Gehani has been invested with the powers over Greater Bombay and Ratnagiri District.
His jurisdiction therefore extends over the whole of the Greater Bombay area and the District of Ratnagiri.
There is no provision in the Code of Criminal Procedure which enjoins upon a Magistrate the duty to hold his sitting in any particular place.
Under section 9(2) of the Code of Criminal Procedure the State Government is required to direct at what place or 583 places the Court of Session shall ordinarily hold its sitting, but if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the sessions division, it may with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
There is, however, no similar provision in respect of the sittings to be held by Magistrates.
The Special judicial Magistrate Mr. Gehani having the power therefore to sit at any place within his local area as defined by the terms of his appointment, this Court cannot speculate as to what place Mr. Gehani will function in the exercise of his jurisdiction.
The question is one for his discretion.
It may be remembered that the petitioners had moved the High Court of Bombay asking for the transfer of the case from the Court of Mr. Gehani to any Magistrate functioning in the District of Ratnagiri, because of the alleged ground of inconvenience, and that application was rejected by the High Court.
It cannot be now urge by the petitioners that the trial at Bombay is inconvenient to them and may prejudice a fair trial.
It is true that under the Code of Criminal Procedure "every offence shall ordinarily be enquired into and tried by a Magistrate of the local area in whose jurisdiction it was committed" but the charge in this case against the accused is in respect of a conspiracy at Bombay, Deogad, Dabhol, janjira and other places to commit offences under the and the Foreign Exchange Regulation Act and also of commission in pursuance of the conspiracy of substantive offences under those Acts.
It is the prosecution case that importation of gold contrary to law took place in the area of Deogad port whereas the offenders conspired at different places including Bombay.
By designating a Special Magistrate who would have jurisdiction both over the place where the offenders are alleged to have conspired and the place where offences were 584 actually committed, the State has taken care to see that the trial of the case is held by a Magistrate who has territorial jurisdiction in both areas.
It is not suggested that the Notification was issued for any ulterior purpose.
The State has having regard to the special circumstances constituted a Special Magistrate, as it was entitled to, and the Notification does and even suggest the place where the Magistrate is to hold his sittings.
The ground of inconvenience in support of the plea of discrimination cannot therefore be sustained.
It is urged that against the order of conviction which may be passed by Mr. Gehani whole is invested with the powers of a Presidency Magistrate an appeal would lie only to the High Court whereas if the case were tried before a Magistrate of Ratnagiri District an appeal would lie to the Court of Session and a further revision application to the High Court.
This it was pointed out made a substantial difference of procedure between persons similarly situated.
It is true that if the complaint was filed in the Court of Magistrate having jurisdiction over Deogad alone, as it could lawfully be filed, an appeal would, against an order of conviction, lie to the Court of Session, Ratnagiri and an application in the exercise of revisional jurisdiction to the High Court from the order of the Court of Session.
But it is difficult to hold that this amounts to any discrimination.
Apart from the fact that the trial by a special Magistrate and an appeal directly to the High Court against the order of the Magistrate may be regarded normally as more advantageous to the accused persons, the distinction between Courts to which the appeal may lie arises out of the constitution of the Special Magistrate and not any special procedure evolved by the Notification.
On the allegation made in the complaint, the complainant could lawfully institute proceedings in the Court of a Presidency Magistrate at Bombay or of any competent Magistrate in the District of Ratnagiri.
585 Such Magistrates would by virtue of section 182 of the Code of Criminal Procedure entertain the complaint and appeals from orders of conviction recorded by them would lie to the High Court, or the Court of Session, according as the Magistrate, trying the case was a Presidency Magistrate, or a judicial Magistrate of the First Class.
The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case, and not from any unequal dealing by the ' executive constituting the Courts of the Magistrates.
It is because Powers exercisable by a Presidency Magistrate are conferred upon the Special Magistrate, as they may lawfully be conferred, that the incidental right of appeal, which is prescribed, by the statute is exercisable in the High Court and not in the Court of Session.
We do not think that there is any discrimination practised by the Notification constituting a Special Magistrate for the trial of the case against the petitioners and others.
The petition therefore fails and is dismissed.
Petition dismissed.
[/INST]The petitioners challenged the validity of the orders issued by the State of Mysore under article 13(4) of the Constitution on July 10, 1961, and July 31, 1962.
The petitioners contended that they had applied for admission to the Pre Professional Class in Medicine in the Karnatak Medical College, Hubli and they would have secured admission to the said medical college but for the reservation directed to be made by the orders mentioned above.
They contended that the above mentioned orders were ultra vires.
They prayed for an appropriate writ or order restraining the respondents from giving effect to those orders and requiring them to deal with their applications for admission on merits.
Held, that the petitioners were entitled to an appropriate writ or order as claimed by them and the respondents were restrained from giving effect to the above mentioned orders.
M. R. Balaji vs State of Mysore [1963] Supp. 1 S.C.R. 439, followed.
The impugned orders we quashed only with reference to the additional reservation made in favour of the socially and 476 educationally backward classes and so the respondents were at liberty to give effect to the reservation made in favour of the ' Scheduled Castes and Scheduled Tribes, which was not challenged at all.
The said reservation continues to be operative.
</s>
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<s>[INST] Summarize the judgementAppeal No. 76 of 1950.
Appeal from the Judgment and Decree of the High Court of Madras dated 18th April 1945, in 895 Appeals Nos.
56 and 192 of 1941 reversing in part the decree of the Court of the Subordinate Judge of Masulipatani in Original Suit No. 29 of 1937.
B.Somayya (C. Mallikarjuna Row, with him) for the appellant.
K.Rajah Aiyar (R. Ganapathy Aiyar , with him) for Respondent No. 1.
Respondent No. 10 appeared in person.
May 18.
The Judgment of the Court was delivered by MUKHERJEA J.
The appellant before us is the sixth defendant in a suit, commenced by the plaintiff respondent in the court of the Subordinate Judge at Masulipatam (being Original Suit No. 29 of 1937) for recovery of a sum of Rs. 99,653 annas odd by enforcement of a simple mortgage bond.
The mortgage bond is dated 28th September, 1930, and it was executed by defendant No. 1 for himself and as guardian of his two minor sons defendants 2 and 3 all of whom consti tuted together a joint Hindu family at that time.
The plaintiff mortgagee happens to be the son in law of defendant No. 1 and at the time of the execution of the mortgage the first defendant was indebted to a large number of persons including the mortgagee himself, and being hard pressed by his creditors requested the plaintiff to lend him a sum of Rs. 1,25,000 on the hypothecation of the properties in suit, to enable him to tide over his difficulties and discharge his debts.
The total consideration of Rs. 1,25,000 as stated in the deed is made up of the following items : (1)Rs.
13,065, which was the amount due on a promissory note executed in favour of the plaintiff by the first defendant on the 17th January, 1928.
(2)Rs. 13,285 due under another promissory note dated 18th August, 1930 executed by defendant No.1 in favour of the wife of the plaintiff and later on transferred by her to the plaintiff on 28th September, 30.
(3)Rs.
25,000 paid by the plaintiff by endorsing in favour of defendant No. 1 a cheque for that amount 896 drawn in his name by the Co operative Central Bank, Ramchandrapuram on the Central Urban Bank, Madras.
(4) Rs. 937 8 0, the amount paid in cash by plain tiff to defendant No.1 for purchasing stamps for the mortgage document.
(5) Rs. 72,712 8 0, the amount of future advances which the plaintiff promised to make from time to time to defendant No.1 according to his convenience.
The money lent was to carry interest at 7 1/2 % simple per annum and the due date of payment of the principal money was 30th September, 1933.
The interest would, however, have to be paid annually on the 30th of September every year, in default of which the whole of the principal and interest in arrears would become repayable immediately with interest at 9% compound per annum with yearly rests.
It was expressly stated in the mortgage deed that if the mortgagee was unable to advance the entire amount of Rs. 1,25,000, the terms set out above would apply to the amount actually advanced.
It appears that after the execution of the mortgage bond a sum of Rs. 3,000 only was paid by the mortgagee to defendant No.1 on 5th of November, 1930.
In the plaint, which was filed by the plaintiff on the 15th September, 1937, the total claim was laid at Rs. 99,653 annas odd, out of which Rs. 55,287 annas odd constituted the principal money as stated above and the rest was claimed as interest calculated at the rate of 9% per annum compound with yearly rests.
Besides the original mortgagors, who were defendants Nos. 1 to 3 in the suit, there were three other persons impleaded as parties defendants.
Defendant No. 4 was the Receiver in insolvency in whom the entire estate of the defendant No. 1 vested by reason of his being adjudged a bankrupt by an order of the District Judge of Kistna dated the 18th January, 1932 in Insolvency Proceeding No. 20 of 1931, started at the instance of another creditor of the first defendant.
Defendant No. 5 was a lessee in respect of the mortgaged properties under defendant No. 4, while the sixth defendant was the purchaser of all the mortgaged 897 properties from the Receiver in insolvency.
The Receiver, it seems, had put up all the suit properties to sale subject to the mortgage on 19th April, 1937, and they were knocked down to defendant No. 6 for the price of Rs. 1,340.
A registered deed I of sale was executed by the Receiver in favour of the purchaser on 20th January, 1939.
The defendants 1 to 3 did neither appear nor contest the suit.
Defendant No. 4 appeared in person but disclaimed any interest in the suit properties.
The defendant No. 5 contended that he was a lessee under defendant No. 4 for one year only and was not a necessary party to the suit at all.
The suit was really contested by defendant No. 6, the purchaser at the Receiver 's sale.
The defence taken by defendant No. 6 in his written statement was substantially of a two fold character.
It was pleaded in the first place that the bond in suit was a collusive document not supported by any consideration and was executed by defendant No. 1 in favour of his own son in law, with a view to shield his properties from the reach of his creditors.
The other contention put forward was that the interest claimed was penal and usurious.
After the passing of the Madras Agriculturists ' Relief Act in March, 1938, this defendant filed an additional written statement, with the permission of the court, in which he raised the plea that as an agriculturist he was entitled to the reliefs provided in that Act and that the mortgage debt should be scaled down in accordance with the provisions of the same.
The trial Judge by his judgment dated the 29th July, 1940, decreed the suit in part.
It was held that the mortgage bond was not a collusive document executed with the intention of defrauding the creditors of the mortgagor; it was a genuine transaction and was supported by consideration.
On the other point, the court held that defendant No. 6 was an agriculturist and was entitled to claim the reliefs under Madras Act IV of 1938.
After deducting all outstanding interest which stood discharged under section 8(1) of the 898 Agriculturists Relief Act, the principal money due to the creditor on that date was found by the trial court to be Rs. 42,870 annas odd.
This figure was arrived at by taking only the original amounts actually advanced on the two promissory notes mentioned above and further, deducting from them, the payments made by the debtor towards the satisfaction of the principals in each.
Thus a preliminary decree was made in favour of the plaintiff entitling him to recover a sum of Rs. 42,870 4 0 together with interest at 6 1/4 per annum from 1st October, 1937, to 1st November, 1940, the date fixed for payment under the preliminary decree.
In default, the whole amount was to carry interest at 6% per annum.
It may be mentioned here that the Subordinate Judge in deciding issue No. 3 held expressly that the provision relating to payment of compound interest at an enhanced rate in default of payment of the stipulated interest on the due dates was in the nature of a penalty and should be relieved against; but as the court scaled down the interest under Madras Act IV of 1938, it became unnecessary to consider in what manner this relief should be granted under section 74 of the Indian Contract Act.
Against this decision, two appeals were taken to the High Court of Madras, one by the plaintiff and the other by defendant No. 6.
The plaintiff in his appeal (being Appeal No. 56 of 1941) assailed that part of the judgment of the Subordinate Judge which gave the defendant No. 6 relief under the Madras Agriculturists ' Relief Act; while the appeal of the sixth defendant (being Appeal No. 192 of 1941) attacked the very foundation of the mortgage decree on the ground that the mortgage being a collusive and fraudulent transaction, the plaintiffs suit should have been dismissed in toto.
The defendants 2 and 3, although they remained ex parts during the trial in the first court, filed, in forma pauperig, a memorandum of cross objection challenging the decree of the Subordinate Judge on the ground that as their interest in the mortgaged properties did not pass to the defendant No, 6 by virtue of the Receiver 's sale, their right of 899 redemption remained intact and ought to have been declared by the trial Judge.
Both these appeals as well as the cross objection were heard together by a Division Bench of the High Court and they were disposed of by one and the same judgment dated the 18th of April, 1945.
The High Court affirmed the finding of the trial Judge that the bond in suit was supported by consideration to the extent of Rs. 55,287 8 0 as alleged in the plaint and that it was a valid and bona fide transaction.
The learned Judges held, differing from the trial court, that the defendant No. 6 was not entitled to claim any relief under the provisions of the Madras Agriculturists ' Relief Act, and that in any event the court below was not right in reducing the amount of the principal money from Rs. 55,287 8 0 to Rs. 42,870, there being no renewal of a prior debt so far as defendant No. 6 was concerned.
The court agreed in holding that the provision relating to payment of enhanced interest in case of default amounted to a penalty and reduced the rate of interest from 9% compound to 71 % compound with yearly rests.
Lastly, the High Court allowed the cross objection of defendants 2 and 3, being of opinion that their interest in the mortgaged properties could not vest in the Receiver on the insolvency of their father and that the defendant No. 6 could not acquire the same by virtue of his purchase from the Receiver.
The defendants Nos. 2 and 3 were, therefore, allowed the right to redeem the mortgaged properties along with defendant No. 6.
The result was that the plaintiff was given a decree for a sum of Rs. 55,287 8 0 with interest at 7 1/2 compound with yearly rests up to the date of redemption and subsequent interest was allowed at the rate of 6% per annum.
Interest was to be calculated from 28th September, 1930, on Rs. 52,287 8 0 and.
from 5th November, 1930, on the amount of Rs. 3,000.
Against this decree, the defendant No. 6 obtained leave to appeal to the Privy Council and because of the abolition of the jurisdiction of the Privy Council, the appeal has come before us.
900 Mr. Somayya, who appeared in support of the appeal, did not press before us the contention raised on behalf Of his client in the courts below that the mortgage was a fraudulent transaction or was void for want of consi deration.
He assailed the propriety of the judgment of the High Court substantially on three points.
His first contention is, that the decision of the High Court allowing a right of redemption to defendants 2 and 3 cannot stand in view of the amendment introduced by the Provincial Insolvency Amendment Act, 1948, which has been expressly made retrospective.
The second point taken by the learned counsel is that the defendant No. 6 should have been given relief under the Madras Agriculturists ' Relief Act and the debt should have been scaled down in accordance with the provisions thereof.
It is said that the defendant No. 6 was an agriculturist himself and even if he was not, the relief under Madras Act IV of 1938 was still available to him by reason of the original mortgagors being agriculturists.
The third and the last point urged is that in any event having regard to the finding arrived at by the High Court that the stipulation to pay compound interest at an enhanced rate was a penalty, adequate relief should have been granted against it and no compound interest should have been allowed at all.
The first point raised by the learned counsel, in our opinion, is well founded and must succeed.
There was some difference of judicial opinion as to whether the powers of a father under the Mitakshara law to alienate the joint family property including the interest of his sons in the same for discharge of an antecedent debt not contracted for illegal or immoral purposes vests in the Receiver on the adjudication of the father as an insolvent.
Under the Presidency Towns Insolvency Act, this power was held to vest in the Official Assignee under section 52(2) of the Act(1).
As regards cases governed by , it was held by a Full Bench of the Madras High Court that the father 's power to dispose of his son 's interest in the joint family property for satisfaction of his untainted (1) Sat Narain vs Sri Kishen, (1936) 63 I.A. 384.
901 debts was not "property" within the meaning of section 28 (2) (d) of the Provincial Insolvency Act(1) ; while a contrary view was taken by a Full Bench of the Patna High Court (2) .
The conflict has now been set at rest by the enactment of section 28A in the Provincial Insolvency Amendment Act of 1948 which came into force on the 12th April, 1948.
The new Section reads as follows : " The property of the insolvent shall comprise and shall always be deemed to have comprised also the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge.
" The language of the section indicates that its operation has been expressly made retrospective.
The result, therefore, is that the power of the defendant No. 1 to alienate the interest of his sons, the defendants 2 and 3, in the mortgaged properties for satisfaction of his antecedent debts, did pass to the Receiver as "Property" within the meaning of the and consequently OD a sale by the Receiver the interest of defendants 2 and 3 did vest in the sixth defendant, and he alone must be held competent to exercise the right of redemption.
The second point urged by Mr. Soinayya raises the question as to whether the appellant could claim relief under the Madras Agriculturists ' Relief Act.
The High Court decided this point against the appellant firstly on the ground that the appellant was not a debtor at the date of the commencement of the Act, he having acquired no interest in the equity of redemption at that time.
The other reason given is that the defendant No. 6 was not an agriculturist within the meaning of the Agriculturists ' Relief Act and although he was possessed of agricultural lands and hence prima facie came within the definition of an " agriculturist " as given in section 2 (ii) of (1) Ramasastralu vs Balakrishna Rao I.L.R. (2) Viswanath vs Official Receiver, I.L.R. (1936) 16 Pat, 60 (F.B.).
902 the Act, he was excluded from the definition by the operation of proviso (D) attached to the sub section.
So far as the first ground is concerned, section 7 of the Agriculturists ' Relief Act expressly lays down that " all debts payable by an agriculturist at the commencement of this Act, shall be scaled down in accordance with the provisions of this chapter".
The essential pre requisite to the application of the provisions of the chapter, therefore is the existence of a debt payable by an agriculturist on the date when the Act commenced, that is to say, on the 22nd March, 1938.
The learned Judges of the High Court were certainly right in saying that the sixth defendant was not a debtor on that date, as he did not become the owner of the equity of redemptin till the 20th of January, 1939, when the deed of sale was executed in his favour by the Receiver in insolvency.
But this by itself is not sufficient to disentitle the appellant to the privileges of the Agriculturists ' Relief Act.
It is not necessary that the applicant for relief himself should be liable for the debt on the date that the Act came into force.
The right to claim relief as is well settled by decisions(1) of the Madras High Court is not confined to the person who originally contracted the debt, but is available to his legal representatives and assigns as well; nor is it necessary that the applicant should be personally liable for the debt.
The liability of a purchaser of the equity of redemption to pay the mortgage debt undoubtedly arises on the date of his purchase; but the debt itself which has its origin in the mortgage bond did exist from before his purchase, and if it was payable by an agriculturist at the relevant date, the purchaser could certainly claim the privileges of the Act if he himself was an agriculturist at the date of his application.
The material question, therefore, is whether the mortgage debt was payable by an agriculturist on 22nd March, 1938 ? The appellant argues that it was payable by the mortgagors and they were certainly agriculturists.
We do not think that there is warrant for any such assumption on (1) Vide Periannia vs Sellappa, I.L.R. 903 the materials as they exist on the record.
The only issue before the trial Judge was, as to whether defendant No. 6 was an agriculturist.
There was neither any question raised nor any evidence adduced as to whether defendants Nos.
I to 3 were agriculturists as well.
In fact, this aspect of the case was not adverted to by the trial Judge at all.
Before the High Court it was argued on behalf of defendant No. 6 that even if he was not an agriculturist himself, yet if the defendants 2 and 3 were given relief as agriculturists, that would enure for his benefit as well and accordingly he invited the court to go into the question and hold that the original mortgagors were agriculturists.
This the learned Judges refused to do and dismissed this part of the claim of defendant No. 6 with these remarks: "In the present case, the mortgagors have not claimed such a benefit, nor have they adduced any evidence to show that they are agriculturists.
We therefore cannot accede to the request of the sixth defendant that the right of the mortgagors to relief should be investigated merely with the object of giving an accidental relief to the non agriculturist purchaser.
" As the point was not investigated at all, it is not possible for us to hold that the debt was payable by an agriculturist on the relevant date.
It may be that the mortgaged properties were agricultural lands but it is not known whether the mortgagors did possess other estates which might bring them within the purview of any of the provisos attached to the definition.
In these circumstances, the appellant must be deemed to have failed to show that there was in existence a debt payable by an agriculturist on 22nd March, 1938.
The High Court has held further that the defendant No. 6 was not an agriculturist because he was the purchaser of certain villages at a court sale in respect of which Peishkush exceeding Rs. 500 was payable.
Consequently, he became " land holder of an estate " under the Madras Estates Land Act and could not claim to be an agriculturist as laid down in the proviso (D) to section 2 (ii) of the Act.
Mr. Somayya 904 lays stress upon the fact that this purchase on the part of his client was merely as a benamidar for defendant No. 5 as has been held by both the courts below and consequently the proviso did not affect him at all.
This is a debatable point upon which the judicial opinion of the Madras High Court itself does not seem to be quite uniform.
A distinction can certainly be drawn between the rights of a person in his own individual or personal capacity and those which he exercises on behalf of another.
On the other hand, if we look to the definition of " land holder " as given in section 3 (5) of the Madras Estates Land Act, it may be argued that a benamidar of an estate, who is entitled to collect rents and is at least the titular owner of the estate could come within the description.
Having regard to the view taken by us that section 7 of the Agriculturists ' Relief Act is not applicable on the facts of the present case, this question does not really become material and it is not necessary for us to express any final opinion upon it.
For the identical reason section 8 (1) of the Act cannot also be invoked in favour of the appellant.
It may further be mentioned that Mr. Somayya in course of his arguments made it plain that he would not press for relief under the Agriculturists ' Relief Act if the high rate of in terest allowed by the High Court was substantially reduced.
This takes us to the third point and we think that the stipulation as to payment of compound interest in case of default, being held to be a penalty by both the courts below, the High Court should not have allowed interest at the rate of 71 % compound with yearly rests, The High Court seems to have been misled by a statement occurring in the judgment of the trial Judge that the original rate of interest was 7 1/2% compound with yearly rests.
This is not true and as a matter of fact, the original agreement was to pay interest at 7 1/2 % simple.
We consider it proper that the mortgage money payable to the plaintiff should carry interest at the rate of 7 1/2% simple up to the expiry of the period of redemption which we fix at six months from this date, 905 The result, therefore, is that we allow the appeal in part and modify the judgment of the High Court.
A preliminary decree should be drawn up in favour of the plaintiff against defendant No. 6 alone for a sum of Rs. 55,287 annas odd which will carry interest at 7 1/2 % simple per annum.
Interest will be calculated on Rs. 52,287 on and from the date of the mortgage, while on the balance of Rs. 3,000 interest will run from 5th November, 1930.
We make no order as to costs of this court or of the High Court.
The plaintiff will have his costs of the trial court.
Appeal allowed in part.
Agent for respondent No. 1 : Ganpat Rai.
[/INST]Under the provisions of section 28A of the , as amended by the Provincial Insolvency (Amendment) Act of 1948, which has been expressly made retrospective, when a Hindu father governed by the Mitakshara law is adjudged a bankrupt, his power to alienate the interest of his sons in the joint family properties for the satisfaction of his antecedent debts not contracted for illegal or immoral purposes, passes to the Receiver as his "property" within the meaning of the Act.
Consequently, where a Hindu father who has mortgaged the joint family property for an antecedent debt which is not illegal or immoral becomes insolvent and the receiver sells the property, the interest of his sons in the property also vests in the purchaser, even in the case of a sale held before the Amendment Act of 1948 came into force, and the sons cannot redeem the property.
Sat Narain vs Sri Kishen (63 I.A. 384), Rama Sastrulu vs Balakrishna Rao (I. L. R. 1943 Mad. 83) and Viswanath vs Official Receiver (I.L.R. 16 Pat.
60) referred to.
Though the liability of a person who has purchased an equity of redemption after 22nd March, 1938, to pay the mortgage debt arises only on the date of his purchase, if the debt itself existed on the 22nd March, 1938, and if it was payable by an agriculturist on that date, the purchaser can claim the benefits conferred by section 7 of the Madras Agricultural Relief Act, 1938, if he himself was an agriculturist on the date of his application.
Periannia vs Sellappa (I.L.R. 1939 218) referred to.
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<s>[INST] Summarize the judgementNo. 1854 of 1973.
Petition under Article 32 of the Constitution of India.
V.M. Tarkunde, Shyania Pappu, D. D. Sharma and Ashok Kunnar Srivastava, for the petitioners.
L.N. Sinha, Solicitor General of India and R. N. Sachthey for respondents nos.
B. P. Maheshwari for respondent No. 3.
R.K. Garg, section C. Agarwal, section C. Bhatnagar, V. J. Francis and section K. Mehta, for respondents nos.
The Judgment of the Court was delivered by UNTWALIA, J.
The four petitioners in this petition under Article 32 of the Constitution of India are working as Additional District & 556 'Sessions Judges in the Delhi Higher Judicial Service at Delhi.
Their ,prayers in ,his writ petition are to strike down Rules 9(a) and 11 of the Delhi Judicial Service Rules, 1970 as being ultra vires and violative of Articles 14 and 16 of the Constitution and to declare Rule 8 of Delhi Higher Judicial Service Rules, 1970 as void and unconstitutional.
Their further prayer is to quash the fixation of the seniority of the petitioners and respondents 3 to 6 and to place petitioners 1 to 4 above respondents 3 to 5 and petitioners 2 to 4 above respondent 6 in the ,,gradation of seniority in Delhi Judicial Service and Delhi Higher Judicial Service.
All the four petitioners originally belonged to the Punjab Civil service (Judicial).
Shri Joginder Nath, petitioner No. 1 joined ,he said service on 2.7.1956, Shri D. C. Aggarwal, petitioner No. 2 on 2.7.1957, Shri section R. Goel, petitioner No. 3 on 8.7.1957 and Shri P. L. Singla, petitioner No. 4 on 10.10.1958.
Prior to 1966, the Union .Territory of Delhi for the purposes of administration of Justice was included within the territorial Jurisdiction of the erstwhile Punjab High ,Court and Presiding Officers of the Courts at Delhi were posted by transfer from the State of Punjab.
There was no separation of Executive and Judiciary.
The Magistrates were selected on ad hoc basis from the States of U.P. and Punjab and were posted to work as such ::at Delhi.
Later on creation of the States of Punjab and Haryana the officers of Punjab and Haryana Civil Service (Judicial) cadre used to be posted in Delhi against all judicial posts.
A separate High Court for Delhi was constituted on the 31st October, 1966.
The arrangement in regard to Judicial officers in the lower Courts however continued as before.
In 1969 under the Union Territories (separation of Judicial and Executive functions) Act, the magistracy in Delhi was split up into two parts with effect from 2.10.1969.
Some magistrates ,.of the State Civil Service, Executive Branch, were transferred to work under the superintendence and control of the High Court of Delhi while others were assigned Executive duties and remained under the ,control of the Delhi Administration as before.
In pursuance of the 'Scheme of separation aforesaid, respondents 3 to 5 who were working as Judicial Magistrates from before were appointed as Chief or Additional Chief Judicial Magistrates under the aforesaid Union Territories Act of 1969.
They were formerly Officers of the U.P. Judicial 'Officers Service.
Respondent No. 6 was a member of the Haryana Civil Service (Judicial).
Respondents 3 to 5 were performing the functions of Revenue Officers and Judicial Magistrates in U.P. and .thereafter in Delhi.
The petitioners case is that on 27 8 1970 the Lt., Governor of Delhi, respondent No. 2 as Administrator of the Union Territory framed Delhi Higher Judicial Service Rules, 1970 and Delhi Judicial Service Rules, 1970 under Article 309 of the Constitution read with certain notifications of the Government of India, Ministry of Home Affairs.
A Selection Committee was constituted in accordance with Rule 7 of the Delhi Judical Service Rules.
On the basis of the recommendations of the Selection Committee, respondent No. 2 made 'appointment of officers by way of initial recruitment to the Delhi 557 Judicial Service under Rule 8.
61 officers were selected.
It may however, be stated here that as per the statement in the counter affidavit filed on behalf of respondent No. 2 only 49 officers joined.
The petitioners 1 to 4 were placed in the seniority list of the Delhi Judicial Service at serial nos.
6, 9, 12 and 13 respectively while the respective serial nos.
assigned to respondents 3 to 6 were 1, 2, 4 and 7.
It would thus be seen that respondent No. 6 was junior to petitioner No. 1 but senior to petitioners 2 to 4 and respondents 3 to 5 were shown us senior to all the petitioners.
The petitioners claim that they were formerly permanent members of the Punjab Civil Service Judicial Branch in the time scale of Rs. 4001250.
They had been put in the selection grade also in the scale of Rs. 1300 1500.
On the other hand, respondents 3 to 5 were euphemistically called Judicial Officers in U.P. the State of their parent service.
They were in a lower scale of Rs. 300 900.
The next higher scale on being appointed to the post of Additional District Magistrates was Rs. 400 1000/ .
The petitioners ' grievance is that Rule 11 of the Delhi Judicial Service Rules permitting the fixation of the seniority of the selected officers under Rule 9(a) on the basis of length of service was bad.
It was fixed by a notification dated 2.8.1971 and was subject to revision on good cause shown.
Respondents 3 to 5 had joined service in the year 1947 as Judicial Officers which was not a cadre service.
It was only on 1.4.1955 that a regular cadre of Judicial officers was created in U.P. but it was different and distinct from the U.P. Civil Service Judicial Branch.
Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge, in spite of their longer service in the cadre of U.P. Judicial Officers Service.
The petitioners case further runs thus : Petitioner No. 1 was promoted to the post of Additional District Judge with effect from 24.1.1972and the petitioners 2 to 4 were so promoted with effect from 25.3.1972.Respondents 3 to 5 were not considered to have qualified themselves for being promoted as Addl.
District Judges.
One, of the reasons for not promoting them to the higher judicial service was that they had not received requisite training in I the Civil Law.
Accordingly they were by passed and in the meantime they were given powers of the Subordinate Judges to enable them to get requisite training in Civil Law.
Respondent No. 6 was posted as Sub Judge, First Class and demoted from the post of a Senior Sub Judge on account of inefficiency.
He was not enjoying the selection grade of Haryana Civil Service (Judicial Branch) at the time of his appointment to Delhi Judicial Service while the petitioners were in such grade in their parent service.
Respondents 3 to 5 were later promoted as Additional District Judges on 2.6.1972 and respondent No. 6 was promoted in June, 1973.
Thus all of them were promoted to the higher Judicial Service after the Petitioners.
Yet they were made to ranks senior to petitioners 1 to 4 under Rule 8 of the Delhi Higher Judicial Service Rules.
Respondent No. 6 in spite of his appointment 558 as an Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of Rule 8 aforesaid.
Mr. Tarkunde, learned counsel for the petitioners submitted support of the Writ Petition the.
following points : 1.
Rule 9(a) of the Delhi Judicial Service Rules was bad as it was not framed in accordance with Article 234 of the Constitution and because it permitted the initial appointment to the Delhi Judicial Service of persons who were not in any Judicial service from before.
In any event respondents 3 to 5 could not be _appointed to the Delhi Judicial Service under Rule 9(a).
Rule 1 1 of the Delhi Judicial Service Rules is bad as it infringes Article 14 of the Constitution in as much as it equates length of Judicial service with the length of non judicial service for the purpose of fixation of seniority and thus it makes unequals as equals.
Rule 8 of the Delhi Higher Judicial Service Rules is bad because it fixes the seniority in higher service according to the seniority in the lower one.
A counter affidavit has been filed on behalf of respondent No. 2 and learned Solicitor General appeared to oppose the rule on his behalf.
various counter affidavits were filed on behalf of respondents 3 to 6 and Mr. Garg who appeared on their behalf informed us that respondent No. 3 has since retired and the petitioners could not be ,/granted any relief against him.
He, however, raised a preliminary objection to the maintainability of the Writ petition on the ground of delay.
He submitted that the seniority fixed on 2.8.1971 by list Annexure E/1 to one of the rejoinders could not be challenged by filing a writ application in September, 1973.
He further pointed out that the said seniority list has been revised and substituted by a new list dated 2.6.1973, a copy of which is Annexure R 4/1.
The peti tioners have not challenged the correctness of that list in which had merged the first list dated 2.8.1971.
In our opinion on the facts and in the circumstance of this case the preliminary objection raised on behalf of the respondents cannot succeed.
The first list fixing the seniority of the Judicial officers initially recruited to the Delhi Judicial Service was issued on 2.8.1971 This was subject to revision on good cause being shown.
Petitioners also, as we shall show hereinafter in this Judgment on one ground or the other, wanted their position to be revised in the seniority list.
They, however, did not succeed.
A revised seniority list was issued on 2,6,1973.
The filing of the writ petition was not designedly delayed thereafter. 'Since the petitioners ' position in the seniority list vis a vis respondents 3 to 6 had not been disturbed in the new list dated 2.6.1973 it was sufficient for the petitioners to challenge the list dated 2.8.1971.
We shall point out in this judgment that except the promotion to the posts of Additional District Judges, the seniority in relation to which 559 also is under challenge in this writ application, nothing special had happened creating any right in favour of the respondents or no such position had been created the disturbance of which would unsettle the long standing settled matters.
The writ application, therefore, cannot be thrown out on the ground of delay in regard to any of the reliefs asked for by the petitioners.
It has been pointed out by Hidayatullah, C.J. in the case of Tilokchand Motichand & Ors.
vs H. B. Munshi & Anr.(1) at page 831 "The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court.
" The learned Chief Justice had said at page 832.
"Therefore, the question is one of discretion for this Court to follow from case to case.
There is no lower limit and there is no upper limit.
A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under article 32.
Similarly in a suitable case this Court may entertain such a petition even after a lapse of time.
It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.
In the case of Rabindra Nath Bose & Ors.
vs Union of India & OrS.(2) Sikri J, as he then was, delivering the judgment on behalf of the Court has said at page 712 : "The highest Court in this land has been given Original Jurisdiction to entertain petitions under article 32 of the Constitution.
It could not have been the intention that this Court would go into stale demands after a lapse of years.
" But under what circumstances a petition under article 32 of the Constitution should be thrown out on the ground of delay, has been pointed out in the last paragraph on that page by observing.
"it would be unjust to deprive the respondents of the rights which have accrued to them.
Each person ought to be entitled to sit back.
and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.
" On the facts of this case the petition was held to have been filed after inordinate delay.
In a recent decision of this Court, Bhagwati, J. delivering the judgment on behalf of the bench of five Judges in Ramchandra Shankar Deodhar and others.
vs The State of Maharashtra and others(3) it age 265 has said "In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition.
Each case must depend on its own facts.
" on the facts and in the circumstances of this case we do not feel persuaded to throw out the petition on the ground of delay as there is none to disentitle the petitioners to claim relief.
The two impugned rules in this case were made by the Lt. Governor of Delhi in consultation with the High Court of Delhi in exercise of his powers conferred by the proviso to article 309 of the Constitution (1) (2) (3) A.I. R. , L 319 Sup CI/75 560 r/W certain notifications of the Government of India, Ministry of Rome Affairs.
The Delhi Higher Judicial Service Rules regulating the recruitment and condition of higher service could indisputably be made under the proviso to article 309 article 234 says : "Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with State Public Service Commission and with the High Court exercising Jurisdiction in relation to such State.
" It was not disputed on either side that the word "State" in the said Article would include a Union Territory also.
But the learned Solicitor General pointed out that there was no judicial service in the Union Territory of Delhi before its creation by initial recruitment to the service under the Delhi Judicial Service Rules.
The initial recruitment to the service could be made only under la valid rule framed under article 309 Framing of a rule under article 234 was not necessary.
We may, however, point out that part IV of Delhi Judicial Service Rules refers to recruitment to the service after the initial recruitment.
In our opinion, however, the rules framed by the Lt. Governor for appointment to the Delhi Judicial Service either at the initial stage or thereafter cannot be held to be invalid merely because they were not framed in accordance with article 234.
Rules framed under article 309 in consultation with the Delhi High Court were good and valid and cannot be assailed.
When it was pointed out to the learned counsel of the petitioners that on the argument advanced with reference to article 234 even the initial recruitment of the petitioners to the Delhi Judicial Service was in jeopardy, the point was ultimately given up and not pressed.
The constitution and strength of the Delhi Judicial Service as provided in rule 3 of the Delhi Judicial Service Rules will be of the service consisting of two grades namely Grade I (Selection Grade) and Grade 2.
The posts in Grade I shall be civil posts, class I Gazetted, and those in Grade 11 shall be civil posts, class 11 Gazetted.
Clause (d) of Rule 3 provides A "person appointed to the service shall be designated as Subordinate Judge or Judicial Magistrate or as Subordinate Judge or Judicial Magistrate or as Subordinate Judge cum Judical Magistrate in accordance with the duties being discharged by him for the time being." The posts borne on the permanent strength of the service and the posts included therein have been specified in the Schedule appended to the rules.
10% of the permanent strength of the service will be the posts in the selection grade.
A Selection Committee was constituted consisting of 3 Hon 'ble Judges of the Delhi High Court, the Chief Secretary and a Secretary of the Delhi Administration.
The initial recruitment was made by the Lt. Governor in accordance, with Rule 9 which reads, as follows : "9.
For initial recruitment to the service, the Selection Committee shall recommend to the Administrator suitable persons for appointment to the service from amongst the following : (a) Subordinate Judges and Law Graduate Judicial Magistrates working in the Union territory of Delhi on deputation from other States; 561 (b) members of Civil Judicial cadres of States whose names may be recommended by their respective State Governments for appointment, and (c) members of the Delhi Himachal Pradesh and Andaman and Nicobar Islands Civil Service, who are Law Graduates.
The consent of the officer to be recommended and the consent of his parent Government shall be necessary before his appointment to the service.", It would thus be noticed that the Selection Committee was to recommend only "suitable persons" for appointment to the service.
It is stated in paragraph 12 of the writ application that clause (c) of Rule 9 was struck down by the High Court of Delhi in Writ Petition No.1322/70 D. K. Paddar vs Lt. Governor at Delhi.
We are not concerned in this case with clause (c).
The source of the initial recruitment to the service under clause (a) was Subordinate Judges who necessarily belong to the Judicial cadre of a State and Law Graduate Judicial Magistrates (not merely Judicial Magistrates) working in the Union territory of Delhi.
The creation of the service being only in two grades, grade 2 and grade I (selection grade) and there being no provision for appointment in the selection grade at the stage of the initial recruitment of the service it is plain that all those who fulfilled the qualifications laid down in clause (a) of Rule 9 and who were found "suitable" by the Selection Committee could be initially recruited to the Delhi Judicial Service.
Even Judicial Magistrates have been put on a par with the Subordinate Judges.
None of the respondents 3 to 5 either in their parent service in U.P. or in the Union Territory of Delhi was a Magistrate on the Executive side.
All of them were doing the work of Judicial Magistrates and of Revenue officers which also included performance of judicial duties.
It is difficult to find any trace of invalidity in rule 9(a) of the Delhi Judicial Service Rules.
For the purpose of initial recruitment to the service, officers of the judicial cadre of a State and officers although not belonging to the judicial cadre but by and large performing the judicial functions could be put together.
There was no infraction of articles 14 and 16.
In the counter affidavit filed on behalf of respondent 2 it is mentioned that respondents 3 to 5 were in the regular cadre of U.P. Judicial Officers w.e.f. 1.4.1955.
It has been pointed out by this Court in the case of Chandra Mohan vs State of Uttar Pradesh & Ors.
(1) at page 80 "that the expression "judicial officers" is a euphemism for the members of the Executive department who discharge some revenue and magisterial duties." Strictly speaking the expression "Judicial duties" was held to be a misleading one for the purpose of recruitment to the higher judicial service in accordance with article 233 of the Constitution.
In the context and set up of the Article it was pointed out that the source of service for appointment as a District Judge must be the Judicial service and not any service.
It is plain that the same principle cannot apply to the recruitment of persons to the lower judicial service obviously not covered by article 233.
(1) 562 Rule 11 of the Delhi Judicial Service Rules reads as follows "11.
The Selection Committee shall arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in the cadre, to which they belong at the time of their initial recruitment to the service.
Provided that the inter se seniority as already fixed in such cadre shall not be altered.
" The question for determination is was there any infirmity in rule 1 1 ? Did it put unequals with equals and violated article 14 of the Constitution? Was the rule arbitrary and discriminatory? Once the Selection Committee found persons belonging to clause (a) of Rule 9 suitable for appointment to the service it was under a duty and obligation to arrange the list of suitable persons by placing them in proper places in the matter of seniority.
They were all being initially appointed to the Delhi Judicial Service wherein there was no separate gradation of posts.
The assignment of duties was to follow on the basis of seniority list.
Arranging the seniority of the candidates recommended by the Selection Committee in accordance with the length of service rendered by them in the judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good.
The petitioners could not have any grievance in that regard.
On their initial recruitment to the Delhi Judicial Service they retained their original seniority inter se as was assigned to them in their parent cadre.
Was it possible to have a different yardstick, some other date or shorter period for fixation of the seniority of the law graduates judicial magistrates on their initial recruitment to the service ? from which date their seniority ought to have been reckoned ? Was it possible to treat them as the first and the new recruits to the Delhi Judicial Service.
Even so what would have been the basis of determining their seniority inter se ? The questions posed are suggestive of the answers.
Taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority under rule 1 1 of the Delhi Judicial Service Rules was justified, legal and valid.
Had it been otherwise it Would have been discriminatory.
It was not equating unequals with equals.
It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi.
For the purpose of fixation of seniority it would have been highly unjust and unreasonable to take the date of their initial recruitment to the service as their first appointment.
Nor was it possible to take any other date in between the period of their service in their parent cadre.
It would have been wholly arbitrary.
In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for.
the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial service.
It was not possible or practical measure their respective merits for the purpose of seniority with mathematical precision by a barometer.
Some formula doing largest good to the largest number had to be evolved.
The only reason able and workable formula which could be evolved was the one engrafted in rule 11 of the Delhi Judicial Service Rules.
563 The decision of this Court in Kunnathat Thathunni Moopil Nair vs The State of Kerala and another(1) relied on by the petitioners is clearly distinguishable.
Sinha, C.J. 'in his judgment at page 92 pointed out the nature of equal burden of tax placed upon unequals and said "It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section.
It is also clear that there is no attempt at classification in the provisions of the Act.
Hence, no more need be said as to what could have been the basis for a valid classification.
It is one of those cases where the lack of classification creates inequality." In the instant case for the purpose of fixing the seniority at the stage of the initial recruitment to the Delhi Judicial Service, no other classification, no different yardstick was possible.
The inequality was avoided to a large extent by rule 1 1.
The case of Jalan Trading Co. (Private Ltd.) vs Mill Mazdoor Union (2) is also of no help to the petitioners.
Distinguishing Moopil Nair 's case [1961(3) S.C.R. 77] Shah, J. as he then was pointed out at page 36 : "If the classification is not patently arbitrary, the Court will not rule it discriminatory merely because it involves hardship or inequality of burden.
Equal treatment of unequal objects, transactions or persons is not liable to be struck down as discriminatory unless there is simultaneously absence of a rational relation to the object intended to be achieved by the law.
" The principles enunciated when applied correctly to the facts of the instant case rather go against the petitioners. "Equal treatment of unequal objects" even if we prefer to call them different classes, is not discriminatory in this case ,as there is a rational relation to the object intended to be achieved by the law.
The object of the Delhi Judicial Service Rules was to create, a service by integration of different classes of persons already working as Judicial officers.
The fixation of seniority on the basis of length of service in their respective parent cadres bad a rational nexus to the object intended to be achieved.
One of us in the case of The State of Gujarat and another etc.
vs Shri Ambica Mills Ltd. Ahmedabad etc(3) delivering the judgment on behalf of the Court hag pointed out at page 1313 : "A reasonable classification is one which includes all who are similarly situated and non who are not.
The question then is : what does the phrase 'similarly situated ' mean? The answer to the question is that we must look beyond the classification to the purpose of the law.
A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law.
The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.
" In the instant case treat in the two classes as one for the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law.
We have therefore no difficulty in rejecting the argument put forward on behalf of the petitioners that rule 11 of Delhi Judicial Service Rules is bad as being violative of articles 14 and 16 of (1) ; (2) ; (3) ; 564 of the Constitution.
It was not suggested on behalf of the petitioners and rightly so that fixation of their seniority vis a vis respondents 3 to 6 in the Delhi Judicial Service was not in accordance with rule 11.
Two more facts need be noted here in connection with the question of seniority and they are these : A notification dated September 30, 1967 was issued by the Governor of U.P., a copy of which is Annexure 'H ' to the rejoinder on behalf of the petitioners to the counter affidavit filed by respondent 2 under article 237 of the Constitution directing that the remaining provisions of Chapter VI of Part VI of the Constitution shall, With effect from October 2, 1967, apply in relation to such magistrates including additional District Magistrates (Judicial), in the State as belong to the Uttar Pradesh Judicial officers Service as they apply in relation to persons appointed to the Judicial Service of the State subject to the certain exceptions and modifications mentioned in the said notification.
It is no doubt true that respondents 3 to 5 were already on deputation to the Union territory of Delhi.
Yet they could not be denied the advantage of this notification in principle.
They were doing the judicial work in Delhi and on initial recruitment to the Delhi Judicial Service became its fulfledged members.
The letter dated September 29, 1967, a copy of which is Annexure R 4/5 to the supplementary affidavit of the respondent No. 4 written by the Chief Secretary to the Govt.
of U.P. to the Registrar, High Court of Allahabad also supports the above position.
It is admitted that on or from 2.10.1969 there was no separation of Executive and Judiciary in Delhi also and all officers working on the judicial side were placed under the control of the Delhi High Court.
Annexure "A" to the counter affidavit of respondent No. 2 is a copy of the order dated 18th December, 72 passed by Hon 'ble Mr. Justice V. section Deshpande and Hon 'ble Mr. Justice section Rangarajan of the Delhi High Court.
The representations of the petitioners were rejected.
The order indicates that the initial recruits were given seniority ac cording to the length of service in their cadres.
The representationists accepted this position and the matter was close.
Their new stand that since they belonged to the selection grade of Subordinate Judges in the Punjab and Haryana Judicial Service cadre they ought to have been appointed to such a grade in Delhi Judical Service even at the time of initial recruitment was not accepted to be correct.
It is, therefore, plain that on initial recruitment to the Delhi Judicial Service all those who are recruited including the petitioners and respondents 3 to 6 were at par and the fixation of their seniority in accordance with rule 11 of the Delhi Judicial Service Rules was legal and valid.
The facts in relation to the 6th respondent are these.
This respondent also formerly belonged to the combined Punjab Civil Service (Judicial) P.C.S. cadre.
This respondent and petitioner No. 1 were selected in the open competition together and later joined the Judicial Service in the year 1956.
Both were confirmed in the year 1958.
Petitioner No. 1 was senior to respondent No. 6 Petitioners 2 to 4 joined the same service later and were junior to respondent No. 6.
When the State of Punjab was bifurcated into two States of Punjab and Haryana of 1.11.1966 the petitioners were allotted the cadre of 565 Punjab and respondent No. 6 came to the cadre of Haryana.
On Constitution of the Delhi Judicial Service, respondent No. 6 was recommended by the Haryana St ate and was initially recruited to the Delhi Service which he joined on 1.9.1971.
Eventually respondent No. 6 was placed in the selection grade w.e.f. 25.3.1972 and he was promoted as Additional District & Sessions Judge w.e.f.
1.6.1973.
It would thus be seen that allocation of a place of seniority in the Delhi Judicial Service to respondent No. 6 below petitioner No. 1 and above petitioners 2 to 4 was valid and justified.
Coming to the Delhi Higher Judicial Service Rules, 1970 we find that under rule 6 the initial recruitment to the higher service was made.
None of the petitioners or the respondents was initially recruited.
The regular recruitment to the higher service after the initial recruit ment has been provided in rule 7 in these terms "7.
Regular recruitment Recruitment after the initial recruitment shall be made : (a) by promotion from the Delhi Judicial Service; (b) by direct recruitment from the Bar.
Provided that not more than 1/3rd of the substantive posts in the service shall be held by direct recruits.
" Rule 8 prescribes the mode of determination of inter se seniority of the promotees and the seniority of the direct recruits vis a vis promotees.
It runs as follows : "8.
(1) The inter se seniority of members of the Delhi Judicial Servicepromoted to the service shall be the same as in the Delhi Judicial Service.
(2) The seniority of direct recruits vis a vis Promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on.
" We may notice here two rules viz. Rules 16 and 17 relating to temporary appointments forming part V of the Delhi Higher Judicial Service Rules.
They read as follows : "16 (1) The Administrator may create temporary posts in the service.
(2)Such posts shall be filled, in consultation with the High Court, from amongst members of the Delhi Judicial Service." "17.
Notwithstanding anything contained in these rule the Administrator may, in consultation with the High Court, fill substantive vacancies in the service by making temporary appointments thereto from amongst members of the Delhi Judicial Service.
" It would thus be seen that there are two types of appointments to Delhi Higher Judicial Service one by regular recruitment, the source of which is by promotion from the Delhi Judicial Service and by direct 566 recruitment from the Bar.
Rule 8 prescribes the mode of determination of seniority of such regular recruits.
The inter se seniority of the members of the Delhi Judicial Service promoted to the higher service has got to be the same as in the lower rank.
As a matter of construction it necessarily follows that it would be the same provided the promotion from the lower to the higher service is at the same time.
Learned Solicitor General appearing for respondent No. 2 in his usual fairness conceded to this interpretation and added that it cannot but be so.
If a member of the Delhi Judicial Service is superseded at the time of recruitment under rule 7 by his junior but gets a chance of promotion later, it is obvious that he cannot retain his seniority in the lower rank.
All candidates on appointment to the higher service have got to be on probation for a period of two years under rule 12(2) and ordinarily and generally they would be confirmed at the end of the said period of two years in accordance with rule 13.
Strictly speaking the question of determination of inter se seniority under rule 8 will crop up at the time of the confirmation of the appointee.
In Chandramouleshwar Prasad 'vs Patna High Court I & Ors.
(1) referring to the relevant rules of the Bihar Superior Judicial Service Rules, Mitter, J delivering the judgment on behalf of this Court said at page 671 : "It may be noted at this stage that the gradation of the officers by the High Court or maintaining any list showing such gradation is not sanctioned by any service rules.
The Bihar Superior Judicial Service Rules to which our attention %,as drawn do not contain any provision which would entitle the High Court to make such a gradation or act thereon.
Rule 5 of the said Rules prescribes that ordinarily appointments to the post of Additional District and Sessions Judges shall be made by the Government in consultation with the High Court and under R. 8 a person appointed either on substantive or officiating basis to the post of Additional District and Sessions Judge shall draw pay on the lower time basis.
Rule 16(b) provides that seniority inter se of promoted officers shall be determined in accordance with the dates of their substantive appointments to the service and R. 16(d) lays down that more than one appointment is made by promotion at one time, the seniority inter se of the officers promoted shall be in accordance with the respective seniority in the Bihar Civil Service (Judicial Branch).
The question of seniority therefore has to be determined when the persons appointed either temporarily or on an officiating basis are given substantive appointments.
So far as the petitioner and the three respondents are concerned that time is yet to come.
" On a parity of reasoning it follows that question of determination of seniority comes in at the time of confirmation of the appointees.
Two members of the Delhi Judicial Service confirmed in the higher service at the same time will retain their inter se seniority as in the lower service.
But if they are not confirmed at the same time then one who is confirmed earlier will be senior to the one who is confirmed later, even though they might have been appointed on probation under rule 7 at the same time.
We may, however, add that for practical purposes and for the facility of administration the High Court for the (1) ; 567 time being may consider the promoted probationers as retaining their inter se seniority of the lower service if they are appointed at the same time until they are confirmed.
In our judgment members of the Delhi Judicial Service coming to the higher service on temporary appointments either under rule 16 or rule 17 of the Delhi Higher Judicial Service Rules cannot claim the benefit of the inter se seniority under rule 8.
There are no rules prescribing the mode of determination of inter se seniority of such temporary appointees or permitting them to count their officiation in the temporary appointments for the purpose of their seniority on their being appointed substantively.
The question of determination of interse seniority of the promotees under rule 8(1) as already stated would crop up only after the promotees have been substantively appointed.
We may add here also that as between the temporary appointees for practical purposes and for the facility of the administration it will be open to the High Court to permit the promotees to retain their seniority in the lower judicial service after they are temporarily appointed at the same time till they continue in the temporary appointments.
The vires of rule 8(1) of the Delhi Higher Judicial Service Rules was challenged by Mr. Tarkunde, learned counsel for the petitioners on the ground that rule 8(1) equates all who are promoted to the higher service and permits them to retain their seniority in the lower service irrespective of the time of their appointment.
Counsel submitted that those who came earlier to the higher service whether under rule 7 or under rule 16 or 17 should have been allowed to rank senior to those who came to be appointed either substantively or temporarily to the higher service later.
The attack on the constitutionality of rule 8(1) is obliterated if by construction it is held, as it has been done above, that the question of retention of seniority in the lower service arises only when the promotion is at the same time and not otherwise.
In absence of such an interpretation it would be a truism to say that rule 8(1) would be discriminatory and violative of article 14 of the Constitution.
But with the aid of well established cannons of interpretation we see no difficulty in saving the constitutionality of the rule by interpreting it in a reasonable, sensible and just manner as we have done in this case.
The second part of the argument of Mr. Tarkunde to rope in the temporary appointees for the purpose of determination of inter se seniority of the promotees under rule 8(1) is obviously wrong and cannot be accepted as sound.
It may also be added that sub rule (2) of rule 8 will militate against the acceptance of the submission aforesaid.
Judging the facts of the instant case in the light of the interpretation which we have put to the relevant rules of the Delhi Higher Judicial Service it will be noticed that the grievance of the petitioners in relation to the seniority of respondents 3 to 6 is either unjustified or premature.
Even though respondent No. 3 has already retired and determination of such a question vis a vis him would be futile, while referring to the relevant facts of the case we may point out that the grievance of the petitioners as against respondents 3 and 4 is wholly unjustified.
568 Annexure 'J ' is a copy of the notification dated 20th January, 1972 whereby the Administrator of Delhi was pleased to appoint in consultation with the High Court Shri Joginder Nath, petitioner No. 1 and one Om Prakash Singla, members of the Delhi Judicial Service, to the Delhi Higher Judicial Service, temporarily till further orders.
The appointment was under rule 17 of the Delhi Higher Judicial Service Rules against the 14th and.
15th vacancies.
In paragraph 15 of the counter affidavit filed on behalf of respondent No. 2 reason has been given as to why petitioner No. 1 was temporarily appointed and the appointments of respondents 3 to 5 was deferred.
It was not because they were found unfit that they were not appointed but to enable them to have more experience of the civil work they were made Subordinate Judges.
After sometime respondents 3 and 4 were appointed on probation for 2 years under rule 7 against the 14th and 15th vacancies.
By another notification of the same date issued under rule 17, petitioner No. 1 and respondent No. 5 were temporarily appointed in officiating capacity till further orders.
Four temporary posts were created by a notification dated 13th March, 1974.
Petitioners 2, 3 and 4 were temporarily appointed to three of these posts by notification dt.
22nd March, 72 by the Administrator of Delhi in exercise of his powers under rule 16(2) of the Delhi Higher Judicial Service Rules.
Copies of these notifications issued under Rules 7, 17 and 16 of the Delhi Higher Judicial Service Rules are collectively Annexure 'B ' to the counter affidavit of respondent No. 2.
Respondents 3 and 4 have been confirmed during the pendency of this Writ petition in the higher service by notification dated 13,6,1974 Annexure R 4/4 w.e.f.
2nd June, 1974.
The, petitioners have not challenged the notifications appointing them temporarily to the higher service under rule 16 or rule 17 and appointing respondents 3 and 4 substantively under rule 7.
The confirmation of the latter therefore is perfectly in order and it goes without saying that they will be senior to such members of the Delhi Judicial Service who would be substantively appointed and confirmed later.
A copy of the notification appointing respondent No. 6 to the higher judicial service from 1.6.1973 does not seem to be in the records of this case.
We were however informed at the Bar that he was also temporarily appointed either under rule 16 or rule 17.
That being so it was not clear to us whether the grievance of the petitioners in paragraph 19 of the writ petition that respondent No. 6 inspite of his appointment as Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of rule 8 of the Delhi Higher Judicial Service Rules, is correct or justified.
The question of the 6th respondent 's ranking senior to any of the petitioners will not arise until they are substantively appointed to the higher judicial service.
We may, however, reiterate our observation that from a practical point of view and for the facility of administration, in the temporary appointments, respondent No. 6 who came later than the petitioners cannot rank senior to any of them.
In the well known case of Parshotam Lal Dhingra vs Union of India(1) Das C.J. delivering the judgment on behalf of majority of (1) ; 569 this Court pointed out at pages 841 and 842 thus : "The appointment of a Government servant to a permanent post may be substantive or on probati on or on an officiating basis. .
An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post.
Such an officiating 'appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on substantive appointment being to that permanent post in the later case. . .
In the instant case it is clear that due to justifiable reasons, the appointment of respondents 3 and 4 substantively to the 14th and the 15th vacancies was deferred and petitioner No. 1 was made to officiate in a temporary capacity against the substantive vacancy.
But such an officiation came to an end on the substantive appointment of either of respondents 3 or 4.
For the reasons aforesaid we hold that the petitioners have made out no case entitling them to any relief asked for by them in this writ, petition.
It accordingly fails and is dismissed without costs.
[/INST]The Gujarat Vacant Lands in Urban Area (Prohibition of Alienation) Act,, 1972 is enacted to prohibit the alienation of certain vacant lands in urban areas in the State of Gujarat.
Section 2 of the Act embodies a declaration that the Act is for giving effect to the policy of the State towards securing the principles specific in clauses (b) and (c) of article 39 of the Constitution.
Section 4 prohibits the alienation of vacant land after the appointed day.
It however exempts one plot of vacant land owned by a person not exceeding 1000 sq. metres and not forming part of a compact block.
The transfers in favour of the State Government, Central Government, local ' authority, Government company, statutory corporations and cooperative house building societies are also exempted.
The State Government has been empowered by general or special order to exempt any area or any alienation from all or any of the provisions of the Act.
This is subject to the rules made by the State Government.
Every order made by the State Government and the Collector exempting any area or alienation from, any of the provisions of the Act is required to be laid before the State Legislature.
The Learned Counsel for the petitioner conceded that in view of the proclamation of emergency fundamental right guaranteed under Article 19 is under suspension.
It was contended that the Act offended Article 14 and that the Act was not directly relatable to the object of Article 39 (b) and (c) and, therefore, Article 31C could, not protect it.
HELD : (i) It is not necessary to take recourse to Article 31C for upholding constitutional validity of the Act as, it does not infringe equal protection of law guaranteed under Article 14 of the Constitution.
Urban area means any area which is comprised in the city or a municipal Borough.
Surrounding area not exceeding 16 kms.
has to be fixed ' by a notification of the State Government.
By notifications limit of 16 kms. has been fixed in case of big cities like Ahmedabad, Baroda, etc.
but lesser limits of distance have been notified in case of small municipal boroughs.
When the limit of the distance outside the city or town area differed from place to, place it was not necessary to fix the limit of permissible area of transfer with reference to the value of the land.
It was neither feasible nor expedient to do so.
From the permissible limit of transfer the area forming part of the compact block had to be excluded as it would have led to monopolisation and monoeuvrings by persons belonging to the same family unit.[668F; 672 B] (ii) There is reasonable classification and there is a clear nexus between the object of the Act and the classification.
The Act has neither put unequals as equals nor has it discriminated between equals.
The object of the Act being to prevent alienation of vacant lands it rightly excludes the building lands from its operation.
Since the object of the Act is to ultimately distribute ownership and control of the material resources to subserve the common good transfer in favour of Government, Local Authorities, Government Companies and Statutory Corporations has been excluded.
Formation of Cooperative House Building Societies is obviously a step for fulfilment of the object of the Act.
The power of the State Government to exempt any area or any alienation from all or any of the provisions of the Act is a power which is to be exercised for the reasons to be recorded and in furtherance of the object of the Act.
The guideline is to be found in the object of the Act.
The order of exemption to be made by the Collector is only where the land is to be used for any educational, scientific, industrial or commercial purposes.
The exercise of the power by the Collector is further controlled by providing an appeal to the State Government.
The orders are to be placed before the State Legislature which will act as a supervisory of the orders of exemption made by the State Government or this Collector.
[672D H] 668
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<s>[INST] Summarize the judgementAppeal No. 2433 of 1966.
Appeal from the judgment and decree dated August 2, 1965 of the Bombay High Court, Nagpur Bench in Appeal No. 113 of 1959 from original decree.
V. section Desai, V. N. Swamy, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the appellants.
M. N. Phadke and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by Shah, C.J.
Dawalatshah and Ranwirshah sons of Pratapshah instituted an action in the Court of the Additional District Judge Chanda, for a decree for possession of property immovable (including the Zamindari of Dhanora) and movable specified in the Schedules annexed to the plaint, and for an order for payment of mesne profits and also for recovery of the amount of compensation in respect of certain lands received by the defendants from the Government of Madhya Pradesh and for an order declaring 326 their right to receive the balance of compensation remaining to be paid.
The plaintiffs relied upon the following genealogy Gangashah Niru Bhakta Sakru Kajur Raju Thakur Thakur Thakur ThakurThakur Sitaram Tanba Chatturshah Thakur Thakur (dead) Nilkanthshah Pratapshah Dawaltshah Ranwirshab Gulab Lallshah (Platff (Platff.
Shah dead) No. 1) No. 2) (dead) Hanmantrao Amarshah Basu Chandarshah Karanshah Niranshah Died Dec. 9, (dead) (dead) 1950) Diwakarrao (Died Sept., 8,1932) Ballarshah Karansbah Dayaram Indersbah (Deft.
No. 1) (Deft.
No. 2) Govinda Budha Rama Laxman (dead,) The plaintiffs claimed that the property in suit originally belonged to Gangashah.
Gangashah had five sons: Hiru, Bhakta, Sakru, Kajur and Raju.
The branches of Sakru and Kajur became extinct a long time ago.
The branch of Hiru (who was 327 the eldest among the five sons of Gangashah) because extinct with the death of Amarshah on December 6, 1950.
The plaintiffs claimed the Zamindari held by Amarshah relying upon the rule of primogeniture, and the other estate of Amarshah as devisees under the will of Amarshah executed on December 3, 1950.
They submitted that the Dhanora Zamindari was granted to Sitaram ancestor of Amarshah as an impartible estate, devolving by the rule of primogeniture; that the Zamindari on that account devolved on the death of Amarshah upon Pratapshah and that on the death of Pratapshah and Zamindari devolved upon the first plaintiff.
The plaintiffs also claimed that the other property including Malguzari lands devolved upon them under a will executed on December 3, 1950 whereby Amarshah devised his estate in their favour.
Accordingly the first plaintiff claimed that he was entitled to the Zamindari on the death of Pratapshah on January 27, 1951 and the plaintiffs claimed the other estate of Amarshah as devisees under his will.
The plaintiffs submitted that Dayaram the first defendant took wrongful possession of the Zamindari and other property, movable and immovable of Amarshah.
The defendants by their written statement maintained that the genealogical table set up by the plaintiffs was incorrect, that by the order of the Governor of Madhya Pradesh dated November 9, 1951, the Zamindari was conferred upon the 1st defendant Dayaram as he was found suitable to hold the, Zamindari and the decision of the Governor was binding upon the plaintiffs; that the decision of the Compensation Officer regarding Malguzari lands which vested in consequence of the enactment of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Act 1 of 1951, had become binding and conclusive against the plaintiffs because no suit challenging the deci sion was instituted within two months from the date thereof and the plaintiffs were on that account not entitled to claim the compensation paid or payable in respect of the Malguzari lands; that Amarshah did not execute the will set up by the plaintiffs; and that Amarshah had made a will dated December 8, 1950 under which his estate was devised in favour of the defendants.
The Trial Court held that the Dhanora Zamindari was impar tible and was governed by the rule of primogeniture and Pratapshah father of the plaintiffs being the eldest member of the seniormost branch from among the descendants of the common ancestor Gangashah was entitled to the Zamindari; that the plaintiffs were entitled to receive compensation in respect of the Malguzari lands and the decision of the Compensation Officer did not operate to deprive the plaintiff of the right to those lands or compensation payable in respect thereof; that the will set up by the plaintiffs 328 dated December 3, 1950 was genuine and the plaintiffs were under the will entitled to the estate devised in their favour by Amarshah; that the will dated December 8, 1950, set up by the defendants was "a fabricated will" and conferred no right or title upon the defendants; and that the genealogical table set up by the plaintiffs represented the true relationship between the descendants of Gangashah.
In appeal by the defendants, the High Court of Bombay con firmed the decree of the Trial Court with a slight modification.
The High Court held that the genealogical table set up by the plaintiffs was correct, that according to the custom governing succession Dhanora Zamindari devolved upon Pratapshah on the death of Amarshah, and on the death of Pratapshah the first plaintiff became entitled to the Zamindari, that the order of the Governor recognising Dayaram as Zamindar was not binding and conclusive, for it was not shown that in making the order the Governor had acted in exercise of the power conferred by the Chanda Patent; that the order was contrary to the customs and the law governing the Zamindari; that the decision of the Governor did not oust the jurisdiction of the the Civil Court; that the will dated December 8, 1950 set up by the defendants was not genuine and the will set up by the plaintiffs dated December 3, 1950, was genuine; and that the plaintiffs ' suit with regard to Malguzart lands was not barred by the decision of the Compensation Officer.
The High Court accordingly confirmed the decree passed by the Trial Court in respect of the Zamindari replying upon the rule of inheritance incorporated in the Wazibul Arz of the Chanda District and by ' succession under the will dated December 3, 1950 in respect of the other property except as to certain occupancy lands held by Amarshah.
With certificate granted by the High Court the defendants have appealed to this Court.
Certain concurrent findings on which not much argument was advanced at the Bar may first be set out.
The High Court agreeing with the Trial Court on appreciation of evidence held that the genealogy set up by the plaintiffs represented the true relationship between the parties.
Again the High Court agreeing with the Trial Court held that the will dated December 3, 1950 set up by the plaintiffs was genuine while the will dated December 8, 1950 set up by the defendants was not genuine.
The argument that the High Court did not give due weight to certain important circumstances in reaching their conclusion relating to the will set up by the plaintiff is without substance.
The circumstances relied upon are that the writing instrument with which the body of the will was written and the writing instrument with which 329 Amarshah, it was claimed, signed or executed the will were different, that the will was not registered, that the appearance of the will was suspicious, that the will was unnatural because it devised the estate in favour of the plaintiffs after giving a life interest in favour of the testator 's widow Ratnabai, that the will had not been produced before the revenue authorities and before the Com pensation Officer when disputes in relation to the estate of Amarshah were pending before those authorities, and that it was produced for the first time nearly seven years after the death of Amarshah, and that the scribe who wrote the will did not belong to the village to which Amarshah belonged.
The Trial Court and the High Court have reached the conclusion that on the circumstances no suspicion as to the genuineness of the will dated December, 1950 arose.
It may be noticed that the plaintiffs were, at the date of their father 's (Pratapshah 's) death minors, and soon after Pratapshah 's death, their mother abandoned them and re married.
Thereafter no one a tended to the pending litigation.
Failure to produce the will before the revenue authorities was therefore not a circumstance in the view of the High Court, which militated against the genuineness of the will.
In the view of the Courts absence of registration, appearance of the will, the contents thereof, the dispositions, thereunder, and the fact that the writer of the will belonged to another village did not in the circumstances of the case give rise to any suspicion.
We do not think that sitting in appeal we would be justified in interfering with the conclusion recorded by the Trial Court and confirmed by the High Court on what is essentially a conclusion on a question of fact.
The will set up by the defendants is not proved to be a genuine will executed by Awarshah.
This again is a concurrent finding of the two Courts and must be accepted in this Court.
No, argument has been advanced ' to pursuade us to take a different view.
The rights of the parties must be adjudged in the light of these findings.
The dispute between the parties relates to three set of properties (a) Dhanora Zamindari (b) Malguzari lands; (c) Occupancy lands and movables.
The ancestors of the parties held an extensive Zamindari in the Chanda District.
After the advent of the British rule, in that region, the revenue authorities commenced settlement operations.
An inquiry was held by the Settlement Officer in connection with the lands held by the family of the parties and statements of some 330 members were recorded.
Chattarshah s/o Kajur stated that the Zamindari of Dhanora was standing in the name of his cousin Sitaram and that all the members of the family were joint and maintained themselves out of the income from the Zamindari.
In his statement Sakru admitted that the rule of primogeniture prevailed in the family.
He stated that Hiru was his eldest brother and Sitaram was the son of Hiru and the Zamindari was recorded in the name of Sitaram according to Awwal Haqq i.e. rule of primogeniture from ancient times, even though he was senior in age, and that there was no quarrel between him and Sitaram and that he and Sitaram were living jointly and were taking the income from the Zamindari.
The Settlement Officer made an order on November 2, 1867 that the "Zamindari is of ancient tenure and the present Zamindar Sitaram Thakur has proved his right to be Zamindar.
Subject to the conditions to be embodied in patent of proprietary right.
I confer proprietary right in the Zamindari of Dhanora on Sitaram Thakur".
The Settlement Officer observed that conferment of proprietary rights was subject to conditions to be embodied in a patent of proprietary rights.
It may reasonably be inferred that a formal grant was made in favour of Sitaram.
The form of the grant which is known as "Chanda Patent" is reproduced in Aitchison 's "Collection of Treaties, Engagements and Sanads" Vol.
II, pp. 573 574.
Under the Chanda Patent it :was declared that the tenure shall be indivisible, and non transferable (save to to the nearest male heir the transfer in such case being subject to the approval of the Chief Commissioner) the land shall be held by one person, the Zamindar or Zamindarin for the time being and shall be held on conditions of (i) loyalty (ii) good police administration and (iii) improvement and cultivation of the estate.
Clauses V, VI, VII of the grant relating to succession to the Zamindari held under the Patent : "V. Subject to the provisions contained in Clause VI, the order of succession shall be as under : On the death of the Zamindar, the estates shall devolve upon his eldest son.
In default of a son, and when adoption has not taken place, the succession should preferably devolve on the nearest male kinsman, the widow receiving a suitable Maintenance.
In the event of the first in order of succession being, in the opinion of the local Government, unfit to carry out the conditions of Clause IV, the Zamindaree 'shall devolve upon the nearest heir who possesses the required qualification.
331 VII.
The Zamindar, in the case of gross misconduct, shall be liable to removal by the local Government; and if such removal be ordered, the succession shall take place as if the Zamindar removed had died.
" Tenure of the grant is entered in the Wajibul arz.
The relevant recitals in the Wajibul arz are as follows PART 1 Rights and liabilities of Zamindar in relation to Government.
(1) Watan Zamindar 's Watan is not partible and it cannot be given to anyone other than quite close (the nearest), male heir.
Changes taking place in this way should have sanction of the Governor in Council.
The Zamindari shall be in the name of only one person and the Zamindari has been granted to the Zamindar in possession at present on the conditions of this remaining loyal to the Government, managing his estate properly and improving the cultivation.
(2) Heirs On the death of Zamindar the estate shall devolve upon his eldest son.
If there is no legitimate or adopted son, it shall devolve upon a very close (the nearest) male relative.
If there arises a dispute regarding right of inheritance, the Governor in Council will decide it in accordance, with the custom in that family.
If the Governor in Council finds that the first heir is unable to abide by the conditions stated in BAB (clause).
the Zamindari shall be granted to a quite close (the nearest) male heir possessing the necessary qualifications.
(3) Dispossessing the Zamindar and forfeiting his rights.
Governor in Council may dispossess the Zamindar on account of his behaviour and bad administration.
Such dispossession may be for a few days or permanent.
If it is for a few days, the Deputy Commissioner will manage the Zamindari on behalf of the Zamindar and if the order of dispossession is permanent, the Zamindar shall so to say be deemed to have died and the heir will get the right.
" The entries in the Wajibul arz substantially reproduce the terms of the Chanda Patent as set out in Vol.
II of Aitchison 's "Collection of Treaties, Engagements and Sanads".
One Major C. B. Lucie Smith made a report relating to the Land Revenue settlement of the Chanda District, Central Pro vinces, 1869.
At pp.
179 to 180 Major Lucie Smith has referred to the Zamindarees of the Chanda District.
He has stated under the head "Zamindarees".
332 "The Zamindarees were settled by me; and in order to explain the principles of settlement adopted if will be necessary to touch first upon the questions of tenure and history.
The weight of testimony goes to show that the Zamindars are the descendants of men on whom were conferred tracts of country, more or less wild with the object of their being brought under cultivation and order maintained.
Naturally, .
while, the law was weak and its administrators distant the Zamindar, as the lord on the spot, exercised large powers but powers apparently never recognised by either the Gand or the Maratta Government.
He was undoubtedly regarded as a noble, bound to furnish a small contingent when required by his sovereign ; but there is nothing to warrant to the supposition that he possessed an absolute right in the soil; indeed, as far as my experience goes, such a right is foreign to the ideas of the races of this part of India.
The rulers of the day evidently made and unmade Zamindars at their pleasure;. . .
Under these circumstances it appeared that the Chanda Chiefs, though the Nobles of the Country, possessed no absolute rights in the soil, and that it rested with Government to confer it; and in conferring it, to prescribe such conditions as might be deemed fitting.
A scheme of conditions to be embodied in the, patent of proprietary right, and in the administration paper of the Zamindarees, was therefore drawn up, based upon the usages actually existing from ancient times; and, with one exception, the proposed arrangements were sanctioned in their entirety by the Government of India, who directed that they were to be taken as a general model for those to be applied to the Zamindarees of the Bala ghat district and to the non feudatory Zamindarees of Chutteesgurh.
The provision not approved as that on the death of a Zamindar, the estate should in default of a son, devolve upon his widow.
This code of succession has obtained among the Chanda Chiefs from time immemorial, and is the rule not only among them but among all classes of landholders in the district.
It suits especially the character of the Gond women. .
Government, however, after weighing the arguments urged ', decided that it was conducive to the interests of 333 the Zamindarees that the, succession should devolve only upon a male member of the family, and the clause was altered accordingly.
" Pratapshah and the 1st defendant Dayaram were descendants of Gangashah and they were related to Gangashah in the same degree.
But Pratapshah was the descendant of Bhakta, and Dayaram was the descendant of Raju.
Bhakta was the elder of the two brothers.
It is recited in the Wajibul arz that the Dhanora Zamindari is impartible, that on the death of the holder it devolves upon his eldest son and in the absence of a legitimate or an adopted son it devolves upon the nearest male relative.
Devolution of, the Zamindari closely resembles the traditional rule of liberal primogeniture.
If the holder dies leaving him surviving no son legitimate or adopted, the Zamindari devolves upon a descendant from the common ancestor of the nearest degree and in the event of there more, descendants from the common ancestor being in the same degree, the descendant in the senior line is preferred.
Succession to the Zamindari is subject to the power of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improvement and cultivation of estate.
But if the nearest in the line of succession is not selected the estate must be given to the nearest heir who has the prescribed qualifications and is a successor to the Zamindar.
When the Zamindar is removed, succession takes place as if the Zamindar so removed had died.
By the use of the expression "nearest male relative" the test of propinquity alone may be applied and when there are two or more claimants equally removed from the common ancestor the eldest male member in the senior most line will be preferred.
In adjudging the plaintiffs claim the Court must determine whether Pratapshah father of the plaintiffs, was the nearest male relative of Amarshah.
On the death of Amarshah there were two male relatives they were Pratapshah father of the plaintiffs and the 1st defen dant Dayaram.
The contest between them had to be adjudged in the light of the rules of lineal primogeniture governing an impartible estate which are well established : Succession is governed by the rules which governs succession to partible property subject to such modifications only as flow from the character of the impartible estate; the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law; and in the absence of a special custom, the rule of primogeniture furnishes a ground of preference.
334 Subramanya Pandya Chokka Talawar vs Siva Subramanya Pillai(1).
In determining a single heir according to the rule of primogeniture the class of heirs who would be entitled to succeed to the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected.
Counsel for the first defendant submitted that under the terms of the Chanda Patent the Zamindari devolves on the death of the holder on the male relative who is the senior most in age, and not on the eldest member in the senior line.
There is nothing in the Chanda Patent which supports that contention.
By the use of the expression "nearest male relative" the rule of primogeniture is prescribed, it is not intended to confer the estate upon the eldest male relative of the Zamindar.
Counsel also submitted that under the terms of the Chanda Patent and the terms recorded in the Wajib ul arz the Governor having the right to determine inheritance and the right to remove a person who is not loyal or does not manage the property or does not improve the cultivation or who is guilty of bad behaviour or bad administration, it must be assumed that the holder of the Zamindari has merely a life interest and on the death of the holder, the Governor re grants the land consistently with the rules of succession according to the law and custom amongst the members of the family but subject to the dominant purpose of good administration and loyalty to the Government.
Counsel for the first defendant relied upon certain circumstances which he claimed established that the interest of the Zamindar was restricted to his life and on his death there was resumption and re grant of the Zamindari by the Governor.
Counsel submitted that the Zamindari was impartible and develoved upon the nearest male heir, that the sanction of the Governor was necessary for transfer, and also for recording inheritance, that loyalty, good management and improvement of cultivation were the conditions for holding the lands and that if the behaviour of the Zamindar was found unsatisfactory or that he was not capable of good adminis tration he was liable to be removed.
On that ground, said Counsel, the Government alone was competent to decide a dis pute arising out of inheritance.
But the power to take extraordinary steps to protect the interest of the Zamindari by the removed of the holder does not restrict the title of the Zamindar to a mere life interest.
The incidents of the tenure are restrictions on the estate of the Zamindar, but those restrictions do not make him a mere life tenant.
Under the Chanda Patent the lands of the Zamindari held by the family were confirmed in 1867 in favour of Sitaram.
On his (1)I. L. R. at p. 325.
335 death they devolved upon Hanmantrao.
There is no evidence that any fresh grant was made.
On the death of Hanmantrao the lands devolved upon his son Diwakarrao who died on September 8, 1932.
On the death of Diwakarrao dying without leaving any male descendant there arose a dispute between Pratapshah and Amarshah.
Pratapshah claimed to be the adopted son of Diwakarrao and on that ground entitled to take the Zamindari.
An inquiry was held and it was decided that Pratapshah failed to prove the adoption set up by him.
On the death of Amarshah again without leaving any male lineal descendant disputes arose.
The evidence is not clear as to whether any formal grant was issued in favour of Sitaram.
There is no evidence that recognition of the heirs of the successive Zamindars was accompanied by the issue of fresh patents or grants.
Succession was merely recognised by the revenue authorities.
The argument that the grant was for life of the grantee is therefore not supported by the terms of the Chanda Patent, nor by the entries in the Wajib ularz.
nor by the history of the Zamindari.
The right to determine inheritance it is true vests in the Governor but the power is exercisable in accordance with and not in violation of the custom of the family.
In determining the heir the Governor is not granting afresh the Zamindari; he merely determines the successor in accordance with the custom of the family.
The right of the Governor to remove a holder who is disloyal or does not manage his estate properly or does not improve cultivation or is otherwise of "bad behaviour" or guilty of bad administration, does not involve a condition that the interest of the Zamindar is only for his life.
When a holder of the Zamindari is removed, the Governor is bound to hand over the Zamindari to the next heir in the order of succession if the Zamindar removed had died and the heir will get the right.
Counsel, then contended that in any event the decision of the Governor in 1950 declaring Dayaram to be the successor on the death of Amarshah was 'binding and conclusive and could not be reopened.
Counsel urged that Pratapshah and the 1st defendant Dayaram were related to the common ancestor in the same degree, and it was open to the Governor to select one of the two members of the family related to the last holder in the same degree even though the person selected did not belong to the senior most line.
But if succession to the Zamindari is governed by the rule of lineal primogeniture, selection of a member of a branch in preference to a member of the senior branch would be plainly illegal.
Again, the evidence does not warrant the view that the Governor purported to pass any order in pursuance of the provisions of the Chanda Patent or the rules of succession recorded in 336 the Wajib ul arz.
The order of the Governor is in the form of a memorandum addressed to the Deputy Commissioner, Chanda, ,dated November 9, 1951 and it states that "Government are pleased to recognise Shri Dayaram Bapu son of Ballarshah Bapu Raj Gond as the Zamindar of Dhanora Zamindari in the Carchiroli tahsil of the Chanda District till the date of vesting of the Zamindari in the State Government".
There is no evidence that the Governor made any enquiry to determine the successor of Amarshah.
An order by the Gover nor purporting to exercise powers under the Chanda Patent con templates a quasi _judicial inquiry.
The order does not show that any inquiry was made for determining the rights of the contesting claimants or that any notice was issued to them or that they were heard before the Governor decided the issue.
There is nothing in the pleadings in that behalf.
The Governor is invested with quasi judicial power, and if there be a dispute.
the dispute must be decided after holding an inquiry, and the decision must be reached consistently with the rules of natural justice and in accordance with the custom of the family.
A bald statement that the "Government are pleased to recognise Dayaram Bapu son of Ballarshah Bapu as the Zamindar of Dhanora Zamindari" does not disclose the reason for rejecting the claim of Pratapshah who according to the custom of the family was "the nearest male relative".
There is no evidence on the record that the Governor was even aware that there were other claimants and if he was aware what their claims were and that the Governor had considered those claims before recognizing the claim of Dayaram.
In the 'absence of any evidence that the order was made by the 'Governor in exercise of the power conferred by the Chanda Patent it is unnecessary to consider whether any order made by the Governor is in exercise of the powers 'of the patent excludes the jurisdiction of the civil court.
The decision of Governor was apparently reached without any inquiry and was plainly contrary to the rules of Hindu Law and the custom of the family in the light of which alone the Governor was by the express mandate competent to adjudicate the claim.
It is true that there were mutation proceedings in regard to the Zamindari before the Naib Tahsildar Garchiroli Tahsil.
The Naib Tahsildar by his order dated May 9, 1951 held that the dispute relating to the mutation was raised by Pratapshah, that Amarshah had died issueless, that the genealogical tree set up by Daulatshah son of Pratapshah was incorrect being unsupported by reliable evidence,, that copies of settlement of 1867 were mere statements of interested persons, that the genealogical tree filed by Dayaram resembled the genealogical tree filed by Pratapshah 337 and was held to be genuine; that Amarshah had clearly admitted in his statement that Dayaram was entitled to succeed to the Zamindari after him and that Dayaram was the nearest male kinsman to the deceased Amarshah.
This decision of the Naib Tahsildar proceeded upon a genealogy produced by Dayaram which on the findings of the Trial Court as well as the High Court in this case is incorrect.
The decision of the Naib Tahsildar in a mutation proceeding even as a piece of evidence has little evidentiary value when it is founded on a material piece of evidence which was untrue.
The proceedings were carried in appeal before the Deputy Commissioner.
The Deputy Commissioner confirmed the order by his decision dated August 8, 1951.
He also accepted the genealogy set up by Dayaram and held that there were no other nearer male descendants in the branch and that Pratapshah was one degree more removed than Dayaram.
In view of the infirmity attaching to the genealogy relied upon by the Revenue Officer that decision has also little evidentiary value.
The orders passed by the Governor and the revenue authori ties do not exclude the jurisdiction of the civil court to decide the question of kinship.
In that view we agree.
with the High Court that the Zamindari originally confirmed in favour of Sitaram must according to the tenure as recorded in the Wajib ul arz devolve upon the first plaintiff Dawalatshah to the exclusion of the first defendant Dayaram.
The right in Malguzari land was since the death of Amarshah extinguished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951.
The Malguzari lands are by the devise contained in the will dated December 3, 1950 given to the plaintiffs.
Compensation in respect of the lands would therefore belong to the plaintiffs.
But it is urged that notwithstanding the devise, because of the order of the Claim Officer under Section 14 of Act 1 of 1951, the plaintiffs were not entitled to agitate the question of heirship.
It is enacted by section 3 of the Act that on and from a date to be specified by a notification by the State Government in that behalf, all proprietary rights in an estate, mahal, alienated village or alienated land as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances.
Section 4 sets out of the consequences of the vesting of the land in the Government by N irtue of the notification issued under section 3.
Section 8 provides for assessment of compensation payable to every proprietor, who is 8 L807SupCI/71 338 divested of proprietary rights.
The compensation is to be, determined in accordance with the rules contained in Sch.
Section 12 requires that a proprietor who is divested of proprietary rights by virtue of a notification issued under section 3 shall, within such period as may be prescribed, file a statement of claim in the prescribed form and specify the particulars mentioned therein.
Section 13 authorises the Compensation Officer to determine the amount of compensation.
Section 14 provides: "(1) If during the course of an enquiry by the Compensation Officer, any question is raised regarding the proprietary right in any property divested under Sec. 3 and such question has not already been determined by a court of competent jurisdiction, the Compensation Officer shall proceed to enquire summarily into the merits of such question and pass such orders as he thinks fit." (2) The order of the Compensation Officer under sub section (1) shall not be subject to any appeal or revision, but any party may, within two months from the date of such order, institute a suit in the civil court to have the order set aside, and the decision of such court shall be binding on the Compensation Officer, but subject to the result of such suit, if any, the Compensation Officer shall be final and conclusive".
Counsel for Dayaram urged that the Compensation Officer had decided by his Order dated August 30, 1951 that compensation in respect of the Malguzari land was payable to Dayaram and since no suit was filed by the plaintiffs for setting aside that decision, the order of the Compensation Officer became final and conclusive and could not be reopened in a suit filed more than six, years after that date.
We are unable to accept that contention.
The Compensation Officer is entitled to decide a question only regarding the proprietary right in the property divested under section 3.
He is not concerned with determination of any question relating to a private dispute between two or more persons who make competing claims in the matter of compensation, relying upon their respective titles.
A question regarding the pro prietary rights may in ordinary course be raised only in a claim against the State, and if that claim be decided against the claim ' ant in a summary inquiry held by the Compensation Officer, a suit to set aside the decision must be filed within two months from that date and if no suit is filed, the order becomes final and conclusive.
section 14 was enacted with a view to put an end to disputes with regard to the claims to proprietary rights which by 339 virtue of the notification issued under section 3 are extinguished.
It is not intended by an Order under section 14 to determine complicated questions of title by the adjudication of a revenue officer in a summary inquiry without even a right of appeal and to make his adjudication conclusive unless a suit be filed within two months from the date of the order.
That is also clear from the terms of section 35(7) of Act 1 of 1951 which provides "The payment of compensation under this Act to the creditors of a proprietor or to the proprietor in accordance with the prescribed manner shall be a full discharge of the State Government from all liability to pay compensation for the divesting of proprietary rights, but shall not prejudice any rights in respect of the said rights to which any other person may be entitled by due process of law to enforce against the person to whom compensation has been paid as aforesaid".
The Civil Court is declared competent to determine disputed questions with regard to title to 'compensation.
We agree With the High Court that section 14 of Act 1 of 1951 does not invest the Compensation Officer.
with jurisdiction to determine competing claims, of persons claiming proprietary rights to the property vesting in the Government by the operation of section 3 of the Act.
Section 14 is intended to determine only the proprietary rights in the land, qua the State.
Finally it was urged that the Trial Court granted Rs. 10,000/as mesne profits, and even though the, High Court disallowed the claim of the plaintiffs with regard to certain items no reduction was made in the total amount of mesne profits awarded corresponding to the claim disallowed.
Counsel for the plaintiffs concedes that the High Court was in error in not reducing the amount of mesne profits awardable to the plaintiffs.
He agrees that instead of the figure of Rs. 10,000/ awardable to the plaintiff Rs. 8,000/ should be substituted.
We modify the mesne profits awarded.
Subject to this modification, this appeal fails and is dismissed with costs.
K.B.N. Appeal dismissed.
[/INST]The appellant, who was an income tax Officer, was, dismissed from service and against the order of dismissal he filed an appeal to the President of India.
Meanwhile, he was charged under the Prevention of Corruption Act, 1947, with the offence of habitually accepting bribes.
Five instances were offered by the prosecution in evidence against him to prove the charge.
The trial court accepted the evidence regarding two instances, and convicted the appellant under section 5(2) read with sections 5(1)(d) and 5(3) of the Act drawing the presumption under section 5.(3) (before its amendment in 1964) against him on the ground that he was in possession of assets disproportionate to his known sources of income.
He was sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 1,25,000/ , to be recovered from the properties siezed from him.
The High Court accepted the evidence regarding one more instance and confirmed the conviction and sentence.
In appeal to this Court, HELD : (1) The trial is not bad for lack of santcion under section 6 of the Act.
The appellant ceased to be a public servant when the order of dismissal was passed.
The fact that an appeal was pending would not make him a public servant.
Sanction is necessary only when the person is employed in connection with the affairs of the Union and not when he was employed.
[241 D F] (2)Since the charge was one of habitually accepting bribes it was not necessary that specific instances of taking bribe should be given in the charge.
[241 G] Biswabhusan Naik vs State of Orissa, ; , followed.
(3) The appellant had property disproportionate to his known sources of income and the presumption under section 5(3) of the Act was rightly drawn against him.
Failure to establish any of the offences in section 5(1) (a) to (d) is irrelevant for sustaining a conviction based on the presumption.
Biswabhusan Naik vs State of Orissa, ; and C. S.D. Swamy vs State, ; , followed.
Surajmal Singh vs State of Uttar Pradesh, [1961] 2 S.C.R. 971 and R. section Pandit vs State of Bihar, [1963] Supp.
2 S.C.R., 652, referred to and explained.
[245 C] (4) In view of the fact that the appellant had undergone the sentence for about four months and a large fine was imposed on him, the ends of justice would be met if the sentence is reduced to one already undergone while maintaining the sentence of fine.
[246 B C] 237
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 129 of 1971 .
Appeal by Special Leave from the Judgment and order dated the 4th March, 1971 of the Bombay High Court at Bombay in Criminal Appeal No. 1502 of 1969.
R B. Datar and Rajen Yash Paul, for the Appellant.
M. N Shroff, for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
The appellant and one Mohd. Yusuf Gulam Mohd. were charged for an offence under section 379 read with s 34 of the Indian Penal Code for snatching two sarees from one Govind whilst he was carrying them from the show of his master to that of a washer and dyer.
The learned Presidency Magistrate, who tried the case, accepted the prosecution evidence and found the appellant and Mohd. Yusuf Gulam Mohd. guilty of the offence under section 379 read with section 34 and 664 Sentenced each of their to suffer rigorous imprisonment for six months.
It does not appear from the judgment of the learned Presidency Magistrate that, though the appellant was only seventeen years and three months old at the date of the offence and the offence was not punishable with imprisonment for life, the attention of the learned presidency Magistrate was invited to the provisions of section 6 of the Probation of offenders Act, 1958.
The appellant preferred an appeal against the order of conviction and sentence to the High Court of p Bombay but the appeal was unsuccessful.
The High Court took the same view of the evidence as the learned Presidency Magistrate and confirmed the conviction of the appellant under section 379 read with section 34.
So far as the question of sentence was concerned, a submission was made on behalf of the appellant that since he was a young boy of about seventeen years and three months and this was his first offence, leniency should be shown tow him.
But the High Court r observed that age alone was not sufficient to invoke the mercy of the Court and the appellant had not done anything since the date of the offence to deserve the mercy of the Court and it did not, therefore, see any reason to interfere with the sentence of imprisonment passed against the appellant.
It appears that once again the provisions of section 6 of the Probation of offenders Act, 1958 were not specifically brought to the notice of the High Court and the sentence of imprisonment was maintained by the High Court without applying its mind to those provisions.
Hence the appellant preferred a petition for special leave to this Court and on that petition, this Court granted special leave limited to the question "whether the provisions of the Probation of offenders Act should have been applied in the case".
We are concerned in this appeal with section 6 of the Probation of offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act.
Subsection (1) of section 6, on a plain grammatical reading of its language, provides that when any person under twenty one years age is found guilty of having committed an offence punishable with imprisonment, but not with imprisonment for life, the Court, by which the person is found guilty, shall not impose any sentence of imprisonment, unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender it would not be desirable to deal with him 665 him under section 3 or section 4.
This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the state of trial court but also at the stage "High court or any other Court when the case comes before it on appeal or in revision. '.
Vide section 11, sub section
(1) of the Act.
It is, therefore, obvious that even though the point relating to the applicability of section 6 was not raised before the learned Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society.
Here, we find that whatever date be taken as the relevant date for determining the applicability of section 6 whether the date of the offence or the date of the judgment of the learned Presidency Magistrate or the date of the judgment of the High Court the appellant was below twenty one years age.
The offence of which he is found guilty is an offence under section 379 read with section 34 and it is clearly an offence punishable with imprisonment but not with imprisonment for life.
The conditions requisite for the applicability of section 6 are, therefore, plainly satisfied and under section 6, Sub section
(1) it is not competent to the Court to impose ant sentence of imprisonment on the appellant, unless the Court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the appellant, it would not be desirable to deal with him under section 3 or section 4.
It is true that sub section
(2) of section 6 requires that for the purpose of satisfying itself whether it would not be desirable to deal with the appellant under section 3 or section 4, the Court is required to call for a report from the Probation officer and consider the report, if any, but we do not think it necessary in the present case to call for any report from the Probation officer nor to remand the case to the learned Presidency Magistrate for passing an appropriate order after calling for a report from the Probation officer and considering it.
We have on record the antecedent history giving the background of the appellant.
The appellant was at one time a well known child film actor and he actually won several awards for acting in films.
It appears that at some subsequent stage he fell in bad company and took to evil ways The offence which he is convicted is, no doubt, an offence as theft which cannot be lightly ignored, but it is comparatively of a minor characters in that only two sarees were snatched away from the hands of Govind, perhaps under the stress of economic necessity.
Moreover, this is a false offence of the appellant.
We are, therefore, not at all satisfied 12 L925SupCI/75 666 that it would not be desirable to deal with the appellant under section 3 or section 4 and consequently, the sentence of imprisonment passed on the appellant must be set aside.
We accordingly set aside the sentence of imprisonment passed on the appellant and direct that he be released on his entering into a bond wit one surety in the sum of Rs. 500/ to appear in the Court of the Presidency Magistrate to receive sentence, whenever called upon to do so within a period of six months and during that period to keep the peace and be of good behaviour.
The learned Presidency Magistrate is directed to take the necessary bond from the appellant and the necessary surety bond from a surety to his satisfaction.
The appellant will continue on bail till such time as these directions are carried out, after which the bail bond will stand canceled.
P.B.R. Appeal allowed.
[/INST]Certain lands belonging to the appellants were compulsorily acquired under the Hyderabad Land Acquisition Act for running a country fair or market (mondha).
After the acquisition, the municipality parcelled out the excess land and sold it for a housing colony.
The High Court dismissed the appellants ' writ petition, in limine.
On appeal to this Court it was contended that the acquisition was not for a public purpose and that it was mala fide.
Dismissing the appeal, ^ HELD: (1)(a) Providing a village market is an obvious public purpose.
[876C D] (b) A mondha is a country fair or village market.
Market is defined in section 2(20) of the Hyderabad District Municipalities Act in wide terms and section 72 of the said Act enumerates the purposes for which property may be vested in a municipality.
This includes markets.
It inexoorably follows from a joint reading of Ss. 2(20) and 72(a) of the District Municipalities Act that the purpose of providing a market for the townsfolk falls within the powers of the municipality.
[876G H] (2)(a) Striking down any Act for mala fide exercise of power is a judicial resered power exercised lethally, but rarely.
The charge of mala fides against public bodies and authorities is more easily made than made out.
It is the last refuge of a losing litigant.
[876D] (b) What has to be established is mala fide exercise of power by the State Government although the beneficiary is the municipality.
There is no evidence of malus animus in Government.
[877B] (c) Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and title has vested in the municipality how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition.
There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration.
[877C]
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<s>[INST] Summarize the judgementAppeal No. 204 of 1958.
Appeal from the judgment and decree dated January 6, 1956, of the Calcutta High Court in Income tax Reference No. 74 of 1953.
K. N. Rajagopal Sastri, R. H. Dhebar and D. Gupta, for the appellant.
Radha Binod Pal, Panchanan Pal and D. N. Mukherjee, for the respondents.
March 26.
The Judgment of the Court was delivered by SINHA, J.
The question for determination in this appeal on a certificate of fitness granted by the High Court of Calcutta, is whether the respondent 's admitted income tinder certain heads, is chargeable to income tax under the provisions of section 10(6) of the Indian Income tax Act, 1922 (XI of 1922) (hereinafter referred to as the Act).
The Calcutta High Court, by its judgment dated January 6, 1956, answered the question in the negative, disagreeing with the determination of the Income tax Appellate Tribunal by its order dated April 23, 1949.
The facts of this case, upon which the decision of the appeal depends, may shortly be stated as follows: The respondent is a limited liability company incorporated on June 7, 1933, with a view to taking over the assets and liabilities of an unincorporated association called " The Calcutta Stock Exchange Association 461 and to carrying on the affairs of the Stock Exchange which had been founded by that Association.
The principal object of the Respondent Company is to facilitate the transaction of business on the Calcutta Stock Exchange.
In view of that objective, the Company had to make rules and by laws, regulating the mode and the conditions in, and subject to, which the business of the Stock Exchange had to be transacted.
The Company is composed of " members " who may be either individuals or firms, who, except in the case of parties who had been members of the unincorporated Association have to be elected as such, and upon such elections, have to acquire a share of the Company and pay an entrance fee.
The members have to pay a monthly subscription according to the by laws of the Company.
Under the by laws of the Respondent Company, members with a certain standing, are allowed to have "Authorized Assistants ", upto a maximum of six in number.
Such Authorized Assistants are permitted the use of the premises of the Association and to transact business therein in the names and on behalf of the members employing them.
The members have to pay an admission fee for such Authorized Assistants according to the following scale : (a) for the first two Assistants Rs.1,000 (b) for the third Assistant Rs.2,000 (c) for the fourth Assistant Rs.3,000 (d) for the fifth Assistant Rs.4,000 (e) for the sixth Assistant Rs.5,000 (f) for replacement Rs.1,000 The last item of replacement fee of Rs. 1,000/ is meant to cover the fee for substituting one Assistant by another.
Before these by laws were amended with effect from July 10, 1944, a member could have more than six such Assistants, but the number was limited to six by the new amendment which also provided that " Members who have more than six Assistants, at present, shall not be allowed any replacement unless the number of Assistants in their firms has come down to six (maximum fixed).
" Rule (5), as amended, is in these terms: 462 "Every candidate applying for admission as Assistant to a member must serve at least for one year as a probationer in the firm of that member.
A probationer must apply to the Committee (through the member in whose office he will serve as probationer) in such form as may be prescribed by the Committee by paying Rs. 100/ as probationer fee which will not be refunded in any circumstances ".
It would, thus, appear that the rules relating to the admission of members ' Assistants, confer the benefit upon those members only either individuals or firms who are qualified according to the by laws to have such Assistants, and who have paid admission fees and pay a monthly subscription in respect of each of them, besides their own dues, to the Company.
The number of such Assistants has been sought by the by laws to be limited upto a maximum of six, by imposing a progressively enhanced admission fee, apparently, with a view to discouraging the employment of a large crowd of such " Authorized Assistants".
The by laws also provide that "an authorized assistant shall not enter into any contracts on his own behalf and all contracts made by him shall be made in the name of the member employing him and such member shall be absolutely responsible for the due fulfilment of all such contracts and for all transactions entered into by the authorized assistant on his behalf" It is also contemplated by the by laws that tickets have to be issued to the Authorized Assistants, besides the members ' tickets.
The bylaws also contemplate that a member shall give to the prescribed Authority of the Company an immediate notice in writing, of the termination of the employment by him of any Authorized Assistant, and on such termination, the right of the Assistant to use the rooms of the Association, shall cease, and he shall not be at liberty to transact business in the name and on behalf of his employer.
The by laws also make provision for the supervision of the work of the Authorized Assistants to see that they function within the limits of their powers, and do not transact 463 business on behalf of persons or firms other than those employing them.
During the accounting year 1944 45 assessment year 1945 46), the Respondent Company received from its members the sum of Rs. 60,750/ as entrance fees, and the sum of Rs. 15,687/ as subscription in ' respect of the Authorized Assistants.
The Company also received during the aforesaid year, a sum of Rs. 16,000/ as fees for putting the names of companies on the Quotations List.
Unless a particular company 's name is placed on the Quotations List, no dealings in respect of the shares of that company are permitted on the Stock Exchange.
An application has to be made by a member to place on the Quotations List any company not already included in that List, and on approval by the prescribed Authority of the Company, the name of the company thus proposed, is included in the List upon payment of a certain fee.
The companies themselves cannot apply to the Association for such enlistment.
The application has to be made by a member, and has to be accompanied by a fee of Rs. 1,000/ , and it is only after the necessary scrutiny and investigation into the affairs of the proposed company have been made, that the enlistment applied for is granted.
That is another source of income to the Respondent Company.
It is no more necessary to refer to another item of income, which was admitted, during the course of the assessment proceedings in their appellate stage, to be liable to the payment of tax.
We are, thus, concerned in the present controversy with the aforesaid sums of Rs. 60,750/ , Rs. 15,687/ and Rs. 16,000/ which were held by the Income tax Officer, by his order dated March 27, 1946, to be liable to income tax.
The Income tax Officer rejected the contention raised on behalf of the assessee Company that the Authorized Assistants aforesaid were themselves members of the Company, and that therefore, the moneys received from them were exempt from taxation.
He also held that though the Respondent Company was a mutual Association, each one of the three items of income, referred to above, was remuneration definitely related 464 to specific services performed, and was thus, chargeable to tax within the meaning of section 10(6) of the Act.
On appeal, the Appellate Assistant Commissioner, by his order dated June 30, 1947, considered the points at great length, and came to the conclusion that the authorized Assistants were not members or substitute members.
He held that the Authorized Assistants were no more than representatives of the members who employ them, and they transact business on their behalf, and that the Association had framed rules and by laws, regulating the admission, supervision and discontinuance of such Authorized Assistants.
For coming to this conclusion, he relied upon the decision of the Bombay High Court in the case of Native Share and Stock Brokers ' Association vs The Commissioner of Income tax(1).
The case was then taken up in appeal to the Income tax Appellate Tribunal, which dismissed the appeal.
The Tribunal agreed with the finding of the taxing authorities that the Authorized Assistants were not members of the Company within the meaning of the Articles of Association of the Company, and that their position was analogous to that of the " authorised clerks in Native Share and Stock Brokers ' Association at Bombay ".
In the course of its order, the Tribunal observed as follows: " The provision made in the regulations of the company, by which a member can take advantage of sending his authorised assistants to the company for transacting the business in the member name is nothing but giving extra facilities to the members.
By controlling the institution of authorised assistants the company renders specific services to the members and in particular to the member whose assistants work for him.
The amounts received by the company from these sources are clearly covered by the provisions of section 10(6) ".
At the instance of the assessee, the Tribunal stated a case and referred the following questions of law to the High Court for its decision under section 66(1) of the Act: " (1) Whether on the facts of this case the Incometax Appellate Tribunal was right in holding that, (1) 465 Authorised Assistants were not members of the company and as such the amounts of Rs. 15,687/ and 60,750/ received from them as subscriptions and entrance fees respectively should be included in the assessable income.
(2) Were these amounts received for specific services performed by the Association or its members within the meaning of sub section (6) of section 10 of the Indian Income tax Act ? (3)Whether the sums of Rs. 16,000/ and Rs. 600/ were remuneration definitely related to specific services performed by the Association for its members within the meaning of subsection (6) of section 10 ".
The reference was heard by a Division Bench consisting of Sir Trevor Harries, C. J., and Banerjee, J., of the Calcutta High Court.
Before that Bench, certain concessions were made.
It was conceded by Dr. Pal, who also appeared before that Bench, that the Authorised Assistants were not members of the Company.
It was also agreed at the bar, on behalf of both the parties, that the two sums of Rs. 60,750 and 15,687 were not received from the Authorized Assistants, as suggested in the question formulated, and that it was common ground that they were received from members of the Association in respect of their Authorized Assistants.
Therefore, the High Court took the view that the questions framed by the Tribunal did not arise, and that the Tribunal bad proceeded on a wrong basis of facts.
The High Court, therefore, re cast the questions in these terms: " Whether in the facts and circumstances of this case the Income tax Appellate Tribunal was right in holding that (a)the amounts of Rs. 15,687/ and Rs. 60,750/ received from the members of the Association as subscriptions and entrance fees in respect of Authorized Assistants, and (b) the amounts of Rs. 16,000/ and Rs. 600/ received as fees for enlisting names of newly floated companies and for recognition of changes in the styles of firms respectively should be included in the assess.
able income of the assessees 59 466 The Tribunal was asked to re state a case upon the questions as re cast, extracted above.
Accordingly, the Tribunal drew up a fresh statement of the case and re submitted it to the High Court.
On this re statement of the case, the matter was heard by a Bench consisting of Chakravarti, C. J., and Sarkar, J.
The High Court considered the terms of section 10(6) of the Act, and came to the conclusion that the case had not been brought within those terms.
The High Court, in the course of its opinion, observed that though the assessee is undoubtedly a trade association, it did not perform any specific services for its members for remuneration.
It then examined in detail the decision of the Bombay High Court in the case of Native Share and Stock Brokers ' Association vs The Commissioner of Income tax (1), relied upon by the Department, and observed that the differences pointed out between the case in hand and the case decided by the Bombay High Court, were " not vital, though they are not immaterial ", but it was not prepared to take the same view of the facts of this case as had been taken by the Bombay High Court in the case referred to above, or by the Travancore Cochin High Court in the case of Commissioner of Income tax vs Chamber of Commerce, Alleppey (2).
The High Court, accepted the argument of Dr. Pal, which is also addressed to us, that the words " performing specific services for " were far stronger and more definite than the words " render service to ", and that those words meant the actual doing of definite acts in the nature of services.
The Court further observed that those words meant " execute certain definite tasks in the interests and for the benefit of the latter (that is to say, the members) under an arrangement of a direct character ".
It further observed that the words " for remuneration" and " definitely related to those services " meant that " certain specific tasks must be performed or functions of a specific character must be discharged for payment and such payment is to be made to the association as wages for its labour in respect of those tasks or functions ".
In this connection, (1) (2) 467 it may be added that the High Court also made the following observations bearing on the construction of the crucial words of section 10(6): " When section 10(6) speaks of a trade, professional or other similar association performing specific services for its members for remuneration, it contemplates, I think, services in regard to matters outside the mutual dealings for which the Association was formed and for the transaction of which it exists as a mutual association.
If performance of functions even in regard to matters within the objects of the association as a mutual association be performance of specific service within the meaning of the sub section, dis charge of no function can be outside it and everything done would be specific service performed.
That, I do not think, is what the sub section means and intends ".
It is manifest that unless the assessee is brought within the terms of sub section (6) of section 10, the three items of income coming into the hands of the Association, would not be chargeable to income tax.
That subsection is in these terms: " (6) A trade, professional or similar association performing specific services for its members for remu neration definitely related to those services shall be deemed for the purpose of this section to carry on business in respect of those services ' and the profits and gains therefrom shall be liable to tax accordingly ".
It has to be observed at the outset that the performing of the services of the description mentioned in that sub section, may not, but for the words of that section, have amounted to carrying on business in respect of those services.
The use of the word " deemed " shows that the legislature was deliberately using the fiction of treating something as business which otherwise it may not have been.
It is also noteworthy that the sub section is couched in rather emphatic terms.
We have, therefore, to examine the terms of the sub section to see whether the three sums of money in question, or any of them, are or is within the ambit of those terms.
The words " performing specific services ", in our opinion, mean, in the context, " conferring particular benefits " on the members.
The word 468 " services " is a term of a very wide import, but in the context of section 10 of the Act, its use excludes its theolo gical or artistic usage.
With reference to a trade, pro fessional or similar association, the performing of specific services must mean conferring on its members some tangible benefit which otherwise would Dot be available to them as such, except for payment received by the association in respect of those services.
The word " remuneration ", though it includes " wages ", may mean payment, which, strictly speaking, may not be called wages ".
It is a term of much wider import including recompense ", " reward ", " payment ", etc.
It, therefore, appears to us that the learned Chief Justice was not entirely correct in equating " remuneration " with " wages ".
The sub section further requires that the remuneration should be " definitely related " to the specific services.
In other words, it should be shown that those services would not be available to the members or such of them as wish to avail themselves of those services, but for specific payments charged by the association as a fee for performing those services.
After these observations bearing on the interpretation of the crucial words, we shall now examine each of the three items of income, separately, to determine the question whether they answer, or any of them answers, the description of " services " contemplated by the sub section.
Firstly, the sum of Rs. 60,750 has been realised from such members as applied for and obtained permission of the Association to have the use of Authorized Assistants within the precincts of the Stock Exchange.
There cannot be the least doubt that unless those members paid the prescribed entrance fees for one or more Authorized Assistants upto a maximum of six, they could not have the benefit thus conferred upon such members.
Ordinarily, a member has to transact business in the precincts of the Association by himself or by his business partner if there is a firm ; but if that member is a very busy person, and wishes to avail of the services of Authorized Assistants, he has to pay the the prescribed fee.
A member of the Association, with the advantage of mutuality, so long as he transacts 469 business within the precincts of the Association, by himself or by his partner in the case of a firm, is not required to pay any such entrance fee but only the fee payable by every member as such.
The entrance fee, thus, is clearly chargeable only from such of the members as avail themselves of the benefit conferred by the rules of the Association in that behalf.
The entrance fee is, thus, a price paid for the services of the Association in making suitable arrangements for an absentee member to transact business on his behalf and in his name by his representative or agent.
The entrance fee in question, therefore, cannot but be ascribed to the specific services rendered by the Association in respect of Authorized Assistants who thus become competent to transact business on behalf of their principal.
Coming next to the sum of Rs. 15,687 which was realised from the members by way of subscription in respect of their Authorized Assistants, it is clear that this sum consists of the contributions severally made by the members periodically, so as to continue to have the benefit conferred by the Association of having the use of their representative or agent even during their absence.
There cannot be the least doubt that this is a very substantial benefit to those members who found it worth their while to engage the services of Authorized Assistants.
A member is not obliged, as indicated above, to have such an Assistant, but the fact that he chooses to have such an Assistant on payment of the prescribed fee or subscription, itself, is proof positive that a businessman, who ordinarily thinks in terms of money, has found it worth while to have the services of an Assistant by making an additional payment to the Association by way of recompense for the benefit, thus conferred upon him.
Lastly, the sum of Rs. 16,000 represents fees received from members for allowing their application for enlisting the names of companies not already on the Quotations List, so that the shares and stocks of these companies, may be placed on the Stock Market.
As already indicated, it is not the company concerned which has directly to pay this fee, but the fee has to 470 be paid by the member who initiates the proposal and, apparently, finds it worth his while to pay that prescribed fee to the Association.
He would not make the payment unless he found it worth his while to do so Apparently, such a member is interested in placing the stocks of that company on the market.
It cannot, therefore, be denied that that sum of money is definitely related to the specific services performed by the Association, namely, to permit transactions in respect of the shares of the company concerned, which services would not otherwise be available to the members as a body or to the individual member or members interested in that company.
In our opinion, therefore, each one of the three sources of income to the Association, accrues to it on account of its performing those specific services in accordance with its rules and by laws.
Each one of the three distinct sources of revenue to the Association, is specifically attributable to the distinct services performed by the Association for its members or such of them as avail themselves of those benefits.
And each one of those services is separately charged for, according to the rate or schedule laid down by the rules and by laws of the Association.
In our opinion, therefore, the requirements of sub section
(6) of section 10, have been fulfilled in the present case.
But we have yet to deal with the last argument accepted by the High Court, with reference to the terms of sub section
(6) of section 10, namely, that the services contemplated therein, have reference to " matters outside the mutual dealings for which the Association was formed ".
In the first place, there is no warrant for limiting the application of the words used by the legislature, in the way suggested.
Secondly, the mutuality of the Association extends only to such benefits as accrue to every member on the payment made by him to the Association, but even if additional items of payment have to be made for additional services to be performed by the Association only for such of the members as avail themselves of those benefits, it cannot be said that the mutuality extends to those additional benefits also.
It is, in our opinion, 471 equally wrong to suggest that the services in question should have been outside the objects of the Association.
If the Association renders services to such of its members as avail themselves of such services as are not within the scope of the business activities of the Association, those benefits, if any, would not be ' conferred by the Association as such, because the Association has to function within the scope of its objects of incorporation.
Hence, on a true construction of the provisions of the sub section in question, we have come to the conclusion that the facts and circumstances of the present case, bring the three items of income of the Association within the taxing statute.
In our opinion, the decision of the Bench of the Bombay High Court, consisting of Stone, C. J., and Kania, J., (as he then was), in the case of Native Share and Stock Brokers ' Association vs Commissioner of Income tax is correct, and the facts of that case run very parallel to those of the case in band, though there may be minor differences in the rules and by laws of the Association then before the Bombay High Court.
In that case, as in the present one, the rules of the Stock Brokers ' Association (the Bombay Stock Exchange) contemplated a definite scheme for allowing members to employ authorized clerks and for the admission, conduct, control and supervision of those clerks, for the benefit primarily of the members who employed them.
It was held by the High Court that the income received by the Association by way of fees in respect of those authorized clerks, was within the taxing statute and liable to income tax.
After examining in detail the provisions of the rules and the by laws of the Association, Stone, C. J., made the following observations which are equally applicable to the rules and by laws of the Association in the present case : " In my judgment these rules lay down a definite scheme and provide an organised arrangement, controlled and supervised by the Association for the benefit of its members.
In my opinion the carrying (1) 472 of their scheme into effect is performing services for its members by the Association.
No doubt the benefit of the scheme would redound to the benefit of all members since all would have the advantage of disciplined supervision exercised over the authorised clerks and remisiers of the others.
I do not think that because the payment for the carrying of the scheme is provided for only by members who avail themselves of the use of the authorised clerks it makes any difference.
" Kania, J., (as he then was), in a separate but concurring judgment, made the following very pertinent observations: " A perusal of the rules referred to in the judgment of the learned Chief Justice shows that the institution of authorised clerks exists for the benefits only of those who pay remuneration of Rs. 100 instead of going to the market and carrying on their business themselves.
Individual members are permitted to work through an agent.
For that the charge is made.
The rules provide for the application and grant for such permission, registration of the authoris ed clerks on the individuals being recognised as clerks of particular members, supervision over the work of such clerks and particularly to prevent them from registering contracts either in their own name or in the name of another member; and a general supervision over their good behaviour is contemplated. . ".
A question was raised as to whether these are specific services to be performed for particular members or whether the rules amount to performance of duties towards members in general.
It is true that several of the services to be rendered may be helpful to the other members for their business.
Taken as a whole I consider that as a performance of services by the Association for, the benefit of members who pay the remuneration.
" We have made these copious quotations from the judgment of the Bombay High Court, because, in our 473 opinion, they truly apply the provisions of sub section
(6) of section 10 to associations like the one before us.
The other case to which our attention was drawn, is Commissioner of Income tax vs Chamber of Commerce, Alleppey (1).
The facts of that case are not similar to those of the case before us, but the ratio decidendi of that case are relevant.
That case referred to the Alleppey Chamber of Commerce.
The Chamber inaugurated a produce section with the object of promoting the interests of merchants in general, and of those engaged in the produce trade, in particular, of acting as arbitrators and collecting and publishing information relating to the produce trade.
Members were admitted to the produce section on payment of admission fees, monthly fees and contributions at certain prescribed rates.
The question which was referred to the High Court, was whether the receipts by way of fees and contributions, could be chargeable under section 10(6) of the Act, and it was answered in the affirmative.
Though cases in England, by way of precedent for the decision of the case in hand, have not been cited at the Bar, apparently because the scheme of the Income tax law in England is different and the words of the statute are not in parti material yet there are some cases which throw some light on the controversy before us.
For example, the case of The Carlisle and Silloth Golf Club vs Smith (Surveyor of Taxes) (2 ) related to a golf club which was not incorporated.
It was admittedly a bonafide members ' club, but under one of the terms of its lease, it had to admit non members to play on its course on payment of " green fees " at certain prescribed rates.
Those fees were paid by non members.
Receipts from those fees were entered in the general accounts of the Club, thus, showing an annual excess of receipts over expenditure of the Club as a whole.
It was held by Hamilton, J., (as he then was), that the Club carried on a concern or business in respect of which it received remuneration which was assessable to 'income tax.
He pointed out that the (1) (2) 60 474 receipts from non members went to augment the funds of the Club, and the revenue thus received was applied for the purposes of the Club towards its general expenditure.
The case was taken up to the Court of Appeal, and the decision of that Court is reported in the same Volume at p. 198.
The Court of appeal affirmed the decision and dismissed the appeal.
The Judgment of the King 's Bench Division in The Liverpool Corn Trade Association, Limited vs Monks (H. M. Inspector of Taxes) (1) was based on facts which are similar to the facts of the present case.
In that case, the Liverpool Corn Trade Association, Limited, was an incorporated body under the Companies Act, with the object, inter alia, of protecting the interests of the corn trade, and of providing a clearing house, a market, an exchange, and arbitration and other facilities to the trade.
Membership of the Association was confined to persons engaged in the corn trade.
Each member was required to have one share in the company, and had to pay an entrance fee and an annual subscription.
Non members could also become subscribers.
Payments were made to the Association by members and others for services rendered through the clearing house, etc.
The assessee was taxed on the excess of its receipts over expenditure.
On appeal to the Special Commissioners, they upheld the assessment.
One of the points raised before the Special Commissioners, was that transactions with its members were mutual ones, and that any surplus arising from such transactions, was not a profit assessable to income tax.
On appeal, the High Court agreed with the determination of the Special Commissioners, and held that any profit arising from the Association 's transactions with members, was assessable to income tax as part of the profits of its business, and that the entrance fees and subscriptions received from members must be included in the computation of such profits.
It was suggested that the service in this case, if any, was extremely trivial and the remuneration which was large was for that reason not definitely related to the (1) 475 service.
It was held by Upjohn, J., in Bradbury (H. M. Inspector of Taxes) vs Arnold (1) that the extent of the services was of no materiality.
There, the question was being dealt with under Case VI of Schedule D of the Income tax Act, 1918.
The learned Judge observed : " There is no doubt that a contract for services may, and clearly does, form a matter for assessment under Case VI of Schedule D, and not the less so that the services to be rendered are trivial or that they are to be rendered once and for all so that the remuneration may be regarded as a casual profit arising, out of a single and isolated transaction".
The same view was expressed by Harman, J., in Housden (Inspector of Taxes) vs Marshall (2).
In that case, a well known jockey 'contracted with a newspaper company to make available to its nominee " reminiscences of his life and experiences on the turf for the purpose of writing a series of four articles ", and to provide photographs, press cuttings, etc.
He was paid pound 750.
The question was whether this amounted to sale of property, or was a payment for services rendered.
It was held that it was the latter, and that it did not matter if the service rendered was trivial.
In view of what we have said above as to the nature of the service which the Association performed in respect of the Assistants, the payment of the fee was definitely related to that service.
It is, therefore, plain that the case fell within section 10(6) of the Act.
It must, therefore, be held that the question referred to the High Court should have been answered in the affirmative, and that the High Court was in error in giving its opinion to the contrary.
The appeal must, accordingly, be allowed with costs here and below.
(1) , 669.
Appeal allowed.
[/INST]The appellant and his wife went to sleep in the back varandah of their house on the fateful night of 25th/26th July, 1976 while the appellant 's brother alongwith his wife and children went to sleep separately in their bed room in the same house.
The Police Control Room was informed over the telephone by a neighbour Sulekh Chand Jain at 4.55 A.M. that an incident had taken place in the house and on receiving the telephone message, the S.I. made a record of it in the daily diary and passed on the information to the duty officer at the police station, who deputed an A.S.I. to proceed to the spot for investigation.
After reaching the spot, the A.S.I. informed the police station on telephone that a murder had taken place.
The information was recorded and the SHO immediately left for the spot alongwith S.I.
The police party arrived at the spot at about 5.35 a.m. and took charge of the investigation.
The appellant was present near the dead body and on interrogation, the appellant informed the police party that his brother and family had retired for the night in their bed room at about 10.00 P.M. and he alongwith his wife had slept in the back verandah, and that when he got up at 3.45 A.M. he noticed that his wife had been murdered by somebody by strangulation while committing the theft of the gold chain, eartops and golden bangles that she was wearing.
The crime team as well as the dog squad were summoned.
Both the 227 dogs of the dog squad were first let loose and after picking up the smell from the lock lying in the corner of the back courtyard and from the spot, went to the room where the appellant was sitting and each of the dogs pointed towards him by turn.
That raised a suspicion against the appellant.
The SHO then asked the appellant to remove his shirt and found that the appellant had injuries in the nature of bruises etc.
on the front part of his, body, on the chest, as well as on his back, The appellant was thereafter taken for further interrogation to the police station, and in the presence of the Sub Inspector, PWI and PW2 he made a disclosure statement to the effect that he had concealed the golden chain and the bangles in his bathroom and in pursuance of the disclosure statement, the appellant led the police party to the bathroom of his house and after removing the cover from the drain hole, took out the golden chain and the bangles and handed them over to SHO.
The appellant was placed under arrest.
After the disclosure statement was made the case which was originally registered under Section 460 IPC was converted into one under Section 302 read with section 203 IPC.
After completion of the investigation, the challan was filed against the appellant and he was tried for offences under Section 302/203 IPC in the Court of the Additional Sessions Judge.
The prosecution sought to establish the case against the appellant on the basis of circumstantial evidence, there being no eye witness of the occurrence.
The circumstances set up by the prosecution were : (i) information to the police at 4.55 A.M given by a neighbour and not the appellant; (ii) that information that a murder had taken place was not given but intimating the happening of an incident; (iii) The accused having slept at night in the verandah with tile deceased after having locked the collapsable door of the verandah from inside; (iv) The deceased and accused were last seen together; (v) The dogs of the dog squad having pointed out to the accused after picking up scent from the lock; (vi) The ornaments which were on the person of the deceased while she was sleeping, and found missing when she was discovered dead, were recovered from the drain hole of the bath room attached to the bed room of the accused in consequence of and in pur suance to the disclosure statement made by the accused; (vii) injuries found on the person of the accused in the nature of abrasions, contusions, and (viii) the accused having given false information to the police by means of his statement Ext.
228 The Sessions Judge after carefully analysing the aforesaid circumstances held that the prosecution has entirely failed to prove any of the circumstances set up against the accused, much less to establish the chain of circumstances, so as to bring out a nexus between the crime and the accused, and acquitted the appellant for the offences under Section 302/203 IPC.
The State appealed to the High Court and a Division Bench reveresed the order of acquittal of the appellant.
The High Court held that the circumstances formed a chain and the sequences were so complete by themselves that one was left in no manner of doubt that the appellant alone had committed the crime.
The appeal was allowed, the order of acquittal was set aside, and the appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC, and also to undergo rigorous imprisonment for a period of one year under Section 203 IPC.
In the appeal to this Court it was contended on behalf of the appellant that the approach of the High Court was totally erroneous and that a well considered and well reasoned judgment of the Trial Court was upset by the High Court by drawing inferences which were not available from the record and by ignoring material discrepancies and infirmities in the prosecution evidence, which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete.
It was further contended that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not exclude the hypothesis, other than that of the guilt of the appellant.
The appeal was contested by the State submitting that some of the circumstances like the pointing out of the appellant by the dogs of the Dog Squad, the disclosure statement and the recovery of ornaments as a consequence thereof.
and the presence of injuries on the person of appellant, were of such a conclusive and clinching nature that they left no doubt that the appellant had committed the crime, and this was fortified when the appellant had made the attempt to mislead the investigating officer by giving a false version with a view to screen himself.
Allowing the appeal, and setting aside the judgment of the High Court convicting the appellant, this Court, HELD : 1.
The High Court did not properly appreciate the prosecu 229 tion evidence while reversing the well considered judgment of the Sessions Judge.
On independent appraisal of the evidence, the prosecution evidence relating to the disclosure statement and the recovery of ornaments is not only discrepent and contradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to rely upon the same.
[244H, 245B] 2.
The Sessions Judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded are sound, cogent and reasonable.
The High Court was not justified to set aside those findings on surmises and conjectures.
The finding of guilt recorded against the appellant by the High Court is not sustainable in law and the prosecution has not established the case against the appellant beyond a reasonable doubt.
[249B] 3(a).
In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case.
The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature.
Moreover, the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence.
[238E F] 4.
No motive has been established by the prosecution for the appellant to commit the murder of his wife and the evidence of Tara Chand father of the deceased as well as the sister of the deceased and the tenants living in the same house disclose that the relations between the husband and wife were cordial.
[238E] 5.
The circumstance (of the disclosure statement and the consequent recovery pursuant thereto of the ornaments belonging to the deceased is of such an incriminating nature that if found established by reliable and trustworthy evidence, it would go a long way to furnish proof of the guilt of the appellant and connect him with the crime and if the evidence in 230 support of that circumstance is found to be not reliable, the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole.
[238G H) 6.
According to the prosecution after the appellant had been taken to the police station by the investigating officer he was interrogated after being placed under arrest.
He voluntarily made a disclosure statement exhibit
The disclosure statement was recorded by the SHO and has been attested by Kuldip Kaul PWI, SI Dalip singh PW6 and Harnaik Singh PW2.
Pursuant to the disclosure statement, the appellant is alleged to have led the police party to the recovery of the ornaments from a drain hole in his bathroom.
The recovery memo EX.PF was prepared at the spot and was attested by PW6.
PWl and PW2 besides the Investigating Officer.
[239A B] 7.
According to the appellant, however, he had made no disclosure statement nor led the police party to the recovery of the ornaments as alleged, and according to the defence version, the missing ornaments had in fact been recovered by the police party around 11 A.M. during search from the service lane, from underneath a slab, near the boundary wall and at that time the appellant and Jagminder Dass Jain were also present.
This defence version is supported by the evidence of DW2, Tara Chand, father of the deceased.
[242D E] 8.
The Sessions Judge carefully considered the evidence led by the prosecution with regard to the disclosure statement and the recovery of ornaments.
It was found that the evidence of Harnaik Singh PW2, who according to DW11 Sunder Lal constable of police station Defence Colony, had been earlier also cited as a witness for the prosecution in a case investigated by Harmit Singh the then Sub Inspector of police and the present Investigation Officer was not reliable and that the Investigating Officer had not told the truth when he had deposed that he did not know Harnaik Singh earlier.
The Sessions Judge also found the evidence of PW1 Kuldip Kaul as not reliable or trustworthy and disbelieved his testimony by giving cogent reasons after properly appreciating the evidence led by the prosecution.
The defence version with regard to the recovery found as more probable and it was opined that the investigating officer had created false cluses and fabricated false evidence.
[243H, 244A B D] 9.
The High Court on the other hand did not deal with the various discrepancies and contradictions appearing in the prosecution evidence 231 relating to the making of the disclosure statement and the recovery of the ornaments, but place reliance on the testimony of Kuldip Kaul PWl and Harnaik Singh PW2 to hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution.
[244G] 10.
There is contradiction between the evidence of Kuldip Kaul PWl and the I.O. as to the place where Kuldip Kaul signed the recovery memo.
According to the I.O. it was signed at the spot while according to Kuldip Kaul PW1, he had returned to the police station and there signed the recovery memo.
After carefully analysing the evidence, it is found that Kuldip Kaul PWl was a convenient witness and his evidence does not appear to be trustworthy.
[245B C] 11.
As regards the recovery of ornaments also, there is a very serious infirmity which emerges from the testimony of Harnaik Singh PW2.
Contrary to what the I.O. and the other witnesses stated, Harnaik Singh PW2 deposed that the ornaments were taken out by the Sardarji I.O. from the drain hole and not by the appellant.
This probabilises the defence version that the ornaments had been recovered during the search and were with the I.O. when the ritual of the recovery under Section 27 of the Evidence Act was performed.
The contradictions in the evidence of the I.O. and S.I. Dalip Singh PW6 as to who had weight the ornaments after their alleged recovery also casts doubt on the correctness of the prosecution story and the bonafides of the investigation.
[245G H] 12.
Having regard to the serious discrepancies, contradictions and the attempt of the Investigating Officer to create false clues and fabricate false evidence, the Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement exhibit PC and the consequent recovery of the ornaments.
[247C] 13.
The prosecution has failed to establish that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution.
This piece of circumstantial evidence, therefore, has not at all been established, much less conclusively.
[247D] 14.
Though with the ruling out of the circumstance relating to the recovery of the ornaments as not having been established conclusively, the chain of the circumstantial evidence snaps badly, there are some other 232 circumstances also in the prosecution case which militate against its correctness.
Admittedly, the nail clippings of the nails of the deceased had been taken by the police.
Were was also recovery of the hair from near the cot where the dead body was lying and the removal of the hair from the scalp of the appellant by the I.O. for the purpose of their comparison.
The report of the chemical examiner has not connected the hair recovered from the cot with those of the appellant.
There is no material on the record either to show that the nail clipping had any blood, which could have tallied with the blood group of the appellant.
Thus, both the nail clippings and the hair have failed to connect the appellant with the crime.
[247F H] 15.
The possibility that the entire case was built up on suspicion after the dogs of the dog squad pointed towards the appellant connot be ruled out.
Since, the appellant had slept in the verandah near the cot where the dead body of his wife was found; had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came, the picking up of the smell by the dogs and pointing towards the accused could not be said to be a circumstance which could exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant.
The pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime.
[248E F] 16.
The explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased, the sister of the deceased, the tenants of the house and other neighbours who had reached the spot, the appellant was wearing only a vest and the pyjama and no shirt and there were no marks of injuries on his body before he was taken to the police station.
The prosecution case regarding the presence of injuries on the person of the deceased also therefore, is quite doubtful.
[248G H]
</s>
|
<s>[INST] Summarize the judgementAppeal No. 2471 of 1972.
Appeal by Special Leave from the Judgment and Order dated the 28th March 1972 of the Delhi High Court in Civil Writ No. 179/72.
M.K. Ramamurthi, K.B. Rohatagi, V.K. Jain and M.M. Kashyap, for the Appellant.
S.N. Andley, B.P. Maheshwari and Suresh Sethi, for the Respondents.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is di rected against the judgment and order dated March 28, 1972 of the High Court of Delhi dismissing in limine the writ petition filed by the appellant herein.
The facts essential for the purpose of this appeal are: The appellant was appointed as an Assistant Teacher on temporary basis in the pay scale of Rs. 68 170, which was subsequently revised to Rs. 118 225, in the Primary School, Northern Railway Colony II run by the Education Department of the Municipal Corporation of Delhi, with effect from October 1, 1958.
He was confirmed on the said post on September 30, 1959.
On August 28, 1964, he was transferred to the Senior Basic Middle School of the Corporation in Panna Mamirpur, Narela 11.
In September, 1967, he was assigned the work of teaching certain subjects to both the sections of Class V. In section A of Class V, there 200 was at that time a student named Surinder Kumar, son of Dhan Raj.
On September 6, 1967, Dhan Raj made a written complaint to the Education Officer of the Corporation, a copy of which he endorsed to the Head Master of the School, alleging therein that the appellant bad sensually misbehaved with his son, Surinder Kumar in the School Premises during the recess time on 2nd and 4th September, 1967.
On October 5, 1967, the Education Officer suspended the appellant.
On April 15, 1968, the Assistant Education Officer, Rural North Zone, was directed by his superior to prepare a charge sheet against the appellant whereupon a charge sheet was drawn up and served on the latter on November '16, 1968.
Therefore, the Director of Inquiries, who was deputed to enquire into the matter proceeded to hold the enquiry and on consideration of the evidence adduced before him, he submitted a report on May 20, 1969, holding that the charge levelled against the appellant had been established.
On receipt of the report and perusal thereof, the Deputy Commissioner, Education of the Corporation passed the following order on May 20, 1969: "I have gone through the report of the Inquiry Officer and agree with his findings.
The Inquiry Officer has held the charge of committing an immoral act with a student of Class V, levelled against Shri Tara Chand Khatri, A/T (Respondent) as proved.
Such an act on the part of a teacher is most unbecoming, serious and reprehensible.
I propose to impose the penalty of 'dismissal ' from service which shall be a disqualification for future employment on the respondent." Consequent upon the passing of this order, a notice was issued to the appellant requiring him to show cause why the penalty of dismissal from service be not imposed on him.
On July 11, 1969, the appellant submitted his representation in reply to the show cause notice.
By order dated July 30, 1968, the Deputy Commissioner, rejected the representation of the appellant and imposed the penalty of dismissal from service upon him.
Aggrieved by this order, the appellant preferred an appeal to the Commissioner of the Corporation on August 29, 1969, under regulation 11 of the Delhi Munici pal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as 'the Regulations ') Which was rejected by the Commissioner on September 13, 1969.
On October 11, 1971, the appellant filed Civil Writ Petition No. 1032 of 1969 in the High Court of Delhi challenging the aforesaid order of his dismissal from service. 'The High Court allowed the petition on the ground that the order of the Appellate Authority was made in violation of the re quirements of regulation 15 of the Regulations and directed the Appellate ' Authority to dispose of the appeal afresh on merits keeping in view all the facts and circumstances of the case as also the requirements of Regulation 15 of ' the Regulation.
While disposing of the writ petition, the learned Judge added that if the appellant still felt ag grieved by the decision of the Appellate Authority he would be at liberty in appropriate proceedings not only to chal lenge the order of the Appellate Authority but the order of the disciplinary authority as well.
On remand, the Commis sioner of the Corporation who happened to be an officer different from the.
one who rejected the appellant 's appeal on the former occasion heard the appe 201 llant at considerable length but rejected the appeal by an elaborate order dated January 5, 1972.
The appellant thereupon filed writ petition No. 179 of 1972 in the High Court of Delhi challenging the order dated July 30, 1969 of the Deputy Commissioner, Education, as well as the order of the Appellate Authority dated January 5, 1972.
This petition was, as already stated, summarily dismissed without the issue of a notice to the respondents.
The appellant then made an application to the High Court for leave to appeal to this Court but the same was also rejected.
Appearing in support of the appeal, Mr. Ramamurthi has vehemently contended that the appointing authority of the appellant being the Commissioner under section 92 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act '), his dismissal from service by the Deputy Commissioner (Education) an authority subordinate to the Commissioner is illegal.
The counsel has next urged that regulation 7 of the Regulations and the Schedule referred to therein conferring power on the Deputy Commissioner to dismiss a municipal officer or other employee drawing a monthly salary of less than Rs. 350/ being inconsistent with section 95 of the Act is void and consequently the impugned order of the appellant 's dismissal from service passed in exercise of that power is also illegal and invalid.
The counsel has further contended that the impugned order of the appellant 's dismissal from service being a quasi judicial order is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order.
The counsel has lastly urged that the High Court ought not.
to have dismissed the petition in limine without calling upon the respondents to file the return as it raised not only arguable points of law but also contained allegations of male fides against the respondents.
We shall deal with these points seriatim.
But before embarking on that task, we consider it apposite to, refer to a few provisions of the Act and regulations which have an important bearing on the case.
Under section 92(1)(b) of the Act, as in force at the relevant time the power of appointing municipal officers and other municipal employees whether temporary or permanent, to posts carrying a minimum monthly salary (exclusive of allow ances) of less than three hundred and fifty rupees was vested in the Commissioner.
Subsection (1)of section 95 of the Act provided that every municipal officer or other municipal employee shall be liable . . to be cen sured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be.
pre scribed by regulations.
The first proviso.
to this sub section, however, contained the following rider: "Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed.
" 202 Section 491 of the Act which is in the nature of an enabling provision provided as under: "The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any officer or other municipal employee specified in the order.
" It is admitted by the appellant that in: exercise of the power conferred on him under section 491 of the Act, the Commissioner had vide his order No. (1)58 Law Corp 1 dated April 7, 1958, directed that all the powers conferred on him under the various provisions of.
the Act would be exercised also by the Deputy Commissioner subject to his supervision, control and revision.
Regulation 7 of the Regulations and the Schedule referred to therein read as under: "Regulation 7: The authority specified in column 1 of the Schedule may impose on any of the municipal officers.
or other municipal employees specified there against in column 2 thereof any of the penalties specified there against in column 3 thereof.
Any such officer or employee may appeal against the order imposing upon him any of those penalties to the authority specified in column 4 of the said Schedule." SCHEDULE Description of posts Authority Penalties Appellate competent Authority to impose penalties Posts whose minimum Deputy All Commissioner monthly salary (exclu Commissioner sive of allowances) is less than three hund red and fifty rupees.
Any municipal officer (i) & (ii) Deputy Co or employee mmissioner to whom po wers to im pose penal ties is de legated under section 491.
It would also be advantageous to refer to regulation 8 of the Regulations in so far as it is relevant for the purpose of this appeal.
"Regulation 8: . . . 203 (9) The Disciplinary Authority, shall, if it is not the Inquiring Authority, consider the record ' of inquiry and record its findings on each charge.
(10) If the Disciplinary Authority, having regard to its findings on the charges, is.
of the opinion that any of the penalties specified in regulation 6 should be imposed, it shall : (a) furnish to the municipal officer or other municipal employee a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and, (b) give him a notice stating the action proposed to.
be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action.
(11) The Disciplinary Authority shall consider the representation, if any, made by the municipal officer or other municipal employee in response to the notice under subregulation (10) and determine what penalty, if any, should be imposed on the municipal officer or other municipal employee and pass appropriate orders on the case.
(12) Orders passed by the Disciplinary Authority shall be communicated to the municipal officer or other municipal employee who shall also be supplied with a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him.
" Having noticed the relevant provisions, we now pass on to.
consider the contentions raised on behalf of the appel lant.
Adverting to the first two contentions raised before us on behalf of the appellant, it may be stated that neither of them appear from the record to have been raised before the High Court.
It was not the case of the appellant in the petition filed, by him under Article 226 of the Consti tution that since his appointment as an Assistant Teacher was actually made by the Commissioner, the Deputy Commis sioner was.
not competent to dismiss him from service.
What was asserted by him at that stage is contained in ground No. VI of the petition and ' may be reproduced below for facility of reference: "Because in any.
case, respondent No. 3 has no jurisdiction to hear the appeal.
Under section 92 of the Delhi Municipal Corporation Act, 1957, the petitioner could be 204 appointed only by the Commissioner and under section 95 of the said Act, he should be the dismissing authority.
In the present case, however, the Commissioner had by notification under section 491 of the said Act, delegated his power to the Deputy Commissioner under Circular NO.
4(1)/8 Law Corp. 1 dated 7.4.1958.
The dismissing order was made by the Deputy Commissioner as delegatee i.e. as exercising the powers of the Commissioner.
The Commissioner, therefore, could not sit in appeal on such an order.
Only the Standing Committee of the Corporation could have heard the appeal.
" The omission to make the aforesaid averments in the writ petition regarding the incompetence of the Deputy Commis sioner to pass the impugned order of dismissal from service and invalidity.
of regulation 7 of the Regulations appears to be due to the.
fact that the appellant fully realised that none of these pleas could be tenable in view of the aforesaid order No. (1) 58 Law Corp. 1 dated April 7, 1958 made by the Commissioner delegating all his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regulation 7 of the Regulations which far from being repugnant to section,, 95 of the Act is perfectly consistent with it as sub section (1 ) of that section itself makes a municipal employee liable to be compulsorily retired, removed or dismissed etc.
by such authority as may be prescribed by the Regulation.
The prohibition contained in the first proviso to this Sub section is confined in its operation only to a case where an officer or employee of the Corporation is retired, re moved or dismissed by an authority subordinate to that by which he was appointed.
In the instant case, 'the appel lant 's appointment having been made by the Deputy Commis sioner, who possessed plenary powers in., that behalf by virtue of the aforesaid delegation order, there was; neither any legal bar to the appellant 's dismissal from service by that very authority nor a breach of the first proviso to sub section (1 ) of section 95 of the Act.
The decision of this Court in The Management of D.T.U.v.
Shri B.B.L. Halelay & Anr.(1) sought to be relied upon by Mr. Ramamurthi related to an appointment which rested on a deeming provision and is not at all helpful to the appel lant.
Rospondent No. 2 in that case was Originally employed as a driver in the Delhi Road Transport Authority which had been constituted under the Delhi Road Transport Authority Act, 1950.
By section 516(1)(a) of the Delhi Municipal Corporation Act,1957 which came into force in January, 1958, the Delhi Road Transport Authority Act, 1950, was repealed and the functions of the Delhi Road Transport Authority were taken over by the Corporation by virtue of several other provisions of the Act.
Under section 511 of that Act i.e. the Delhi Municipal Corporation Act, 1957, every officer and employee of the Transport Authority including respondent No,. 2 stood transferred and become an officer and employee of the Corporation and under section 92(1) (b) read with section 516(2) (a) of the Act, the said respondent was (1) ; 205 to be deemed to have been appointed by the General Manager (Transport).
The respondent in that case thus being re quired by fiction of law to b,e taken to have been appointed by the General Manager, he could not have been removed from service in May, 1963 by the Assistant General Manager an authority subordinate to the General Manager in view of the first.proviso to sub section (1) of section 95 of the Act despite the fact that the functions of the General Manager had been delegated to the Assistant General Manager in May, 1961.
In that case, it was made clear by this Court that the only consequence of the delegation order was that if after 1961, the Assistant General Manager had made the appointment of respondent No. 2, he would have no doubt been entitled to remove him from service but the position had to be deter mined with reference to the time, when he was absorbed in the Corporation which was in January, 1958.
The judgment of this Court in.
Municipal Corporation of Delhi vs Ram Pratap Singh(1) is also not helpful to the appellant as in that case, the appointment was in fact made by the Commissioner white the dismissal was by the Deputy Commissioner.
In view of the foregoing discussion, the first two contentions raised on behalf of the appellant which are totally misconceived are repelled.
The third contention advanced by Mr. Ramamurthi that the impugned order of the appellant 's dismissal from service is vitiated 'as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order cannot also, be countenanced as.
it overlooks the decisions of this Court, which fully cover the case.
Regarding the first limb of the contention, it may be stated that although it may be necessary for the discipli nary authority to record.
its provisional conclusions in the notice calling upto the delinquent officer to, show cause why the.
proposed punishment be not imposed upon him if it differs from the findings arrived at b,y the enquiring officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer.
We are supported in this view by two decisions of this Court in State of Orissa vs Govinddas Panda(2) and State of Assam & Anr.
vs Bimal Kumar Pandit(3).
In Govinddas Panda 's case (supra) where the notice issued under ' Article 311(2) did not expressly state.
that the State Government had accepted the findings record ed by the enquiring officer against the Government servant in question and where even the nature of the punishment which was proposed to be inflicted on.
him was not specifi cally and clearly indicated, this Court while reversing the conclusions of the Orissa, High Court that the notice was defective and so that provisions of Article 311(2) had been contravened observed: (1) C.A. No. 2249 (N.) of 1969 decided on 8 1 1976.
(2) C.A. No. 412 of 1958 decided on 10 12 1962.
(3) ; 206 "In the context, it must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment.
On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service." In Bimal Kumar Pandit 's case (supra) while, reversing the judgment and order of the High Court allowing the writ petition filed by the respondent against his reduction in rank on the ground that the notice served upon him under Article 311 (2) of the Constitution was void as it did not expressly and specifically indicate either the conclusions of the dismissing authority or the findings recorded by the enquiring officer or that the dismissing authority accepted the findings of the enquiring officer and unless that course was adopted, it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusion both in regard to the guilt of the public officer and the punishment which his misconduct deserved the Constitution Bench of this Court observed: "It may be conceded that it is desirable that the dismissing authority should indicate in the second notice its concurrence with the conclusions of the enquiring officer before it issues the said notice under Article 311(2).
But the question which calls for our decision is it the dismissing authority does not expressly say that it has accepted the findings of the enquiring officer against the delinquent officer, does that introduce such an infirmity in the proceedings as to make the final order invalid ? We are not prepared to answer this question in the affirmative.
It seems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authority as to the punishment that should be imposed on him obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority; otherwise there would be no sense or purpose in issuing the notice under Article 311(2).
" At another place, the Court observed: "We ought, however, to all that if, the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice.
It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311 (2).
In 207 such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer.
Without such an express statement in the notice, it would be impossible to issue the notice at all.
There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on other issues.
That is precisely what has happened in the present case.
If the dismissing authority accepts all the said findings in their entirety, it is another matter; but if the dismissing au thority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice.
In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are according to the dismissing authority, proved.
In order to give the delinquent officer a reasonable opportunity to show cause under article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the. notice.
But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that the dismissing authority must say that it has so accepted the report.
As we have already indicated, it is desirable that even in such.
cases a statement to that effect should be made.
But we do not think that the words in article 311 (2) justify the view that the failure to make such a statement amounts to.
contravention of article 311(2) . .
There is no doubt that after the report is received, appropriate authority must apply its mind to the report and must provisionally decide whether the findings recorded in the report should be accepted or not.
It is only if the findings recorded in the report against the Government servant are accepted by the appropriate authority that it has to provisionally decide what action should be taken against him.
But this does not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer.
" In the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the aforesaid order passed 208 by the Deputy Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer.
Reading the order as a whole, it becomes crystal clear that the disciplinary authority held the charge drawn up against the appellant as proved.
The second limb of the third contention raised on behalf of the appellant which also overlooks the decisions of the Constitution Bench this Court does not commend itself to us.
In this connection, we would like to make it clear that while it may be necessary for a disciplinary or admin istrative authority exercising quasi judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons.
It cannot also, in our opinion, be laid down as a general rule that an order is a non speaking order simply because it is brief and not daborate.
Every case, we think, has to be judged in the light of its own facts and circumstances.
Reference in this connection may be made with advantage to a catena of decisions.
In Bimal Kurnar Pandit 's case (supra) it was categorically laid down by the Constitution Bench of this Court that it was not a requirement of Article 311(2) that in every case, the punishing authority should in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted on him but also the reasons for coming to that conclusion.
In that case, it was clarified that the view is not justified that the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delin quent Government servant.
In State of Madras vs A.R. Srinivasan(1) the Constitution Bench this Court while repelling the contention advanced on behalf of the respondent that the State Government 's order compulsorily retiring him from service was bad as it did not give reasons for accepting the findings.
of the enquiring tribunal and imposing the penalty of compulsory retirement observed as follows: "Mr. Setalvad for the respondent attempted to argue that the impugned order gives no reasons why the appellant accepted the findings of the Tribunal.
Disciplinary proceedings taken against the respondent, says Mr. Setalvad, are in the nature of quasi judicial proceedings and when the appellant passed the impugned order against the respondent, it was acting in a quasi judicial character.
That being so, the appellant should have indicated some reasons as to why it accepted the findings of the Tribunal, and since no reasons are given, the order should be struck down on that ground alone.
We are not prepared to accept the argument.
In dealing with the question as to whether it is obligatory on the (1) A.I.R. 1966 S.C. 1827=(1966) 2 S.C.W.R. 524.
209 State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf.
That enquiry is followed by a report and the Public Service Commission is consulted where necessary.
Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal.
It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate.
But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it.
The proceedings are, no doubt, quasi judicial, but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on ' the State Government to record reasons in every case." In Som Datt Datta vs Union of India & Ors.
(1) while approv ing the English law and practice and overruling 1he conten tion advanced on behalf of the petitioner that the orders of the Chief of the Army Staff confirming the proceedings of the Court Martial under section 164 of the Army Act and the order of the Central Government dismissing the appeal of the petitioner under section 165 of the Army Act were illegal and ultra vires as they did not give reasons in support Of the orders, the Constitution Bench of this Court summed up the legal position as follows : Apart from any requirement imposed by the statute or statutory rule either expressly or 'by necessary implication, there is no legal obligation that the statutory tribunal should give reasons for its decision.
There is also no general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision.
In Madhya Pradesh Industries Ltd. vs Union of India & Ors.(2) this Court repelled the contention of counsel for the appellant that every order appealable under Article 1,36 of the Constitution must be a speak (1) [1969] S.C.R. 176.
S.C.R. 466 A.I.R. 1458SCI/76 210 ing order and the omission to give reasons for the decision is of itself a sufficient ground for quashing it and held that an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for rejection.
While distinguishing the case of Harinagar Sugar Mills Ltd. vs Shyam Sunder Jhunjhunwala(1) where the Central Government reversed the decision of the State Government without giving reasons for reversal, this Court pointed out that there was a vital difference between the order of reversal by the appellate authority and the order of affirmance by the revising authority and that if the revising authority re jects a revision application stating that there was no valid ground for interference with the order of the subordinate authority in such a case, it could not be held that the order was arbitrary or that there was no trial of the revi sion application.
Subba Rao, J. (as he then was) speaking for himself in that case observed : "Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons." In Judicial Review of Administrative Action (Second Edition), Prof. S.A. de Smith has observed at page 418 as follows : "If the record is incomplete (e.g. because reasons or findings of material fact are omitted), has the court power to order the tribunal to complete its record? It is common ground that the court has no inherent power to compel a tribunal to give reasons for its decisions . .
If, of course, a tribunal is required by statute to declare its reasons or its findings on the material facts, an order of mandamus may be obtained to compel the tribunal to perform its legal duty .
Where a tribunal that is not expressly obliged to give reasons for its decisions chooses not to give any reasons for a particular decision, it is not permissible to infer on that ground alone that its reasons for that decision were bad in law.
Even if it gives reasons, which are ex facie insufficient in law to support its decision, the court will not necessarily assume that these are the sole reasons on which the tribunal has based its decision.
(See Cf.
Davies vs Price at 440 and R.v.
Minister of Housing and Local Government, ex.
P. Chichester R.D.C.
Before concluding the discussion in regard to the third contention, we may point out that none of the decisions viz. Sardar Govindrao & Ors.
vs State of Madhya Pradesh(2) Bhagat Raja vs The Union of India & Ors.
(3) Travancore Rayon Ltd. vs Union of India(4) Mahabir Prasad Santosh Kumar vs State of U.P. & Ors.(5)Rangnath vs Daulat Rao & Ors.
(6) and Siemens Engineering & Manufacturing Company of India Ltd. vs The Union of India(7) on which Mr. Ramamurthi has (1) ; (2) [1965] 1 S.C.R.678.
(3) ; (4) ; (5) ; (6) ; (7) ; 211 heavily leaned has anything to do with disciplinary proceed ings.
At such, they have little bearing on the point with which we are at present concerned.
We would also like to point out that the observations in Travancore Rayon Ltd. vs Union of India (supra) that in Bhagat Raja vs The Union of India & Ors.
(supra).
, this Court in effect overruled the judgment of the majority in Madhya Pradesh Industries Ltd. vs Union of India & Ors.
(supra) seem to have crept therein through some oversight.
A careful perusal of the decision in Bhagat Raja vs The Union of India & Ors.
(supra) would show that this Court did not make any observations therein which can be interpreted as overruling the. majority judgment in Madhya Pradesh Industries Ltd. vs Union of1 India & Ors.
(supra).
It is also worthy of note that in Bhagat Raja 's case (Supra), the amendment of rule 55 of the Mineral Concession Rules,1960 introduced in July, 1965 laid down a special procedure in regard to revisions.
It required the Central Government to send copies of the application for revision to all the impleaded parties including the person to whom a lease had been granted calling upon them to make such comments as they might like to make within three months from the date of the issue of the communication and on receipt of the comments from any party to send copies thereof to the other parties calling upon them to make further comments as they might like to make within one month from the date of the issue of the communication.
It also provided that the revision appli cation, the communications containing comments and counter comments referred to above would constitute the record of the case.
Thus under the amended rule, the party whose application was rejected got an ample opportunity of showing to the Central Government by reference not only to the record which was before the State Government but by refer ence to the fresh material as well that the State Government was misled in its consideration of the matter or that its decision was based on irrelevant considerations.
This is evident from the following observations made in Bhagat Raja vs The Union of India & Ors.
(supra): "The old rule 55 was replaced by a new rule which came into force on 19th July, 1965.
Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only, the new rule is aimed at calling upon all the parties including the State Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others.
In effect, the parties are given a right to bring forth material which was not before the State Government.
It is easy to see that an unsuccessful party may challenge the gram of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government.
The order in this case does not even purport to ' show that the comments and counter comments which were before the Central Government in this case, had been considered.
" The above observations leave no manner of doubt that it was in view of the amendment in rule 55 of the Mineral Concession Rules, 212 1960 that the decision in Bhagat Raja vs The Union of India & Ors.
(supra) was different from Madhya Pradesh Industries Ltd. vs Union of India & Ors.
(supra) which had been ren dered on the unamended rule 55 of the said Rules.
In our opinion, therefore, the observations made in Madhya Pradesh Industries Ltd. vs Union of India & Ors.
(supra) contain a correct statement of law.
In view of the foregoing, we do not find any merit in the third contention raised on behalf of the appellant.
This brings us to the last contention raised by Mr. Ramamurthi that the writ petition should not have been dismissed by the High Court in limine in view of the fact that it contained allegations of mala fides against the respondents.
We are unable to accept this contention.
It has been held time and again by this Court that the High Court would be justified in refusing to carry on investiga tion into the allegations of mala fides if necessary partic ulars of the charge making out a prima facie case are not given in the writ petition.
Keeping in view the well estab lished rule that the burden of establishing mala fides lies very heavily on the person who alleges it and considering all the allegations made by the appellant in regard thereto, we do not think that they could be considered as sufficient to establish malus animus.
The High Court was, therefore, not wrong in dismissing the petition in limine on seeing that a prima facie case requiring investigation had not been made out.
In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.
P.B.R. Appeal dismissed.
[/INST]The appellant, a school teacher under the Delhi Munici pal Corporation.
was dismissed from service by the Deputy Commissioner (Education) after following the procedure prescribed under the Regulations.
His appeal to the Commis sioner of the Corporation was dismissed and his writ peti tion was dismissed in limine by the High Court.
On further appeal to this Court it was contended that (I ) the order of dismissal was invalid for the reason that the Commissioner being the appointing authority, the Deputy Commissioner was incompetent to dismiss him and the regulation conferring power on the Deputy Commissioner to dismiss a municipal employee drawing less than Rs. 350 being inconsistent with section 95 of the Delhi Municipal Corporation Act 1957 is void; (2) since the disciplinary authority had neither recorded its findings nor given its reasons in the order of dismissal it is vitiated and (3) the petition should not have been dismissed in limine by the High Court.
Dismissing the appeal, HELD: (1 ) The appellant 's appointment having been made by the Deputy Commissioner, who possessed plenary powers in that behalf by virtue of the delegation of power to him, there was neither any legal bar to 'his dismissal by that authority nor a breach of the first proviso to section 95(1).
In his writ petition before the High Court the appellant failed to make any averment regarding the incompetence of the Deputy Commissioner to pass the impugned order and the invalidity of the regulation.
None of his pleas was tenable in view of the order of the Commissioner delegating his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regula tion 7 being consistent with section 95(1) of the Act.
[204 E&C] The Managment of D.T.U. vs Shri B.B.L. Hajeley & Ant. ; and Municipal Corporation of Delhi vs Ram Partap Singh (Civil Appeal No. 2449(N) of 1969 delivered on January 8, 1976), held inapplicable.
(2)(a) Although it may be necessary for the disciplinary authority to record its provisional conclusions in the notice calling upon the delinquent officer to show cause why the proposed punishment be not imposed upon him if it dif fers from the findings arrived at by the enquiry officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer.
[205 F] In the instant case it is apparent from the order of the Deputy Commissioner that he agreed with the findings of the Enquiring Officer.
[208 A] State of Orissa vs Govinddas Pande (Civil Appeal No. 412 of 1958 decided on December 10, 1962) and State of Assam & Anr.
vs Vimal Kumar Pandit A.I.R followed.
(b) While it may be necessary for a disciplinary or administrative authority exercising quasi judicial functions to state the reasons, in support of its order if it differs from the conclusions arrived at and the recommendations made by 199 the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons.
it cannot be laid down as a general rule that an order is a non speaking order simply because it is brief and not elabo rate.
Every case has to be judged in the light of its own facts.
[208 B] Sardar Govindrao & Ors.
vs State of Madhya Pradesh ; , Bhagat Raja vs The Union of India & Ors. ; , Travancore Rayon Ltd. vs Union of India ; ; Mahabir Prasad Santosh Kumar vs State of U.P. & Ors.
; , Rangnath vs Daula trao & Ors. ; and The Siemens Engineering & Manufacturing Co. of India Ltd. vs TIre Union of India & Anr. ; , inapplicable.
(c) M.P. Industries Ltd. vs Union of India ; contains a correct statement of law.
In Bhagat Raja vs The Union of India, ; this Court did not make any observations which can be interpreted as overruling the majority judgment in the former case.
In view of the amendment of r. 55 of the ' Mineral Concession Rules, 1960 the decision in Bhagat Raja 's case was differ ent from M.P. Industries case which had been rendered on the unamended r. 55 of the Rules.
[212 A; 211 B] (3) The High Court was not wrong in dismissing the writ petition.
in limine because a prima jacie case requiring investigation had not been made out by the appellant.
The High Court would be justified in refusing to carry on inves tigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the petition.
Since the burden of establishing mala fides lies very heavily on the person who alleges them and the allegations made.
in regard thereto, in the writ petition were not sufficient to establish malus animus.
The High Court was justified in dismissing the petition without issuing notice to the other side.
[212 C D]
</s>
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<s>[INST] Summarize the judgementivil Appeal No. 1027 of 1990.
From the Judgment and Order dated 27.10.1989 of the Karnataka High Court in Writ Appeal No. 2017 of 1989.
K. Parasaran, C.S. Vaidyanatha, S.R. Bhat, S.R. Setia, K.V. Mohan and Mrs. Sunitha B. Singh for the Petitioner.
K.N. Bhatt, Rajinder Sachhar, Vineet Kumar, B. Mohan and K.G. Raghvan for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The petitioner is aggrieved by the award of a contract by the Karnataka Power Corporation Ltd. (K.P.C.), an instrumentality of the State of Karnataka, in favour of the Mysore Construction Co. (M.C.C.).
His writ petition and a further writ appeal in the Karnataka High Court having been unsuccessful, he has preferred this Spe cial Leave Petition from the judgment of the High Court in the writ appeal.
We have heard counsel for both sides at length.
We 231 grant Special leave and proceed to dispose of the appeal.
Though, at an earlier stage of the proceedings there were some allegations of favoritism, the plea of the peti tioner, as urged before us, is that the K.P.C. should not at all have entertained the tender of M.C.C. as the M.C.C. did not fulfill certain preliminary requirements which, under the Notification Inviting Tenders (N.I.T.), had to be ful filled even before the forms of tender could be supplied to any intending contractor.
The contract pertained to the construction of a Main Station Building of a Power House at the Raichur Thermal Power Plant at an estimated cost of about Rs. 1.8 crores.
The N.I.T. dated 27.12.1988 invited tenders from registered contractors of appropriate class.
Paragraph I of the notifi cation listed three "Minimum qualifying requirements" viz., that the intending tenderer: (1) should have executed civil and architectural works including insulation in a power plant/industrial complex, preferably in power plant; (2) should have executed atleast 1000 cubic metres per month of concrete pouring and atleast 300 cubic metres per month of brick work at one site; and (3) should have had an annual turnover of atleast 1 crore for each of the preceding three years.
Para V required the intending tenderers to furnish the following information "along with the application for issue of blank tender books", namely: (a) Audited Balance Sheet/Certificate from Chartered Ac countant for preceding three years; (b) Latest income tax clearance Certificate; (c) Copy of the Registration Certificate (d) Annual output of the works of all the above nature at any site accompanied by a certificate from the organisation for whom the tenderer had carried out the works furnishing details such as rate of pouring of concrete.
manufacturing of hollow concrete 232 block, precast concrete block, . . etc., and period of completion scheduled/envisaged, equipments and their deploy ment i.e., man months etc.
The N.I.T. specified January 17, 1989, as the last date for receipt application forms for issue of blank tender books.
The issue of blank tender books was to be between 23rd January to 27th January, 1989 and the completed tender books had to be submitted by 3.00 p.m. on 6.2.89.
It is common ground, however, that subsequently this time frame was altered.
The last date for receipt of application form for issue of blank tender books remained as 17th January, 1989 but the other items were altered to read as follows: "1.
Last date for receipt of 10.2.89 clarification: 2.
Period to issue blank tender 10.2.89 to books 16.2.89 3.
Last date and time for receipt 27.2.89 completed tender books: upto 3.00 P.M.
It appears that six parties applied for tender books.
These were scrutinized with reference to the pre qualifying requirements and data on experience, work done etc.
as furnished by each of the applicants.
Four of the firms were found to be pre qualified by the Chief Engineer and tender books were issued to them.
Only three of them, however, submitted completed tender books by February 27, 1989.
These tenders were examined by the Chief Engineer as well as an independent firm of Engineering Consultants, namely, Tata Consulting Engineers (T.C.E.).
Both the Chief Engineer as well as T.C.E. recommended acceptance of the tender of M.C.C. (which was the lowest tender) in view of the fact that M.C.C. had adequate experience in the construction of R.C.C. works and they were capable of mobilising the work force required for the work.
It may be mentioned that after making necessary adjustments it was found that the tender of M.C.C. was Rs. 15 lakhs less than the tender of the peti tioner.
The principal argument advanced on behalf of the peti tioner is that paragraphs I and V of the N.I.T. specified certain pre qualifying requirements.
Unless these require ments were fulfilled, the contractor was not even entitled to be supplied with a set of tender documents.
It is submit ted that M.C.C. did not comply with these requirements and 233 hence its application for tender forms should have been rejected at the outset.
The learned single Judge in the High Court went into the matter in great detail and came to the conclusion that the petitioner 's contentions were not well founded.
He took the view that the pre requisites for supply of tender forms were only the three conditions set out in para I of the N.I.T. and that the details called for in para V could be supplied at any time.
He, therefore, rejected the petitioner 's con tention that the extensions of time given to M.C.C. to submit the tender with requisite clarifications were not warranted.
The Division Bench, on appeal, did not express any clear opinion as to the nature of the requirements set out in Para V but was satisfied, on an overall view, that there was nothing unfair or arbitrary about the award of the contract tO the M.C.C. It observed: "We have carefully considered these contentions.
We are of the view that while exercising jurisdiction under Article 226 of the Constitution, it is not for us to reap praise the facts on merits and come to one conclusion or other with regard to these aspects of the matter.
Why we are obliged to say this is if the Court is satisfied there is nothing arbitrary or unfair in the award of the contract, it cannot convert itself into a super technical Committee and find out whether the requirements have been fulfilled or not.
While saying so, we are conscious of the fact that what is argued before the learned single Judge is with reference to prequalifications or in other words the eligibility.
Nevertheless where the person who is incharge of award of contract was satisfied about the eligibility and that too after consultancy through an independent agency like Tata 's, we cannot come to a contrary conclusion and then say a particular certificate does not in terms meet the require ment laid down under clause V(d).
That we consider is no function of the Court.
After all the object of tender in most matters like this is to satisfy the authority that the person who undertakes to execute the work or the person who offers the tender would be really worth and then he would perform to the best of his ability and to the requirement of the person who wants to have the contract.
If these basic principles are kept in mind, we do not think we can intro duce nuances of law to enter into the realm of contract which we consider should be kept out of the purview of writ 234 jurisdiction.
From this point of view, we are unable to find out any justification to interfere with the order of the learned single Judge.
" The first question that falls to be considered is as to whether there is any difference between the requirements in paras I and V and whether only para I and not para V sets out the pre conditions of eligibility to submit a tender for the contract.
In our opinion, it is difficult to accept the view of the learned single Judge of the High Court that it is only para I that stipulates the pre conditions and that all the documents referred to in the other paras can be supplied at any time before the final award of the contract.
It is seen that paras I to XIII set out various terms and conditions some of which relate to the pre tender stage and some to later stage.
For instance, paras X and XI come into operation only after the tenders are received and para XII makes it clear that the K.P.C. 's decision regarding the fulfilment of para IV may remain open right till the actual award of the contract.
However, on the contrary, the condi tion set out in para VI has clearly to be fulfilled even before asking for tender forms.
Para V seems to stand some where in between.
If one reads paras I and V together, it will be seen that a common thread runs through them and that they are really meant to supplement each other.
It is in order to satisfy itself that the requirements of para I(1) and (2) are fulfilled that the K.P.C. calls for the certifi cates mentioned in para V and the fulfilment of the require ment in para I(3) has obviously to be verified by reference to the audited balance sheets called for under clause (a) of para V.
The reference in clause (d) of para V to the "annual output of the works of the above nature" is also obviously a reference to the works of the nature described in para I.
It is clear that at least some, if not all, of the documents referred to in para V, are intended to verify the fulfilment of the three prequalifying requirements of para I. The stipulation of the time element within which the information asked for in para V should be supplied is also of some significance; it specifically requires the information to be supplied along with the application for tender forms.
As pointed out by this Court in its judgment dated 3.3.1989 in Ram Gajadher Nishad vs State of U.P., C.A. 1819/89, an intending tenderer can be perhaps letigimately excluded from consideration for a contract, if the certificates such as the ones under clauses (b) and (c) of para V are not fur nished.
It may not, therefore, be correct to read para I in isolation and treat it as the only condition precedent for the supply of forms of tender.
The more harmonious and practical way of construing the N.I.T. is by saying that, before the tender books can be supplied, an intending ten derer should satisfy the K.P.C, by supplying such of the documents called for in para V as are material in assessing the fulfilment of the condition in para I, that he fulfills the three 235 conditions set out in para I.
It seems clear to us that, apart from para I, there are some other requirements in the N.I.T. which have to be complied with before the applicant can be eligible for supply of tender forms.
These include, if not all, at least such of those documents referred to in para V(d) as have a direct bearing on the three conditions outlined in para I. Bearing this approach in mind, let us examine to what extent, according to the appellants, the M.C.C. failed to fulfil the N.I.T. requirements: So far as para I is concerned, two defects were pointed out.
The first was that, as against the requirement that the applicant "should have executed . . works including insulation", the certificate of 25.1.1989 produced by the M.C.C. was only to the effect that it "is constructing" a building in Hyderabad for the National Geophysical Research Institute "in which they have done wall insulation and roof insulation for airconditioning work".
The second was that, as against the second requirement of para I that the appli cant should have executed "at least 300 cubic metres per month of brick work at one site, the certificate from Vasa vadatta Cements produced by the M.C.C. on 1.2.89 only stated that it had "constructed over 300 cubic meter of brick masonry for the packing plant and D.G. building totaling to 327.29 cubic metre during the month of June 1985".
These certificates, it is submitted, do not come up to the re quirements of Para I.
We think that this criticism, based on the differences in wording as between the language of para I and the certificates produced by the M.C.C., is too weak to be accepted.
It was for the K.P.C. to consider the suffi ciency of these certificates.
The conditions only required that the applicant should supply information to show that he had experienced in insulation work and that he could carry out brick work in a month to the extent indicated.
It was for the K.P.C. to assess the value of the certificates furnished in this regard and if the K.P.C. considered them sufficient to warrant the issue of a tender form to the applicant, we do not think we should interfere with their decision.
So far as para V is concerned, the criticism is that two items of information concerning the requirements of clause (d) of Para V were not supplied along with the request for application of tender forms.but were supplied much later.
It was only on 21.6.89 that M.C.C. furnished a certificate that they had executed "hollow cement blocks work" for the Indian Telephone Industries Ltd. but even that certificate gave no details.
It vaguely stated that "the item had been executed as per our bill of quantities".
Again, it was only on 18.8.89 that M.C.C. produced a certificate from Vasvadatta Cements regarding the work of concreting done by it.
It is pointed out incidentally that 236 this is also a part of the specific requirements in para I and, as such, the VI.C.C. cannot be said to have satisfied the preliminary conditions Tendering it eligible to tender for the contract.
The second of these does not really cause much difficulty.
For, even as early as 11.1.89 along with its application for tender dated 3.1.89 M.C.C. had produced a certificate from the K.P.C. itself that it had done 35,000 cubic metres of concreting during 7 months and this was apparently considered sufficient for the K.P.C. subsequently called for a certificate only regarding brick work.
This leaves only the first of the criticisms that the details regarding hollow cement block works done by the M.C.C. was furnished only on 21.5.89.
Should the M.C.C. have been denied altogether the right to Tender for the contract consequent on the delay in sub mitting this document is the second question that arises for consideration.
Sri Parasaran, for the appellant would have us answer this question in the affirmative on the principle enunciated by Frankfurter, J. and approved by this Court in Raman Daygram Sherry vs The International Airport Authority of India & Ors., ; Bhagwati, J. (as his Lordship then was) formulated in the following words a principle which has since been applied by this Court in a number of cases: "It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.
This rule was enunciated by Mr. Justice Frankfurter in Viteralli vs Seton, 359 U.S. 535:3 Law.
(Second series) 1012, where the learned Judge said: An executive agency must be rigorously held to the standards by which it professes its action to be judged.
Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the require ments that bind such agency, that procedure must be scrupu lously observed.
This judicially evolved rule of administra tive law is now add, rightly so.
He that takes the procedur al sword shall perish with the sword." "This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia vs Punjab, ; and in subsequent decision given in Sukhdev vs Bhagatram, ; Mathew, J., quoted the above referred observations of Mr. Justice Frankfurter with approval.
It may be noted that this rule, though supportable also as emanation 237 from Article 14, does not rest merely on mat article.
It has an independent existence apart from Article 14.
It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority.
If we turn to the judgment of Mr. Justice Frank furter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law.
Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pages 540 41 in Prof. Wade 's Administra tive Law 4th edition.
There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law.
XXX XXX XXX It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, the 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound to conform to the stand ard or norm laid down in paragraph I of the notice inviting tenders which required that only a person running a regis tered.
Find II Class hotel or restaurant and having at least 5 years ' experience as such should be eligible to tender.
It was not the contention of the appellant that this standard or norm prescribed by the 1st respondent was dis criminatory having no just or reasonable relation to the object of inviting tenders namely, to award the contract to a sufficiently experienced person who would be able to run efficiently a find class restaurant at the airport.
Admit tedly the standard or norm was reasonable and non discrimi natory and once such a standard or norm for running a Find Class restaurant should be awarded was laid down, the 1st respondent was not entitled to depart from it and to award the contract to the 4th respondents who did not satisfy the condition of eligibility prescribed by the standard or norm.
If there was no acceptable tender from a person who satis fied the condition of eligibility, the 1st respondent could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbi trarily accept the tender of the 4th respondents.
When the 1st respondent entertained the tender of the 4th respondents even though they did not have 5 years ' expe 238 rience of running a II Class restaurant or hotel, denied equality of opportunity to others similarly situate in the matter of tendering for the contract.
There might have been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years ' experience of running a II Class restaurant, but who were otherwise compe tent to run such a restaurant and they might also have competed with the 4th respondents for obtaining the con tract, but they were precluded from doing so by the condi tion of eligibility requiring five years ' experience.
The action of the 1st respondent in accepting the tender of the 4th respondents, even though they did not satisfy the pre scribed condition of eligibility, was clearly discriminato ry, since it excluded other person similarly situate from tendering for the contract and it was plainly arbitrary and without reason.
The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action." Shri Vaidyanathan, who supplemented the arguments for the petitioner, contended that this rule has been demonstra bly infringed in the present case, even on the K.P.C. 's own showing.
He cited two documents filed by the K.P.C. to substantiate this contention.
The first is "A note on the tendering system in K.P.C." which, inter alia, reads: "2.00 Brief tender notification containing description of the work, estimated cost of the work, period of completion and the minimum prequalifying/eligibility conditions required and other general requirements such as the value/ fashion of C.M.D. to be furnished, latest certificates works, and furnishing of audited balance sheet etc.
, duly indicating the dates for issuing and receipt of tenders is widely circulated and also advertised in leading newspapers for the information of the intending tenderers.
Where prequalifying conditions are notified in the notification, the applications for the issue of tenders is carefully scrutinised with reference to these requirements and the tenders will be issued to those who comply with all the prequalifying/ eligibility requirements.
Apart from the prequalifying conditions contained in the brief tender notification, certain general requirements as described above will also be looked into.
any deficiency in the gener al requirements 239 will, however, not disqualify the tenderers from receiving the tender books as these conditions could be satisfied prior to acceptance of the successful tender.
Any clarifica tions required on the prequalifying requirements/general requirements will also be obtained before issue of tender documents from the intending tenderers.
The tenders will be issued to those tenderers who comply with the prequalifying conditions.
The second is the record of minutes showing what they actu ally did: "57.01 There was extended discussion on the issue.
C.M.D. also informed that one of the tenderers had sent a represen tation objecting to the consideration of the tender of M/s M.C.C. on the ground that they had not fulfilled the prequalifying requirements.
There was a discussion as to whether the stipulations mentioned in the N.I.T. other than those stipulated under prequalifying conditions have to be mandatorily fulfilled before the tenders were filed.
It was clarified that only three prequalifying conditions were prescribed in the N.I.T. and other details called for vide para 5(c) of N.I.T., were only for information and are such they could be met before consideration of the tenders.
It was clarified that while tenders which did not meet minimum prequalifying conditions were not eligible to be considered at all, any shortcoming in furnishing the details at the time of tendering would not disqualify the tenderer from bidding for the work, so long as the conditions could be met before finalisation of the award.
It was further clarified that the word 'shall ' used in the N.I.T. has been the normal practice in all tenders and agreement clauses and the deci sion of the K.P.C. and the application other than the mini mum qualifying requirement should be prerogative of K.P.C. only.
It was informed that the practice in K.P.C. so far has been to go by the minimum qualifying requirements as stated in the N.I.T. and the rest of the information were only for assessing the capabilities of the tenderers as well as their eligibility and simply because Mr. G.J. Fernandez has made a complaint it would not be proper to deviate from this estab lished procedure.
As per clause 11, the Corporation reserves the fight to reject or accept the tender without assigning any reasons.
In this particular case, the lacuna in furnish ing the information has been set right subsequently by the tenderer before opening of the price documents, the Chief Engineer had 240 come to the conclusion that the firm had fulfilled all the prequalifying requirements and as such the tender of M/s M.C.C. had been found to be in order.
It was also clarified by GM(T) that the use of cement hollow block masonry may not be required at all and instead the brick masonry may be used as this item of work was essentially for a filler wall and the walls would be non load bearing.
It was clarified that those who were prequalified had satisfied the condition with regard to quantity of brick masonry work.
57.02 Under the circumstances, the Committee recommended entrustment of work to M/s M.C.C. at their quoted rates amounting to Rs.209.39 lakhs together with their stipulation regarding release of security deposit against furnishing bank guarantee.
57.03 However, it was decided that in future it should be made clear that only prequalifying conditions would be mandatory.
" These two documents, particularly the last sentence of the second one, clearly show, Shri Vaidyanathan urged, that the K.P.C. had relaxed its N.I.T. standards in favour of the M.C.C. Interesting as this argument is, we do not see much force in it.
In the first place, although, as we have ex plained above, para V cannot but be read with para I and that the supply of some of the documents referred to in para V is indispensable to assess whether the applicant fulfills the prequalifying requirements set out in para I, it will be too extreme to hold that the omission to supply every small detail referred in para V would affect the eligibility under para I and disqualify the tenderer.
The question how far the delayed supply, or omission to supply, any one or more of the details referred to therein will affect any of the prequalifying conditions is a matter which it is for the K.P.C. to assess.
We have seen that the documents having a direct learning on para I viz. regarding output of concrete and brick work had been supplied in time.
The delay was only in supplying the details regarding "hollow cement blocks" and to what extent this lacuna effected the conditions in para I was for the K.P.C. to assess.
The minutes relied upon show that, after getting a clarification from the General Manager (Technical), the conclusion was reached that "the use of cement hollow block masonry may not be required at all and instead the brick masonry may be used".
In other words, the contract was unlikely to need any work in hollow cement blocks and so the documents in question was consid ered to be of no importance in judging the pre qualifying requirements.
There is nothing wrong with this, 241 particularly as this document was eventually supplied.
Secondly, whatever may be the interpretation that a court may place on the N.I.T, the way in which the tender documents issued by it has been understood and implemented by the K.P.C. is explained in its "note", which sets out the general procedure which the K.P.C. was following in regard to N.I.T.s issued by it from time to time.
Para 2.00 of the "note" makes it clear that the K.P.C. took the view that para I alone incorporated the "minimum prequalifying/eligi bility conditions" and the data called for under para V was in the nature "general requirements".
It further clarifies that while tenders will be issued only to those who comply with the prequalifying conditions, any deficiency in the general requirements will not disqualify the applicant from receiving tender documents and that data regarding these requirements could be supplied later.
Right or wrong, this was the way they had understood the standard stipulations and on the basis of which it had processed the applications for contracts all along.
The minutes show that they did not deviate or want to deviate from this established procedure in regard to this contract, but, on the contrary, decided to adhere to it even in regard to this contract.
They only decided, in view of the contentions raised by the appellant that para V should also be treated as part of the prequali fying conditions, that they would make it specific and clear in their future N.I.T.s that only the fulfilment of prequal ifying conditions would be mandatory.
If a party has been consistently and bona fide interpreting the standards pre scribed by it in a particular manner, we do not think this Court should interfere though it may be inclined to read or construe the conditions differently.
We are, therefore, of opinion that the High Court was right in declining to inter fere.
Thirdly, the conditions and stipulations in a tender notice like this have two types of consequences.
The first is that the party issuing the tender has the right to punc tiliously and rigidly enforce them.
Thus, if a party does not strictly comply with the requirements of paras III, V or VI of the N.I.T., it is open to the K.P.C. to decline to consider the party for the contract and if a party comes to Court saying that the K.P.C. should be stopped from doing so, the Court will decline relief.
The second consequence, indicated.by this Court in earlier decisions, is not that the K.P.C. cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not result in arbitrariness or discrimination.
It comes in for application where the non conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general.
For example, in this very case, the K.P.C. made some changes in the time frame origi 242 nally prescribed.
These changes affected all intending applicants alike and were not objectionable.
In the same way, changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others.
The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit.
It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able to produce the document by the time stipulated but would have applied had it known that the rule was likely to be relaxed.
But neither of these situations is present here.
Sri Vaidhyanathan says that in this case one of the appli cants was excluded at the preliminary stage.
But it is not known on what grounds that application was rejected nor has that party come to Court with any such grievance.
The ques tion, then, is whether the course adopted by the K.P.C. has caused any real prejudice to the appellant and other parties who had already supplied all the documents in time and sought no extension at all? It is true that the relaxations of the time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less.
But, we are inclined to agree with the respondent 's contention that while the rule in Ramana 's case (supra) will be readily applied by Courts to a case where a person complains that a departure from the qualifi cations has kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only to gain immunity from competition.
Assuming for pur poses of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration.
If, save for the delay in filing one of the relevant docu ments, M.C.C. is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the M.C.C. and in the K.P.C. going in for a choice of the better on the merits.
The appellant had no doubt also urged that the M.C.C. had no experience in this line of work and that the appellant was much better quali fied for the contract.
The comparative merits of the appel lant vis a vis M.C.C. are, however, a matter for the K.P.C. (counselled by the T.C.E.) to decide and not for the Courts.
We were, therefore, rightly not called upon to go into this question.
For the reasons discussed above, this appeal fails and is dismissed.
But we make no order as to costs.
R.N.J. Appeal dis missed.
[/INST]The petitioner aggrieved by the award of a contract by the respondent in favour of Mysore Construction Company (M.C.C.) filed a Writ Petition and a further Writ Appeal in the Karnataka High Court.
Being unsuccessful there he came up in appeal before this Court by way of special leave.
The single judge of the High Court had taken the view that prerequisites for the supply of tender forms were contained in Para I of the Notification Inviting Tender (NIT) and the details called for in Para V could be supplied any time.
The Division Bench on appeal did not express any opinion regarding the requirements set out in para V but was of the view that there was nothing unfair or arbitrary about the award of the contract to the MCC.
In appeal before this Court the plea of the petitioner is that the Karnataka Power Corporation should not have accepted the tender of MCC, as the MCC did not fulfil certain preliminary requirements contained in Para I and V of the NIT which according to him have to be fulfilled before the forms of tender could be supplied to any intending contractor.
Dismissing the appeal of the petitioner, the Court, HELD: Para V cannot but be read with para I. The supply of some of the documents referred to in para V is indispens able to assess whether the applicant fulfills the prequali fying requirements set out in para I.
It will be too extreme to hold that the omission to supply every small detail referred to in para V would affect the eligibility under para I and disqualify the tenderer.
[240E F] 230 If a party has been consistently and bona fide inter preting the standards prescribed by it in a particular manner, this Court should not interfere though it may be inclined to read or construe the conditions differently.
[241E] Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract.
On the other hand its tender has received due and full consideration.
If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract.
no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits.
[242E G] The comparative merits of the appellant ViS a vis MCC are, however, a matter for the KPC to decide and not for the Courts.[243C D] Ram Gajadher Nishad vs State of U.P., (C.A. 1819/89); Ramana Dayaram Sherry vs The International Airport Authority of India & Ors., ; , referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 2844 of 1979.
Appeal by Special Leave from the Judgment and Order dated 17 8 1979 of the Allahabad High Court in Civil Revision No. 1273 of 1976.
Pramod Swarup for the Appellant.
N. K. Agarwal for the Respondent (Amicus Curiae).
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave and the four associated special leave petitions question the dismissal by the High Court of Allahabad of five revision petitions filed under Section 115, Code of Civil Procedure, on the ground that they are not maintainable.
Although the five cases before us must be considered in the context of their individual facts, it is desirable to appreciate the relevant jurisdictional structure of revisional power enjoyed by the High Court from time to time.
In 1970, the provisions of section 115, Code of Civil Procedure, read : "115.
Revision : The High Court may call for the record of any case which has been decided by any court subordinate to such High Court, and in which no appeal lies thereto, and if such court subordinate appears : (a) to have exercised a jurisdiction not vested in it by law, or (b) to have exercised a jurisdiction so vested, or 35 (c) to have acted in the exercise of its jurisdiction illegally with material irregularity, the High Court may make such order in the case as it deems fit.
" A schematic analysis of the judicial hierarchy within a State indicates that the High Court, as the apex court in the hierarchy, has been entrusted, not only with the supreme appellate power exercised within the State but also, by virtue of section 115, the power to remove, in order to prevent a miscarriage of justice, any jurisdictional error committed by a subordinate court in those cases where the error cannot be corrected by resort to its appellate jurisdiction.
The two salient features of revisional jurisdiction under section 115 are, on the one hand, the closely limited grounds on which the court is permitted to interfere and on the other, the wide expanse of discretion available to the court, when it decides to interfere, in making an appropriate order.
The intent is that so serious an error as one of jurisdiction, if committed by a subordinate court, should not remain uncorrected, and should be removed and the record healed of the infirmity by an order shaped to re instate the proceeding within the proper jurisdictional confines of the subordinate court.
It is a power of superintendence, and fittingly it has been conferred in terms enabling the High Court to exercise it, not only when moved by an aggrieved person, but also suo motu.
While considering the nature and scope of the revisional jurisdiction, it is necessary however, to advert to prime circumstance that in civil cases the jurisdiction has been entrusted to the highest court of the State, demonstrating that broadly the order under section 115 is to be regarded, in the absence of anything else, as a final order within the State judiciary.
From its inception there was increasing resort to the revisional jurisdiction of the High Court under section 115.
Over the years the volume of litigation reached an insupportable point in the pending docket of the Court.
To alleviate the burden, a pattern of decentralisation of revisional power was adopted and section 115 was amended by successive State amendments, each attempting to close the gap left by its predecessor.
In its meandering course from stage to stage, this is how section 115 read : 1.
From 7th April, 1970 : By virtue of section 3, U.P. Civil Laws (Amendment) Act, 1970, section 115 was amended and the result was that : (i) The High Court had exclusive jurisdiction under section 115 in a case arising out of an original suit of the value of Rs. 20,000 and above; and 36 (ii) The High Court and the District Court had jurisdiction under section 115 concurrently in other cases.
From 20th September, 1972: section 6, U.P. Civil Laws (Amendment) Act, 1972 amended section 115 further with effect from 20th September, 1972.
Later, section 115 was amended by section 2, U.P. Civil Laws (Amendment) Act, 1973 in its application to Uttar Pradesh, retrospectively with effect from 20th September, 1972.
In consequence: (i) The High Court possessed exclusive jurisdiction under section 115 in cases arising out of original suits of the value of Rs. 20,000 and above, including such suits instituted before 20th September, 1972: (ii) The District Court possessed exclusive jurisdiction under section 115 in any other case, including a case arising out of an original suit instituted before 20th September, 1972.
Provided that in respect of cases decided before 20th September, 1972 and also all cases arising out of original suits of any valuation, decided by the District Court, the High Court alone was competent to exercise revisional power under section 115.
section 2(e), U.P. President 's Acts (Re enactment with Modifications) Act, 1974 repealed the U.P. Civil Laws (Amendment) Act, 1973, and re enacted it with certain modifications which, however, for the purposes of the present case are immaterial.
From 1st February, 1977: section 43, Code of Civil Procedure (Amendment) Act, 1976 was enacted by Parliament and amended section 115 with effect from 1st February, 1977 making substantial changes therein.
Section 97(1) of the Amendment Act provided that any amendment made, or provision inserted, in the Code of Civil Procedure by a State Legislature before the 1st February, 1978 would stand repealed except insofar as such amendment or provision was consistent with the Code as amended by the said Amendment Act.
As the Code now amended provided for revisional jurisdiction in the High Court alone, the scheme embodied in section 115 by the successive U.P. Amendment Acts was plainly inconsistent with the Code as now amended, and therefore stood repealed, the position reverting to what it was under the original section 115 before its amendment by the U.P. Civil Laws (Amendment) Act, 1970.
But section 97(2) provided that section 115 as now amended by the Amendment Act, 1976 would not apply to nor affect any proceeding for revision which had been admitted, after 37 preliminary hearing, before 1st February, 1977 and every such proceeding for revision would be disposed of as if section 43 had not come into force.
The proviso was without prejudice to the generality of the provisions of section 6, .
In the result : (i) The High Court had exclusive jurisdiction under section 115 in a revision petition filed on and after that date, irrespective of the valuation of the suit out of which the case arose : (ii) A revision petition under section 115 which had been admitted, after preliminary hearing, before 1st February, 1977 would continue to be governed by section 115 as it stood before that date.
From 1st August, 1978: Finally section 3, Code of Civil Procedure (Uttar Pradesh Amendment), Act, 1978, which was deemed to have come into force on 1st August, 1978, amended section 115 again and restored the bifurcation of revisional jurisdiction between the High Court and the District Court.
Accordingly now: (i) The High Court alone had jurisdiction under section 115 in cases arising out of original suits or other proceedings of the value of Rs. 20,000 and above, including such suits or other proceedings instituted before 1st August, 1978; (ii) The District Court alone has jurisdiction under section 115 in any other case, including a case arising out of an original suit or other proceedings instituted before 1st August, 1978; (iii) The High Court has jurisdiction under section 115 in respect of cases, arising out of original suits or other proceedings of any valuation, decided by the District Court.
(iv) A revision proceeding pending immediately before 1st August, 1978 of the nature in which a District Court would exercise revisional power under section 115 as amended by the Amendment, Act, 1978 if pending : (a) in the District Court, would be decided by that court as if the Amendment Act of 1978 were in force at all material times ; (b) in the High Court, would be decided by the High Court as if the Amendment Act of 1978 had not come into force.
The submissions made by learned counsel before us cover a wide field, but in the main, two questions arise : (1) Whether the High Court possesses revisional jurisdiction under section 115, Code of Civil Procedure in respect of an order of the District Court under section 115 disposing of a revision petition ? 38 (2) Whether the High Court possesses revisional jurisdiction under section 115 against an order of the District Court under section 25, Provincial Small Cause Courts Act disposing of a revision petition ? As regards the first question, it will be noticed that a revisional power was formerly entrusted exclusively to the highest court in the state, the High Court.
The State amendments now divided it between the High Court and the District Court.
The amendment effect by the U.P. Civil Laws (Amendment) Act, 1970 conferred exclusive jurisdiction under section 115 in the High Court in cases arising out of original suits of the value of Rs. 20,000/ and above, and in other cases the revisional jurisdiction was concurrently shared between the High Court and the District Court.
It was apparently supposed that the average litigant would prefer the less expensive and more convenient forum of the District Court.
The measure, it seems, did not bring the relief expected, and the State Legislature found it necessary, by enacting the U.P. Civil Laws (Amendment) Act, 1972 to make a clear cut division of jurisdiction between the High Court and the District Court, resulting in exclusive revisional jurisdiction to the High Court in cases arising out of original suits of the value of Rs. 20,000/ and above, and exclusive jurisdiction under section 115 to the District Court in other cases.
There was a sharp bifurcation of revisional jurisdiction, and the High Court and District Court now enjoyed mutually exclusive revisional powers.
A controversy arose whether a revisional order under section 115 made by the District Court was final or was itself amendable to the revisional power of the High Court under the same section.
The point was considered by a full Bench of the High Court in Har Parasad Singh and others vs Ram Swarup and others and it was held that no such revision petition was maintainable before the High Court.
Further State amendments were made to section 115 without materially disturbing the division of power.
But a proviso added to section 115 by the U.P. Civil Laws (Amendment) Act, 1973, followed by the U.P. President 's Acts (Re enactment with Modifications) Act, 1974 stated : "Provided that in respect of cases decided before the 20th day of September, 1972, and also all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section.
" The proviso reopened the controversy whether a revision petition lay to the High Court against a revisional order passed by the Dis 39 trict Court, and on a difference of opinion between two learned judges a third learned judge of the Allahabad High Court now held in Phool Wati and others vs Gur Sahai that a revision petition would lie.
The Code of Civil Procedure (Amendment) Act, 1976, however, superseded the scheme of bifurcation of revisional jurisdiction with effect from 1st February, 1977 and, with certain modification the position reverted to what it was under the original section 115.
In other words, the entire sphere of revisional jurisdiction was restored to the High Court, no such power being now vested in the District Court.
An exception was made where a revision petition under section 115 had been admitted, after preliminary hearing, before Ist February, 1977; it would continue to be governed by section 115 as it stood before that date.
The situation lasted only briefly, for on 1st August, 1978 the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978 substantially restored the status quo ante.
The controversy whether it is open to the High Court to exercise revisional power in respect of a revisional order under section 115 of the District Court presents little difficulty.
The basis for determining that question flows from the principle incorporated in the bifurcation of the revisional jurisdiction.
And legislative history comes to our aid.
The consistent object behind the successive amendments was to divide the work load of revision petitions between the High Court and the District Court and decentralise that jurisdiction.
That purpose was sought to be achieved by classifying all cases into two mutually exclusive categories depending on the valuation of the suit out of which they arose.
In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the construction given to a statute should be such as would advance the object of the legislation and suppress the mischief sought to be cured by it.
It seems to us that to recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme.
The intent behind the bifurcation of jurisdiction to reduce the number of revision petitions filed in the High Court would be frustrated.
The scheme would, in large measure, lose its meaning.
If a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a suit of a value less than Rs. 20,000/ , a fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for 40 the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs. 20,000/ .
That was never intended at all.
In Phoolwati (supra), considerable importance was attached to the proviso introduced in section 115 by the U.P. Civil Laws Amendment Act, 1973.
The proviso declared that "in respect of. all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section".
What it said was that no matter what the valuation of the original suit, be it Rs. 20,000/ and above or below Rs. 20,000/ , if a case arising out of such suit was decided by the District Court, the case would be amenable to the revisional power of the High Court.
We are already familiar with the category of cases where the High Court wields revisional jurisdiction over cases arising out of original suits of a value of Rs. 20,000/ or more.
That is the category already covered by the substantive provision in section 115.
The other category covered by the proviso would include those instances, for example where an original suit although of a value making it triable by a court subordinate is transferred to the District Court for trial.
Orders passed by the District Court in such a suit could constitute a case decided by it and amenable to the revisional power of the High Court.
What must be noted is that the test incorporated in the proviso is the fact that the case has been decided by the District Court.
The valuation of the suit is irrelevant.
But the proviso cannot be construed to include the case of a revisional order passed by the District Court for that would be in direct conflict with the fundamental structure itself of section 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms.
A proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision.
Har Prasad Singh (supra) and Phoolwati (supra) were considered by a Full Bench of the High Court in M/s Jupiter Fund (Pvt.) Ltd. vs Dwarka Diesh Dayal and others and in our judgment the High Court rightly laid down there that the phrase "case arising out of an original suit" occurring in section 115 does not cover orders passed in revision.
We are of opinion on the first question that the High Court is not vested with revisional jurisdiction under section 115, Code of Civil Procedure over a revisional order made by the District Court under that section.
41 We shall now advert to the second question, whether a revisional order of the District Court under section 25, Provincial Small Cause Courts Act, is amenable to the revisional jurisdiction of the High Court under section 115, Code of Civil Procedure.
Section 25 originally provided: "25.
The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.
" Section 25 was amended in its application to the State of Uttar Pradesh from time to time.
The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court.
A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes the power of revision under section 25 would vest in the High Court.
The question before us arises in those cases only where the District Judge has exercised revisional power under section 25.
Is an order so made open to revision by the High Court under section 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self sufficient code so far as the present enquiry is concerned.
For the purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under section 24 and section 25 respectively.
Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned.
A complete set of superior remedies has been incorporated in the Act.
Moreover, section 27 of the Act provides: "27.
Finality of decrees and orders.
Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final.
" The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject only to correction by the remedies provided under the Provincial Small Cause Courts Act.
It is a point for consideration that had section 25, in its application to the State of Uttar Pradesh continued in its original form the High Court would have exercised the revisional power under section 25, and no question could have arisen of invoking the revisional power of the High Court under section 115 of the Code.
All the indications point to the conclusion that a case falling within the 42 Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure.
By way of abundant caution section 7 of the Code made express provision barring the application of sections 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act.
Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act.
Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect.
No change in the principle was brought about merely because revisional power under section 25, before the proviso was added, was now entrusted to the District Judge.
It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act.
We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in section 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute.
These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli vs M/s. Bandu Motor Finance (P) Ltd. that a revisional order of the District Judge under section 25, Provincial Small Cause Courts Act could be revised by the High Court under section 115, Code of Civil Procedure.
In our opinion, the view taken by the High Court is not correct.
Accordingly, we hold that an order passed under section 25, Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the High Court under section 115, Code of Civil Procedure.
In Civil Appeal No. 2844 of 1979, S.L.P. No. 9104 of 1979, S.L.P. No. 9142 of 1979 and S.L.P. No. 9752 of 1979, the High Court has rejected revision petitions filed under section 115, Code of Civil Procedure, against the revisional orders of the District Court under section 25, Provincial Small Cause Courts Act.
On the opinion reached by us that a revision petition under section 115 is not maintainable against a revisional order under section 25, the appeal and the associated special leave petitions must be dismissed.
43 S.L.P. No. 9031 of 1979 arises out of an application for an ad interim injunction made in a pending suit.
Since then the suit has been dismissed, and an appeal against the decree is pending.
As the suit itself has been disposed of, all proceedings for grant of interim relief must be regarded as having lapsed.
The Special Leave Petition has become infructuous and must be dismissed accordingly.
It has been urged by the appellant in Vishesh Kumar vs Shanti Prasad (Civil Appeal No. 2844 of 1979) that in case this Court is of the opinion that a revision petition under section 115, Code of Civil Procedure, is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution.
We are unable to accept that prayer.
A revision petition under section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other.
In the result, the appeal and the special leave petitions are dismissed.
There will be no order as to cost.
P.B.R. Appeal and Petitions dismissed.
[/INST]The prosecution alleged that a girl below 16 years of age was sleeping outside her house with her family and that the petitioner in the company of another (acquitted accused) carried her away under intimidation to a neighbouring godown belonging to another acquitted accused and in that secluded venue committed rape on the young woman and afterwards put her back on her cot.
The trial court convicted the petitioner but on grounds of benefit of doubt acquitted the other accused.
The High Court affirmed this order.
In the special leave petition to this Court, it was contended on behalf of the petitioner that the evidence of the prosecutrix without substantial corroboration, was inadequate to rest a conviction under section 376 IPC.
Dismissing the special leave petition, ^ HELD 1.
To forsake vital consideration and go by obsolete demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'judicial ' probability.
[308A] 2.
Human psychology and behavioural probability must be borne in mind when assessing the testimonial potency of the victim 's version.
What girl would foster rape charges on a stranger unless a remarkable set of facts or cleanest motives are made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication.
The injury on the person of the victim has corroborative value.
[307G] 3.
The court loses its credibility if it rebels against realism.
The law court is not an unnatural world.
[308 B] 4.
Merely because the trial court has ultra cautiously acquitted someone, the higher court must, for that reason, cannot acquit everyone.
[308C] 5.
A socially sensitized judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it.
[308C] 6.
Observation on probative force of circumstances are not universal laws of nature but guidelines and good counsel.
[307 F] Gurcharan Singh vs State of Haryana ; referred to. 306
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<s>[INST] Summarize the judgementCivil Appeal Nos.
1450 1458 of 1990.
From the Judgment and Order dated 21.11.1988 of the Madras High Court in W.A. Nos. 864 to 870 of 1988 and W.P. Nos. 1600 and 1601 of 1986.
Narayanswamy, N. Balasubramaniam and A.T.M. Sampath for the Appellant.
M. Ramamurthy, Mrs. C. Ramamurthy, M.A. Krishnamoorthy, 639 for the Respondents.
R.C. Paul appeared in person.
These are appeals by special leave and are directed against a common judgment of the Madras High Court delivered in a group of writ appeals and a writ petition.
E.I.D. Parry (India) Ltd. (hereinafter referred to as `the employer ') has one of its units located at Ranipet in Tamil Nadu State where sanitary ware, super phosphate and insecticides are manufactured.
Some of its retiring employees filed applications under section 33 C(2) of the (`1947 Act ' for short) before the Labour Court at Madras claiming pension by alleging that payability of pension was a condition of service and the employer had stopped it without any justification and without giving notice under section 9 A of the .
The President Officer of the 2nd Additional Labour Court, Madras, allowed the same by his order dated 30th May, 1983, after computing the amounts.
The employer preferred six writ petitions.
In the meantime the same dispute had been referred to the Industrial Tribunal and it answered the reference against the employees by award dated 13th February, 1985.
The award was assailed before the High Court by the Union by filing of the seventh writ petition.
All the seven writ petitions were heard by a learned Single Judge who allowed the writ petitions of the management against the order of the Labour Court and dismissed the writ petition preferred by the labour union challenging the award of the Industrial Tribunal.
Writ appeals were carried against the Single Judge 's decision.
The main controversy before the Division Bench was as to whether pension, or as is referred to by the parties, "retiring allowance" was payable to the employees.
This dispute has a historical backdrop to which we may now advert.
Under General Office Order No. 26 dated Ist December, 1943 "retiring allowances" were provided for.
The Office Order provided that normally only employees with thirty years ' service or more would be eligible to receive "Retiring Allowance".
The Board reserved the right to alter the scale of "retiring allowance".
either generally or in respect of individual employees and had the authority to sanction `retiring allowance ' when first granted and subsequent payment became a routine matter subject to annual review.
640 Gratuities were also provided under the Office Order by saying that all permanent employees (other than workers who qualify for gratuities as per Factory Certified Standing Order) who were in the Company 's service prior to 1.1.1947 and who do not qualify for Retiring Allowance on retirement, will be eligible for gratuity on finally leaving the Company 's service subject to one or other of the prescribed conditions being fulfilled.
In all four alternatives were provided.
Clause (4) indicated that employees recruited on or after 1.1.1947 would not be entitled to any gratuity.
There was a Memorandum of Settlement between the parties which may be referred to as the settlement of 1956.
Clause (6) thereof related to gratuity and provided: "Gratuity shall in future be payable by the company in accordance with the following rules: (a)(i) Where, irrespective of the length of his past service, an employee dies in service, or is retired on a medical certificate acceptable to the company, or is retired by the company on reaching the age of superannuation, he shall be entitled to gratuity calculated at the rate of one month 's basic salary for each completed year of service, and pro rata for any partly completed year of his service ,subject to a maximum of 15 months ' basic salary if his service is less than 30 years, together with half of one month 's basic salary for each completed year of service in excess of 30 years and pro rata for any partly completed year of service in excess of 30 years. . . (d) Employees in service prior to Ist January, 1947 may opt, at the time of leaving service, either for: (i) Gratuity calculated in accordance with these rules or in accordance with the current provisions of General Office Order No. 26, whichever he prefers, or (ii) in lieu of gratuity, a retiring allowance calculated in accordance with the current provisions of General Office Order No. 26.
" This settlement as a fact incorporated the relevant part of the Office Order.
641 The came into force with effect from September, 1972 and payment of gratuity became statutory.
When that Act came into force, the Employer and the Employees ' Union jointly applied to the Government for exemption from the provisions of the statute.
The exemption was, however, not granted.
Payability of gratuity is no longer in dispute.
What is challenged is the claim of the workmen to retiring allowance (pension) under Office order No. 26.
The stand of the employees has been that the retiring allowance under General Office Order No. 26 has not been substituted by the 1956 settlement and they are, subject to being qualified, entitled to the benefit of pension and the statutory advantage of gratuity.
It is a fact that the settlement does not provide for payment of pension except to pre 1947 employees and making the benefit liable to exercise of option under clause 6(d) above.
It is not in dispute that the retiral benefit (pension) was payable to all qualified employees as a matter of practice.
If under the settlement that was not done away with, the benefit arising out of General Office Order No. 26 would still be available and gratuity contemplated under the settlement would not be a substitute of the retiral benefit of pension.
The Appellate Bench of the High Court has found that gratuity provided under the settlement was not a substitute of pension.
Mr. Narayanaswamy, learned senior counsel appearing in support of the appeals took us through the various documents and placed the matter at considerable length and with lucidity.
He even relied on what he described as the prevailing practice between 1956 and 1972 the settlement and the Gratuity Act when no retiral benefit was either claimed or paid.
We have, however, not been able to see any defect in the reasoning of the Division Bench decision of the High Court where it has ultimately come to the conclusion that the settlement had not substituted gratuity for pension.
We find that by way of an interim measure this Court by an order dated 5th May, 1989 had directed the employer to pay the pension to the employees in accordance with the order of the High Court with effect from Ist May, 1989 and that from the record appears to have been paid.
A petition had been filed in this Court on 23rd April, 1990 by the employer for modification of the condition indicated in the order granting special leave and we had heard counsel for both the sides on the said petition.
We had made it clear at the hearing of the petition for modification of the order granting special leave that the question as to payability of retirement benefit after the 1956 settlement would be examined.
The total number of employees involved in this dispute was 642 about 347.
Many of them had not only retired but had also died and in respect of those who were dead it would be a question of the benefits up to the date of death of the respective employees to be paid to their legal representatives.
Mr. Narayanaswamy had emphatically contended that what was being decided was not a claim of 347 employees but it had its repercussion on the industrial peace between the employer and the employee at other places.
We would like to make it clear that we have gone into the question confined to the claim to the employees of the Ranipet factory and not the liability of the employer generally, Besides, Mr. Narayanaswamy had also told us at the hearing that there are special features in the arrangement in regard to employees elsewhere.
We are satisfied that the Appellate Bench of the High Court was right in holding that the entitlement to pension had not been substituted by the settlement of 1956 and, therefore, the claim to pension subject to qualification being satisfied was available to be maintained notwithstanding the settlement of 1956, The High Court rightly came to the conclusion that the Labour Court had justifiably worked out the dues and the claim petitions under section 33 C(2) of the .
We uphold the judgment of the High Court and dismiss these appeals.
The employees had asked for award of interest on their dues.
The challenge of the employer was not groundless and we do not think in the facts of these cases the employees or their legal representatives would be entitled to interest.
We hope and trust that the employer would not liquidate its liability without delay by satisfying the orders of the Labour Court and the claims of the workmen or their legal representatives as and when made.
A sum of Rs. 10,000 had been given by the employer to Sri Pant for the Union to contest these matters and he has been paid the amount under this Court 's order.
No order for further courts.
T.N.A. Appeals dismissed.
[/INST]According to the Prosecution, appellants 1 and 2 have been friends and were in the habit of selling ganja and spending money lavishly.
They attempted to commit theft in their locality, but were no successful.
Therefore, they hatched a conspiracy to entice boys from affluent families to bring cash and jewellery and murder them after taking away the cash and jewellary.
Likewise, they killed 4 boys, in a span of about 5 years.
Both of them were charged with offences under section 120B read with section 34 IPC, section 364 and 392 read with section 397 IPC in all the four cases filed against them, and were convicted by the Sessions Court.
However, in one case, on appeal, they were acquitted by the High Court.
In another case, the death sentence imposed by the Sessions Court is pending confirmation by the High Court.
In the other two cases, both the appellants were sentenced to 712 death by the Sessions Court and on appeal the High Court confirmed the sentence in one case and in the other, the High Court confirmed the death sentence passed against appellant No. 1 and acquitted appellants No. 2 of all the charges.
The appellants preferred the present appeals challenging the said order of the High Court confirming the sentences against them by contending that there was no proper identification of the dead body and that the approver was not a reliable witness and since his evidence did not receive corroboration, it cannot form the basis for convicting the appellants.
It was also contended that the extreme penalty of death sentence imposed was not justified.
Dismissing the appeals, this Court, HELD: 1.1 In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti.
The fact of death of the deceased must be established like any other fact.
Corpus delicti in some cases may not be possible to be traced or recovered.
If a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out, it is unlikely that the dead body may be recovered.
If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc.
and that would afford a complete immunity to the guilty from being punished and the accused would escape even when the offence of murder is proved.
What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.
[717A D] 1.2 In the instant case, the evidence of PWs.
7 to 10 would establish that they have seen the dead body of the deceased in the well and brought it out and the photograph was taken at the time of inquest.
It was identified to be that of the deceased by no other than the mother of the deceased.
Thus there is no doubt as regards the identity of the dead body.
Also the medical evidence establishes that the deceased died due to stabbing with sharp edged weapon like knife.
[717E] 2.
Law is settled that an approver is a competent witness against the accused person.
But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence 713 of the approver, a particips criminis from independent evidence occular or circumstantial, of general particulars regarding the story spoken of by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance.
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances.
In one of the two trials there is no dispute that such a corroborative evidence connecting both the appellant is available which was minutely considered by the trial court and the High Court and was accepted.
There is infirmity in that regard.
In the other trial appellant No. 2 was acquitted on the ground that his extra judicial confession made to PW 23, the only corroborative evidence, was disbelieved by the High Court.
Both the Courts below gave categorical finding that PW 1 is a reliable witness.
The evidence of the approver received corroboration from independent evidence.
The canopy of the material evidence from independent sources sufficiently corroborates the approver 's evidence.
He is a reliable witness.
No infirmity has been pointed out to disbelieve his evidence.
[719D H; 720A] Rameshwar vs The State of Rajasthan, ; ; section Swaminathan vs State of Madras, AIR 1957 SC 340; Sarwan Singh vs The State of Punjab, , ; ; B.D. Patil vs State of Maharashtra, ; Md. Hussan Umar Kochra etc.
vs K.S. Dalipsinghji & Anr., [1970] 1 SCR 130; Ram Narain vs State of Rajasthan, ; and Abdul Sattar vs Union Territory, Chandigarh, [1985] (Suppl.) SCC 599, relied on.
King vs Baskervilli, and Mahadeo vs The King, AIR 1936 P.C. 242, referred to.
In the instant case, it is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja.
They conspired to entice innocent boys from affluent families, took them to far flung places where the dead body could not be identified.
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected.
Four murders in a span of five years were committed for gain in cold blooded, premeditated and planned way.
In this case the trial of the murder relating to the two deceased practically took place simultaneously by which date the appellants were convicted for the murder of two other boys.
Therefore, the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts.
One of the deceased is no other than the nephew of appellants No. 1.
This 714 would establish his depravity and hardened criminality.
No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means to living.
As such there is no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court.
[721D G] 4.
The doctrine of benefit of doubt only would operate in proof of the commission of the offence.
If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to that benefit and be acquitted.
The benefit of doubt again does not enter in the area of consideration of imposing sentence.
[720C] 5.1.
Undue sympathy to impose inadequate sentence would do harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.
If the courts did not protect the injured the injured would then resort to private vengeance.
It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
[721C] 5.2.
The compassionate grounds such as the accused being young bread winners of the family etc.
would always be present in most casts and are not relevant for interference with the sentence.
[722D] 6.
Under section 235(2) when the accused has been given right to be heard on the question of sentence it is a valuable right.
To make that right meaningful the procedure adopted would be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence.
The hearing may be on the same day if the parties are ready or to a next date but once the court after giving opportunity, proposes to impose appropriate sentence again there is no need to adjourn the case under section 235(2) to next date.
In the present matters the counsel was directed by the High Court to show any additional grounds on the question of sentence, but the counsel was unable to give any additional ground.
[722B C]
</s>
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<s>[INST] Summarize the judgementminal Appeal No. 164 of 1967.
Appeal by special leave from the judgment and order dated October 14, 1966 of the Allahabad High Court, Lucknow Bench, in Criminal Appeal No. 425 of 1964.
O. P. Varma, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Dua, J.
Subedar, appellant, has come up an appeal by special leave from his conviction under section 396 read with section 109, I.P.C. and sentence of life imprisonment imposed by the temporary Civil & Sessions Judge, Hardoi and affirmed on appeal by the Allabad High Court according to which the appellant 's case is covered by the second and third clauses of section 107, I.P.C. read with Explanation 2.
Seven persons, including the appellant, were tried, fixe under section 396, I.P.C. and Subedar, appellant, and Tota under section 396 read with section 109, I.P.C. The trial court convicted six and acquitted one.
The appeal of the convicted persons to the High Court failed.
In this Court only Subedar has appealed.
According to the courts below Subedar and Tota were not amongst the dacoits.
They are, however, stated to have assembled at the time of the dacoity which was committed on the night between the 21st and 22nd March, 1963.
Subedar, it is not disputed, is a first cousin of the victims of the dacoity (Gajodhar 828 and Chhotey Lal) and is a resident of village Zafarpur where the dacoity was committed.
Gajodhar, it may be stated, was killed during the course of the dacoity.
The circumstances on which the prosecution relied against Subedar in the High Court are (1) bitter enmity between Gajodhar and Chhotey Lal and, Subedar and Tota who are fast friends on the other; (2) the nature of the incident suggests that the primary object of the culprits was to commit the murder of Gajodhar and Chhotey Lal and touch the culprits did not succeed in killing Chhotey Lal his property was looted as an incidental venture; (3) on the evening preceding the night of dacoity, Subedar and Tota were seen in a grove south of the village within less than a mile from Zafarpur in the company of five or six persons including appellant, Gajju son of Chheda, armed with kantas, bhallas and lathis.
On the night following the dacoity was committed at the house of Gajodhar and Chhotey Lal when Gajodhar was killed and Chhotey Lal seriously injured and in the commission of that offence Gajju son of Chheda participated; (4) Subedar, who was inimical towards Gajodhar.
and Chhotey Lal tried to show false sympathy for them by raising an alarm at the time of dacoity; (5) on the following morning Subedar lodged first information report by way of Peshabandi in order to, put the police on wrong track.
None of these circumstances is, in our view, established on the record; nor can they be considered either singly or collectively to be sufficiently cogent to bring home to the appellant abetment of the offence under section 396, I.P.C. beyond the possibility of a reasonable doubt.
According to Chhotey Lal undoubtedly there was a dispute in regard to property between him and the appellant who is his first cousin and indeed court litigation was pending between them.
But it seems to be an exaggeration to say that there was bitter enmity between the parties.
In support of the second circumstance also we are unable to find any evidence on the record.
The inference seems to be conjectural, not supported by the material on the record on any rational basis.
The charge under section 396, I.P.C. also postulates murder in the course of the commission of dacoity and does not quite support the High Court 's view.
In any event it does not implicate the appellant.
After dealing with the last two circumstances we will turn to the third.
Subedar, it is conceded, actually lodged the first information report (exhibit Ka 7) on the, morning of 22nd March.
It was a writ 829 ten report covering nearly three printed pages.
Now, merely because there was some dispute or litigation pending in courts between the parties it does not follow that the report was lodged by the appellant with the object of misleading the police or in order to forestall suspicion against him.
From the contents of the report it is not possible to draw this inference.
There is nothing mis leading in it and certainly nothing indicative of a design to put the police on a wrong track.
In fact its detailed nature suggests.
that it must have emanated from the persons who had taken full account of the loss and had even evaluated the articles stolen.
The dacoity and murder it may be recalled was committed on the night between 21st and 22nd March.
The written information was given by Subedar on the morning of the 22nd at 6.15 a. M. at the police station about 7 miles away.
In these circumstances the suggestion of Peshabandi (to forestall suspicion) by the appellant seems to be wholly insupportable.
Chhotey Lal, who appeared as P.W. 2, admitted in his cross examination that Subedar, accused, had gone to the, police station to lodge a report regarding the occurrence in question.
Though he denied that he had sent Subedar to lodge the report he was constrained to admit that the following day at 9 or 10 O 'clock the Sub Inspector had also told him that Subedar had gone to the police station to lodge the report.
He also admitted that when the Sub Inspector informed him about Subedar having gone to lodge the report on his behalf he did not tell the Sub Inspector that Subedar was inimical to him and his report should, therefore , be shown to him for scrutiny The detailed nature of the report, the contents of which have not been show in to be incorrect, were presumably given to the appellant by Chhotey Lal.
These circumstances support rather than negative the theory that Chhotey Lal had sent Subedar for lodging the report.
There is, however, positive evidence in the statement of Dammar (P.W. 5) that Chhotey Lal had sent the appellant to lodge airport.
Dammar (P.W. 5) had also accompanied Subedar along with Lila Pradhan and the chowkidar.
We see no reason for disbelieving the testimony of P.W. 5.
P.W. 17 Chaudhari Ishrat Husain, Sub Inspector, has stated that Subedar was arrested by him on the 15th April, 1963 The statement of Babu Ram (P.W. 7) and Khanna (P.W. 8), the two witnesses on whose evidence the appellant is convicted were recorded by him on the 28th March, 1963.
It is, however, not known as to what they had stated during the investigation.
A day earlier on 27th March, 1963 P.W. 17 had actually framed a charge sheet against Jitta and Gajjoo son of Rupan Pasi.
On the,.
9th April, 1963 an application by Chhotey Lal was received by P.W. 17 in which suspicion was cast on Subedar and Tota.
Prior to 9th April, according this witness, he had no proof of these two persons having participated in the dacoity though he admits that he had already recorded Chhotey Lal 's statement before 9th April.
In fact Sub Inspector Deorary (P.W. 15) had recorded 830 Chhotey Lal 's statement as early as March 22, 1963 and it was from P.W. 15 that P.W. 17 took over the investigation.
P.W. 15 does not say that Chhotey Lal or anyone else suspected the, appellant The foregoing discussion strongly indicates that the implication of Subedar, appellant, was an after thought.
Circumstances nos.
4 and 5 have thus no basis and appear to be purely conjectural.
We may now appropriately refer to the statements of the, two witnesses whose sole, testimony appears to be the basis of the appellants conviction.
The third circumstance is found on their evidence.
Babu Ram (P.W. 7) whose statement was recorded in court on the 28th March, 1964 has deposed that about a year earlier he was returning to his village, from the Consolidation Office at Thomharwa in the evening when the sun was about to set.
Khanna and Bashir were with him.
When they reached near the big grove lying to the south of village Daulatpur, he saw five or Six persons in the grove.
Out of them he knew only Tota and with Subedar.
Others were not known to him.
They were armed ballam, kanta and lathis.
On the same night a dacoity was committed at the residence of Gajodhar and he was killed by the dacoits.
Khanna (P.W. 8) has deposed in similar terms.
The contradictions elicited in their cross examination would show that their statement on the question of the presence of the appellant in the grove, cannot be safely relied upon.
According to Babu Ram who had on the day in question gone from Katghara (which was also the village of Khanua, P.W. 8) to the Consolidation Office in village Thomharwa along with Khanna and Bashir, they had made merely oral request in regard to their grievance without subMitting any application.
Khanna (P.W. 8) has, on the other hand, stated that Bashir and Babu Ram met him only on his way back home.
He professes to have submitted his application but expresses ignorance about Babu Ram and Bashir having done so because they had not met him, in the Consolidation Office.
This contradiction on the facts and circumstances of this case is very material and casts a serious doubt on the veracity of their version in regard to the circumstances in which they profess to have seen the appellant I near the grove.
In their cross examination a suggestion was also thrown that Subedar had appeared as a defence witness in a case, against one Jailal, Chamar, in which case these two witnesses had appeared for the prosecution.
This suggestion was apparently intended to indicate the motive on the part of these two witnesses to falsely implicate the appellant.
The evidence of these two witnesses seems to us to be too infirm to carry conviction to their deposition that they saw the appellant as alleged.
It is indeed some what surprising how their evidence was accepted by the courts below, without appropriate scrutiny, in holding the presence of the appellant in the grove.
But even assuming that the appellant was seen by them as alleged, that by 831 itself is not sufficient to connect him with the offence charged.
It cannot be said that from this it follows as a necessary and the only rational or reasonable inference that the appellant was as abetter of the dacoity _and murder.
On a practical approach the reasonable possibility of his innocence cannot be ruled out.
The courts below have erroneously ignored this vital aspect.
At this stage we may refer to some evidence which was recorded in the High Court on appeal.
It appears that on behalf of the present appellant and Tota it was complained in the High Court by their counsel that the circumstance that these two accused persons had been seen with the culprits who Committed dacoity in question was not clearly put to them under section 342, Cr.
P.C. by the trial court, and that they were misled in their defence because the trial court had questioned them in a manner which suggested that they been charged with having actually committed dacoity along with the other culprits.
The High Court, therefore, summoned Subedar and Tota who were on bail.
This order was passed on 11th August, ' 1966.
Subedar was accordingly examined by the High, Court on the 24th August and was confronted with the statement of Babu Ram and Khanna (PWs 7 and 8).
The appellant denied that he was ever in the grove as stated by these witnesses and stated that he had enmity with them and added that they were police witnesses.
Subedar also expressed a desire to produce witnesses in his defence.
Lila Pradhan was in the circumstances examined by the High Court as D.W. 4.
It may be, recalled that according to Danunar, Lila Pradhan was also one of the persons who had gone to lodge the report with him and Subedar.
Lila Pradhan deposed in his examination in chief in the High Court that Chhotey Lal had asked Subedar to go and lodge a report in the police station about the dacoity in question.
Subedar also raised an alarm at the time of the dacoity.
This witness, after his cross examination by the counsel for the State., was examined by the High Court at some length He was village Pradhan for six years.
His statement seems to be a frank and straightforward.
From the evidence on the record we are also, inclined to think that the appellant must have been included in the original list of prosecution witnesses.
This view finds Support from the statement of Sub Inspector, Deorary, (P.W. 15) who had recorded the statements of Chhotey Lal and Dammar and of other witness" on the day following the. dacoity, P.W. 17 seems to us to have wrongly denied this fact.
Apart from the material which we have just discussed.
there is no other relevant material to which our attention has been invited or which we have come across on this record relevant to the case against Subedar.
From this it is crystal clear that there was no real suspicion against Subedar and that it was in April that be was involved as an afterthought presumably because of some other ulterior consideration.
Both the trial court and the High 832 Court seem to us to have completely gone wrong in convicting Subedar.
The respondent 's counsel strongly contended that this Court should not interfere On Special leave appeal under article 136 with the conclusions of the two courts below holding die appellant guilty.
We do not agree with this submission.
This Court undoubtedly does not normally proceed to review and reappraise for itself the evidence in criminal cases when hearing appeals under article 136.
But when the judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or mistake in the reading of evidence or by ignoring material evidence, then it is not only empowered but is expected to interfere to promote the cause of justice.
Article 136 is worded in very wide terms and the power conferred by it is not hedged in by any technical hurdles.
This over riding and exceptional power has been vested in this Court to be exercised sparingly and only in furtherance of the cause of justice.
In the present case which depends only on circumstantial evidence, the courts below have completely ignored the warming given by this Court in Hanumant vs The State of Madhya Pradesh(1) against the danger of conjectures and suspicions taking the place of proof.
The caution was reiterated thus : "It is well to remember that in cases where the evidence 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 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 is not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act , must have been done by the accused." (PP 1097 8).
Of course,the evidence on basic or primary facts has to be approached in the ordinary practical way but the conclusions in the case of circumstantial evidence must necessarily point only to the guilt of the accused excluding any reasonable possibility of his innocence.
We are not satisfied that the evidence against the appellant in this case satisfies this test.
The appeal accordingly succeeds.
The order of the court below as against the appellant is set aside and the appellant acquitted.
Y.P. Appeal allowed.
(1) (1952) S.C.R. 1091.
[/INST]The, assesses who were dealers in food grains supplied to the Regional Food Controller diverse quantities of wheat in compliance with the provisions of the U.P. Wheat Procurement (Levy) Order, 1959.
The Sales tax Officer levied tax under the U.P. Sales tax Act on the aggregate of the price of wheat supplied by the assesses, rejecting the assesses ' contention that the wheat supplied was not sold to the Controller.
In appeal, the Assistant Commissioner (Judicial) Sales Tax held the supply was not taxable since there was no "sale" within the U.P. Sales tax Act.
This order was confirmed by the Additional Judge (Revision) Sales Tax.
On reference, the High Court answered the question against the assesses.
Allowing the assesses ' appeal by special leave, this Court.
HELD : The supply, pursuant to cf. 3 of the U.P. Wheat Procurement (Levy) Order, 1959 and acceptance thereof, does not result in a contract of sale.
Clause 3 of the order sets up a machinery for compulsory acquisition by the State Government of stocks of wheat belonging to the licensed dealers.
The Order contains a bald injunction to supply wheat of the specified quantity day after day, and enacts that in default of compliance the dealer is liable to be punished; it does not envisage any consensual arrangement.
To ensure, that the dealer carries out his obligation his premises are liable to be searched and his property sequestered.
The order does not require the State Government to enter into even an informal contract.
Sale of goods predicates a contract of sale between persons competentto contract for a price paid or promised : a transaction.
in which an obligation to supply goods is imposed, and which does not involve an obligation to enter into a contract, cannot be called a 'sale ', even if the person supplying goods is declared entitled to the value of goods, which is determined or determinable in the manner prescribed.
Assuming that between the licensed dealer and the Controller, there may be some arrangement about the place and manner of delivery of wheat, and the payment of "controlled price," the operation of cl. 3 does not on that account become contractual.
[675 H 676 D] Commissioner of Sales Tax, U.P. Lucknow vs Ram Bilas Ram Gopal, [1969] All.
L.J. 424; State of Madras vs Gannon Dunkerlev and Co.,(Madras) Ltd; [1959]S.C.R. 379 M/s.
New India Sugar Mills Ltd. vs
Commissioner of Sales Tax, Bihar, [1963] Suppl.
2 S.C.R. 459; Indian Steel & Wire Products Ltd., vs State of Madras, ; ;Andhra Sugars Ltd. &Anr.
vs State of Andhra Pradesh & Ors.
; ; State ofRajasthan & Anr.
vs M/s. Karan Chand Thappar & Bros. Ltd. [1969] IS.C.R. 861, Kirkness (inspector of Taxes) vs john Hudson & Co. Ltd., [1955] A.C. 696 referred to. 672
</s>
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<s>[INST] Summarize the judgementAppeal Nos. 282 & 283 of 1959.
Appeals by special leave from the judgment and decree dated December 18, 1956, of the Bombay High Court at Bombay in Second Appeals Nos. 233 and 185 of 1955 respectively.
G. section Pathak, O. C. Mathur, J. B. Dadachanji and Ravinder Narain, for the appellants.
section G. Patwardhan and K, R. Choudhri, for the respondents.
May 2.
The Judgment of the Court was delivered by SINHA, C.J.
These two appeals, by special leave, directed against the judgment and decree of a single Judge of the Bombay High Court, raise a common question of law, and have. therefore, been heard together.
This judgment will govern both the cases.
The appellants were plaintiff landlords, 710 and the respondents were tenants in possession of certain lands which were situate in the erstwhile State of Baroda before it became part of the State of Bombay, by merger.
The Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will he referred to as the Act was extended to Baroda on August 1, 1949.
The suits out of which these appeals arise had been instituted by the appellants on the basis that the tenants respondents had become trespassers on the service of notice in March 1950, with effect from the beginning of the new agricultural section in May 1951.
As the defendants did not comply with the terms of the notice and continued in possession of the lands, to which they had been inducted, the landlords instituted suits for possession in the Civil Court.
The Trial Courts and the Court of Appeal decreed the suits for possession.
But on second appeal by the tenants, the learned Single Judge.
who heard the second appeals, allowed the appeals and dismissed the suits with costs throughout.
It is not disputed that if the provisions of the Act were applicable to the tenancies in question, the plaintiffs ' suits for possession must fail, because these were instituted in the Civil Courts, which have Jurisdiction to try the suits only if the dependents were trespassers.
It is equally clear that if the tenants could take advantage of the provisions of the Act, any suit for possession against a tenant would lie in the Revenue Courts and not in the Civil Courts.
But reliance was placed upon the notification issued by the Bombay Government on April 24, 1951, to the following effect : "In exercise of the powers conferred by clause (d) of sub section (1) of Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay LXVII of 1948) the Government of Bombay is pleased to specify the area 711 within the limits of the Municipal Borough of Baroda City and within the distance of two miles of the limits of the said Borough, as being reserved for Urban, non agricultural or industrial development".
The learned Judge of the High Court, in disagreement with the Courts below,, held that under provisions of section 3A(1) of the Bombay Tenancy Act, 1939, as amended, a tenant would be deemed to be a protected tenant from August 1, 1950, ' and that vested right could not be affected by the notification aforesaid, issued by the Government under section 88 (1)(d) which had the effect of putting the lands in question out of the operation of the Act.
In other words, the learned Judge held the notification had no retrospective effect so as to take away the protection afforded to the tenants by a. 3A, aforesaid.
The learned counsel for the appellants contended.
in the first instance, that the notification, set out above, under section 88 (1)(d) operated with effect from December 28, 1948, when the Act came into force.
In this connection, reliance was placed upon the decision of this Court, pronounced by me sitting in a Division Court, in the case of Sakharam vs Manikchand Motichand Shah, (1) in these words : "The provisions of a. 88 are entirely pro spective.
They apply to lands of the descrip tion contained in cls.
(a) to (d) of section 88(1) from the date on which the Act came into operation, that is to say, from December 28, 1948.
They are not intended in any sense to be of a confiscatory character.
They do not show an intention to take away what had already accrued to tenants acquiring the status of 'protected tenants".
712 It is necessary, therefore, to make some observations explaining the real position.
In that case, the question then in controversy had particular reference to section 88(1)(c), which is the only provision quoted at page 2 of the blue print of the judgment.
That case had nothing to do with el.
(d) of section 88(1).
In that case, the lands in dispute lay within two miles of the limits of Poona Municipality.
It is clear, therefore, that the inclusion of el.
(d) of section 88(1) was a slip and certainly was not relevant for consideration in that case.
The provisions of section 88(1) are as follows : "Nothing in the foregoing provisions of this Act shall apply: (a) to lands held on lease from the Govern ment a local authority or a co operative society; (b) to lands held on lease for the benefit of an industrial or commercial undertaking; (c) to any area within the limits of Greater Bombay and within the limits of the Municipal boroughs of Poona City and Suburban, Ahmedabad, Sholapur, Surat and Hubli and within a distance of two miles of the limit,% of such boroughs; or (d) to any area which the State Government may, from time to time, by notification in tile Official Gazette, specify as being reserved for urban non agricultural or industrial development.
It will be noticed that cls.
(a), (b) and (c) of section 88(1) apply to things as they were at the date of the enactment, whereas el.
(d) only authorised the State Government to specify certainareas as being reserved for urban non agricultural or industrial development, by notification in the Official Gazette, 713 from time to time.
Under cls.
(a) to (c) of a. 88(1) it is specifically provided that the Act, from its inception did not apply to certain areas then identified; whereas el.
(d) has reference to the future.
Hence, the State Government could take out of the operation of the Act such areas as it would deem should come within the description of urban non agricultural or for industrial development.
Clause (d), therefore, would come into operation only upon such a notification being issued by the State Government.
The portion of the judgment, quoted above, itself makes it clear that the provisions of section 88 were never intended to divest vested interests.
To that extent the decision of this Court is really against the appellants.
It is clear that the appellants cannot take advantage of what was a mere slip in so far as cl.
(d) was added to the other clauses of s.88(1), when that clause really and did not fall to be considered with reference to the controversy in that case.
In other words, this Court never intended in its judgment in Sakharam 's case`e(1) to lay down that the provisions of cl.(d) of s.88 (1) aforesaid were only prospective and had no retrospective operation.
Unlike cls.
(a), (b) and (c) of s.88(1), which this Court held to be clearly prospective, those of cl.(d) would in the context have retrospective operation in the sense that it would apply to land which could be covered by the notification to be issued by the Government from time to time so as to take those lands out of the operation of the Act of 1948, granting the protec tion.
So far as cls.
(a), (b) and (e) are concerned, the Act of 1948 would not apply at all to lands covered by them.
But that would not take away the rights conferred by the earlier Act of 1939 which was being repealed by the Act of 1948.
This is made clear by the provision in s.89(2) which preserves existing rights under the repealed Act.
Sakharam 's case, (1) was about the effect of cl.
(c) on (1) ; 714 the existing rights under the Act of 1939 and it was in that connection that this Court observed that s.88 was prospective.
But el.
(d) is about the future and unless it has the limited retrospective effect indicated earlier it will be rendered completely nugatory.
The intention of the legislature obviously was to take away all the benefits arising out of the Act of 1948 (but not those arising from the Act of 1939) as soon as the notification was made under el.
This is the only way to harmonise the other provisions of the 1948 Act, conferring certain benefits on tenants with the provisions in el.
(d) which is meant to foster urban and industrial development.
The observations of the High Court to the contrary are, therefore, not correct.
But the matter does not rest there.
The notification of April 24, 1951, was cancelled by the State Government by the following notification dated January 12, 1953 "Revenue Department, Bombay Castle, 12th, January, 1953.
Bombay Tenancy and Agricultural Landis Act, 1948.
No.9361/49 : In exercise of the powers conferred by clause (d) of sub section (1) of Section 88 of the Bombay Tenancy and Agri cultural Lands Act, 1948 (Bombay LXVII of 1948).
The Government of Bombay is pleased to cancel Government Notification in the Revenue Department No.9361/49 dated the 24th/25th April, 1951".
It would thus appear that when the matter was still pending in the Court of Appeal, the judgment of the lower Appellate Court being dated September 27, 1954, the notification cancelling the previous notification was issued.
The suit had, therefore, to be decided on the basis that there was no notification in existence under s.88(1)(d), which could take the disputed lands out of the operation 715 of the Act.
This matter was brought to the notice of the learned Assistant Judge, who took the view that though, on the merger of Baroda with Bombay in 1949, the defendants had the protection of the Act, that protection had been taken away by the first notification ' which was cancelled by the second.
That Court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal.
In that view of the matter, the learned Appellate Court held that the tenants defendants could not take advantage of the provisions of the Act, and could not resist the suit for possession.
In our opinion, that was a mistaken view of the legal position.
When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under cl.(d) of s.88(1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law.
In other words, the tenents could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired.
But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which had accrued to them as a result of the first notification.
In our opinion, this argument is without any force.
If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been re opened and the execution taken thereunder may not have been recalled.
But it was during the pendency of the suit at the appellate stage that the second notification was issued canceling the first.
Hence, the Court was bound to 716 apply the, law as it was found on the date of its judgment.
Hence, there is no question of taking away any vested rights in the landlords.
It does not appear that the second notification, canceling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court.
At any rate, there is no reference to the second notification.
Be that as it may, in our opinion, the learned Judge came to the right conclusion in holding that the tenants could not be ejected, though for wrong reasons.
The appeals are accordingly dismissed, but there would be no order as to costs in this Court, in view of the fact that the respondents had not brought the second notification cancelling the first to the pointed attention of the High Court.
Appeal dismissed.
[/INST]The Government of India under section 24 of the , ordered an enquiry into the disaster in the respondent 's colliery.
The Court of inquiry submitted its reporto 476 September 26, 1955, and found inter alia that the accident was due to the negligence on the part of the management and therefore ordered the owners to pay the expenses of the en quiry as provided by r. 22 of the Mines Rules, 1955.
The amount of the expenses to be paid were, however, not quanti fied in the report.
At the request of Chief Inspector, Mines, the judge of the Court of Inquiry after due notice to the parties concerned quantified the expenses by his order dated September 7, 1956.
The respondents petitioned under article 226 of the Constitution challenging the order quantifying the expenses on three grounds (1) the Court of Inquiry became functus officio after it had 'submitted its report and therefore the judge had no power left to pass the order quantifying the expenses.
If the said order was to be treated as review of the order awarding expenses it would still be void as there was no power of review in the Court of Inquiry (3) When the order quantifying the expense was passed the two assessor were not present and were not associated with the enquiry therefore, the judge could not pass the order alone.
The High Court allowed the writ petition adding that it was not interfering with the order relating to expenses made by the judge in his report dated September 26, 1955.
Held, that when an order to pay expenses is passed without quantifying the amount in a report by a Court of Inquiry, it necessarily carries with it the implication that the person appointed to hold the enquiry would quantify the expenses later in materials being placed before him as otherwise such an order would be rendered completely nugatory.
Where no time was fixed within which the report had to be made by the Court of enquiry it cannot be said that the period for which the Court of enquiry was appointed necessarily came to an, end with the submitting of the report and this Court of Inquiry became functus officio.
Held, further, that when the report itself contained the order for payment for expenses, the later order is merely a quantification of the earlier order and would be on a par with what happens everyday in courts which pass decrees with costs.
When giving judgment, courts do not quantify cost in the judgment.
Therefore the order dated September 7, 1956, cannot be treated as a review or any variation of the order pawed in the report of September 26, 1955, which the judge had no powers to pass.
Held, also, that it was open to the judge of the Court of inquiry to quantify the expenses and that it was not necessary that at that stage the assessors should be associated with him.
Under section 24(1) of the Act$ the enquiry is held by a competent 477 person for the purpose, and assessors are appointed to assist the person to hold the enquiry and the assessors need not be associated with him in all orders which are in 'the nature of ministerial order and quantification of expenses must be treated as an order of a ministerial nature.
</s>
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<s>[INST] Summarize the judgementAppeals Nos. 220, 423 and 424 of 1962.
Appeals from the judgment and order dated January 12, 1960 and August 19, 1960 of the Andhra Pradesh High Court, in Writ Appeals Nos. 120 and 57 of 1960.
S.K. Bose and B. P. Maheshwari, for the appellant(in C. A. No. 220 of 1962).
M.C. Setalvad, section K. Bose and Sardar Bahadar, for the appellants (in C. As.
423 & 424 of 1962).
K. R. Chaudhuri and P. D. Menon, for respondent No, 1 (in all the appeals).
450 1963.
March 20.
The judgment of the Court was delivered by WANCHOO J.
These three appeals on certificates raise the same question and will be dealt with together.
It will be enough to refer to the facts of one appeal only i.e., No. 220, to understand the point arising for decision, the facts in the other appeals being similar.
Briefly the facts in appeal No. 220 are that an order referring certain disputes between the appellant and its workmen was made to the Industrial Tribunal, Andhra Pradesh on June 6, 1956.
The tribunal sent its award to Government in September, 1957.
Under section 17 of the Industrial Disputes Act, No. XIV of 1947 (hereinafter referred to as the Act), the award has to be published by the appropriate government within a period of thirty days from the date of its receipt by the government in such manner as the government thinks fit.
Before, however, the Government could publish the award under section 17, the parties to the dispute which had been referred for adjudication came to a settlement and on October 1, 1957, a letter was written to Government signed jointly on behalf of the employer and the employees intimating that the dispute, which had been pending before the tribunal, had been settled and a request was made to Government not to publish the award.
The Government, however, expressed its inability to withhold the publication of the award, the view taken by the Government being that section 17 of the Act was mandatory and the Government was bound to publish the award.
Thereupon the appellants filed writ petitions before the High Court under article 226 of the Constitution praying that the Government may be directed not to publish the award sent to it by the industrial tribunal.
The High Court held that section 17 was mandatory and it was not open to Government to withhold 451 publication of an award sent to it by an industrial tribunal.
Therefore it was not open to the High Court to direct the Government not to publish the award when the law enjoined upon it to publish it.
The writ petitions were thereforedismissed.
There were then application for certificats which were granted and that is how the matter has come up before us.
The main contention on behalf of the appellants before us is that section 17 of the Act when it provides for the publication of an award is directory and not mandatory.
In the alternative, it is contended that even if section 17 is mandatory some via media has to be found in view of the conflict that would arise between an award published under section 17 (1) and a settlement which is binding under section 18(1),and therefore where there is a settlement which is binding tinder section 18(1 ) it would be open to the Government not to publish the award in these special circumstance.
We are of opinion that the first contention on behalf of the appellants, namely, that the publication of the award under section 17 (1) is directory cannot be accepted.
Section 17 (1) lays down that every award shall within a period of thirty) days from the date of its receipt by the appropriate government be published in such manner as the appropriate government think fit.
The use of the word "shall" is a pointer to section 17(1 ) being mandatory, though undoubtedly in certain circumstances the word "shall" used in a statute may be equal to the word "may".
In the presentcase however it seems to us that when the word "shall" was used in section 17(1) the intention was to give a mandate to Government to Publish the award within the time fixed therein.
This is enforced by the fact that sub section
(2) of section 17 provides that "the award published under Sub section (1) shall be final and shall not be called in question by any 452 court in any manner whatsover".
Obviously when the legislature intended the award on publication to be final, it could not have intended that the Government concerned had the power to withhold publication of the award.
Further section 17A shows that whatever power the Government has in the matter of an award is specifically provided in that section, which allows the Government in certain circumstances to declare that the award shall riot become enforceable on the expiry of thirty days from the date of its publication, which under section 17 A is the date of the enforceability of the award.
Section 17 A also envisages that the award must be published though the Government may declare in certain con tingencies that it may not be enforceable.
Subsection (2) of section 17A also gives power to Government to make an order rejecting or modifying the award within ninety days from the date of its publication.
It is clear therefore reading section 17 and section 17A together that the intention behind section 17 (1) is that a duty is cast on Government to publish the award within thirty days of its receipt and the provision for its publication is mandatory and not merely directory.
This however does not end the matter, particularly after the amendment of the Act by Central Act XXXVI of 1956 by which section 18 (1) was introduced in the Act.
Section 18 (1) provides that a settlement arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
'Settlement" is defined in section 2 (p) as meaning a settlement arrived at in the course 'or conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation 453 officer.
When such an agreement has been arrived at, though not in the course of conciliation proceedings, it becomes a settlement and section 18 (1) lays down that such a settlement shall be binding on the parties thereto.
Further section 18 (3) provides that an award which has become enforceable shall be binding on all parties to the industrial dispute and others.
Section 19 (1) provides that a settlement comes into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of settlement is signed by the parties to the dispute.
In the present case the settlement that was arrived at between the parties to the dispute was signed on October 1, 1957, and as it had not fixed any date for its coming into force, it became operative from October 1, 1957 itself and was binding on the parties to the agreement who were also before the industrial tribunal and would be bound by the award after its publication.
The contention on behalf of the appellant in the alternative is this.
It is said that the main purpose of the Act is to maintain peace between the parties in an industrial concern.
Where therefore parties to an industrial dispute have reached a settlement which is binding under section 18 (1), the dispute between them really comes to an end.
In such a case it is urged that the settlement arrived at between the parties should be respected and industrial peace should not be allowed to be disturbed by the publication of the award which might be different from the settlement.
There is no doubt that a settlement of the dispute between the parties themselves is to be preferred, where it can be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award, as it is arrived at by the free will of the parties and is a pointer to there being goodwill between them.
Even though this may be so, we have still to reconcile the mandatory 454 character of the provision Contained in section 17 (1) for the publication of the award to the equally mandatory character of the binding nature of the settlement arrived at between the parties as provided in section Is (1).
Ordinarily there should be Do difficulty about the matter, for if a settlement has been arrived at between the parties while the dispute is pending before the tribunal, the parties would file the settlement before the tribunal and the tribunal would make the award in accordance with the settlement.
In the State of Bihar vs D. N. Ganguly (1), dealing with an argument urged before this Court that where a settlment has been arrived at between the parties, village an industrial dispute is pending before a tribunal, the only remedy for giving effect to such a settlement would be to cancel the reference, this Court observed that though the Act did not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of O. XXIII, r. 3 of ' the Code of Civil Procedure, it would be very unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties, and there can be no doubt that if a dispute before a tribunal is ambicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties.
In that case this Court dealt with what would happen if a settlement was arrived at while the matter was pending before the tribunal.
The difficulty arises in the present case because the proceedings before the tribunal had come to an end, and the tribunal had sent its award to Government before the settlement was arrived at on October 1, 1957.
There is no provision in the Act dealing with such a situation ' just as there was no provision in the Act dealing with the situation which arose where the parties came (1) ; 455 to an agreement while the dispute was pending before the tribunal.
This Court held in Ganguly 's case (1), that in such a situation the settlement or compromise would have to be filed before the tribunal and the tribunal would make an award thereupon in accordance with the settlement.
Difficulty, however, arises when the matter has gone beyond the purview of the tribunal as in the present case.
That difficulty in our opinion has to be resolved in order to avoid possible conflict between section 18 (1 ) which makes the settlement arrived at between the parties otherwise than in the course of conciliation proceeding binding on the parties and the terms of an award which are binding under section 18 (3) on publication and which may not be the same as the terms of the settlement binding under section 18 (1).
The only way in our view to resolve the possible conflict which would arise between a settlement which is binding under section 18 (1) and an award which may become binding under section 18 (3) on publication is to withhold the publication of the award once the Government has been informed jointly by the parties that a settlement binding under section 18 (1) has been arrived at.
It is true that section 17 (1) is mandatory and ordinarily the Government has to publish an award sent to it by the tribunal ; but where a situation like the one in the present cases arises which may lead to a conflict between a settlement under section 18 (1) and an award binding under section IS (3) on publication, the only solution is to withhold the award from publication.
This would not in our opinion in any way affect the mandatory nature of the provision in section 17 (1), for the Government would ordinarily have to publish the award but for the special situation arising in such cases.
The matter may be looked at in another way The reference to the tribunal is for the purpose of resolving the dispute that may have arisen between employers and their workmen.
Where a settlement (1) ; 456 is arrived at between the parties to a dispute before the tribunal after the award has been submitted to Government butbefore its publication, there is in fact no dispute left to be resolved by the publication of the award.
In such a case, the award sent to Government mayvery well be considered to have become infructuous and so the Government should refrain from publishing Such an award because no dispute ramains to be resolved by it.
It is however urged that the view we have taken may create a difficulty inasmuch as it is possible for one party or the other to represent to the Government that the settlement has been arrived at as a result of fraud, misrepresentation or undue influence or that it is not binding as the workmen 's representative had bartered away their interests for personal considerations.
This difficulty, if it is a diffi culty, will always be there even in a case where a settlement has been arrived at ordinarily between the parties and is binding under section 18 (1), even though no dispute has been referred in that connection to a tribunal.
Ordinarily, however, such difficulty should not arise at all, if we read sections 2 (p), 18 (1) and 19 (1) of the Act together.
Section 2 (p) lays down what a settlement is and it includes "a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate govern ment and the conciliation officer".
Therefore the settlement has to be signed in the manner prescribed by the rules and a copy of it has to be sent to the Government and the conciliation officer.
This should ordinarily ensure that the agreement has been arrived at without any of those defects to which we have referred above, if it is in accordance with the rules.
Then section 18 (1) provides that such a settlement would be binding between the parties and vs 19 (1) provides 457 that it shall come into force on the date it was signed or on the date on which it says that it shall come into force.
Therefore as soon ' as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the conciliation officer it becomes binding at once on the parties to it and comes into operation on the date it is signed or on the date which might be mentioned in it for its coming into operation.
In such a case there is no scope for any inquiry by Government as to the bona fide character of the settlement which becomes binding and comes into operation once it is signed in the manner provided in the rules and a copy is sent to the Government and the conciliation officer.
The settlement having thus become binding and in many cases having already come into operation, there is no scope for any inquiry by the Government as to the bona fides of the settlement.
In such a case in view of the possibility of conflict between the settlement in view of its binding nature under section 18 (1) and an award which might become binding on publication under section 18 (3), the proper course for the Government is to withhold the award from publication to avoid this conflict.
If any dispute of the nature referred to above arises as to a. settlement, that would be another industrial dispute, which the Government may refer for adjudication and if on such an adjudication the settlement is found not to be binding under section 18 (1) of the Act it will always be open to the Government then to publish the award which it had withheld, though we do not think that such instances are likely to be anything but extremely rare.
We are therefore of opinion that though section 17 (1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires reconciliation between section 18 (1) and section t8 (3), and in such a situation the only way to reconcile the two provisions is to withhold the publication of the award, as a binding 458 settlement has already come into force in order to avoid possible conflict between a binding settlement under section 18 (1) and a binding award under section 18 (3).
In such a situation we are of opinion that the Government ought not to publish the award under section 17 (1) and in cases where government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under section 18 (1) with respect to the very matters which were the subject matter of adjudication under the award.
We therefore allow the appeals and direct the Government not to publish the awards sent to it by the industrial tribunal in these cases in view of the binding nature of the settlements arrived at between the parties under section 18 (1) of the Act.
In the circumstances we order the parties to bear their own costs.
Appeals allowed.
[/INST]The facts of the three appeals are similar and the questions of law involved are identical.
Industrial disputes having arisen between the appellants and their workmen the disputes were referred for adjudication.
After the Tribunal forwarded their Awards to the Government the parties in each dispute came to settlement.
Thereafter letters were sent to the Government requesting them to withhold the publication of the Awards.
The Government replied that under section 17 of the Act it was mandatory for the Government to publish the Awards and they could not withhold publication.
Thereupon writ petitions were filed before the High Court under article 226 of the Constitution praying that the Government might be directed to withhold the publication.
The High Court held that since the provisions of section 17 of the Act were mandatory it was not open to the High Court to issue writs as prayed for and rejected, the petitions.
The present appeals are by way of certificate granted by the High Court.
The main contentions in the appeals were that the provisions of section 17 were not mandatory but were only directory and in the alternative that even if they were mandatory some via media had to be found in view of the conflict that would arise between an award published under section 17 (1) and a settlement which was binding under section 18 (1) and therefore where there was a settlement which was binding under section 18 (1) it would be open to the Government not to publish the award.
It was con.
tended on behalf of the respondent that if the argument of the appellants was accepted it would create a difficult situation in as much as it would be possible for one party or the other to represent to the Government that the settlement had been arrived at 449 as a result of fraud, misrepresentation or undue influence and corruption etc.
Held, that it is clear on a reading of section 17 and section 17A together that the intention behind section 17 (1) is that a duty is cast on Government to publish the award within thirty days of its receipt and the provision for its publication is mandatory and not merely directory.
When an agreement at has been arrived at between the parties, though not in the course course of conciliation proceedings, it becomes a settlement as per the definition under section 2 (p) and section 18 (1) lays down that such a Settlement shall be binding on all the parties to it.
If a situation like the one in the present case arises which may lead to a conflict between a settlement under section 18 (1) and an award binding under section 18 (3) on publication, the only solution is to withhold the award from publication.
This would not in any way affect the mandatory nature of the provisions in section 17 (1) for the Government would ordinarily have to publish the award but for the special situation arising in such cases.
If any dispute arises as to the binding nature of the settlement on grounds of fraud or misrepresentation etc.
that would be another industrial dispute, which the Government may refer for adjudication and if such a settlement is found not to be binding under section 18 (1) of the Act it will always be open to the Government to publish the Award which it had withheld.
State of Bihar vs D. N. Ganguly, ; , referred to.
</s>
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<s>[INST] Summarize the judgementivil Appeal Nos.
4094 & 4095 of 1991.
418 From the Judgment and Order dated 6.3.1991 of the Rajas than High Court in D.B. Civil Special Appeal (Writ) Nos.
48 & 50 of 1990.
P.P. Rao, M.K. Ramamurthi, S.K. Singh, Sudhanshu Atreya, Sushil Kumar Jain, Ms. Bina Gupta, Manoj Swarup, Miss. Lalita Kohli, R.F. Nariman and Mrs. Binu Tamta for the appearing parties.
The Judgment of the Court was delivered by KASLIWAL, J.
Special Leaves granted.
Briefly stated the facts are that University of Rajas than invited applications for the post of Professor in the department of Botany.
The Selection Committee constituted under Sec.
5 of the Rajasthan University Teachers and Offi cers (Selection for appointment) Act of 1974 (herein after referred to as the 'Act of 1974 ') held interviews on 20th June, 1989 and selected Dr. G.S. Nathawat for the post of Professor in Botany.
The name of Dr. Urea Kant was mentioned in the reserve list by the Selection Committee.
The syndi cate of the University approved the list and appointed Dr. Nathawat on the said post.
Dr. Nathawat retired on 30th September, 1989 and Dr. Urea Kant who was already selected and kept in the reserve list was appointed as Professor in the department of Botany.
Dr. Bhikalal, Dr. Shiv Sharma, Dr. Sudhakar Mishra and Dr. T.N. Bhardwaj who were not selected filed a writ petition in the High Court initially challeng ing the appointment of Dr. Nathawat on the ground that the Selection Committee was not constituted in accordance with law and objection was also raised that once a selected person joins the post, the reserve list exhausted itself.
Dr. Bhikalal and others subsequently impleaded Dr. Uma Kant also as one of the respondents in the writ petition.
The respondents, in their reply to the writ petition, submitted that the selection committee was properly constituted.
The appointment of Dr. Uma Kant was rightly made as the life of the reserve list was initially for six months and subse quently extended to one year by a resolution of the Syndi cate dated 3.12.1983.
Learned Single Judge held that the constitution of the Selection Committee was valid but as regards the appointment of Dr. Urea Kant from the reserve list it was held that once a person selected by the Selec tion Committee had been appointed the reserve list stood exhausted and the person named in the reserve list could not be appointed against a future vacancy.
The appointment of Dr. Urea Kant was held illegal and it was directed that Dr. Uma Kant be removed from the said post of Professor of Botany.
Both Dr. Uma Kant as well as the University of Rajasthan tiled special appeal before/he Division Bench.
The Division Bench of the High Court by a common order dated March 6, 1991 upheld the order of 419 the Learned Single Judge and dismissed the appeals.
The Division Bench after considering Sections 3, 5 and 6 of the Act of 1974 held that the purpose of preparation of the reserve list seems to be that if the person selected at No. 1 does not join then the next man in the reserve list should be appointed.
But if the person selected by the Selection Committee is given appointment and he joins, then, selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
It was also held that once a person selected by the Selection Committee has joined, that post is filled and some vacancy is caused thereafter a fresh and de novo selection committee 'procedure has to be started because that will be a case of future vacancy aris ing after the post had been filled up on the recommendations of the Selection Committee.
Aggrieved against the order of the Division Bench of the High Court, Dr. Uma Kant as well as the University have come in appeal by grant of special leave.
In order to appreciate the controversy we would advert to certain relevant provisions of the Act of 1974.
Relevant provisions of Sections 3, 5 and 6 are as follows: .LM15 Section 3 Restrictions on appointments of teachers and officers: (1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any Univer sity in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Sec.
(2) Save as otherwise provided in sub section
(3), every appointment of a teacher or of an offi cer in any University made in contravention of sub section
(1) shall be null and void.
Section 5 Constitution of Selection Committee (1) For every selection of a teacher or of an officer in a University, there shall be con stituted a committee consisting of the follow ing: (i) Vice Chancellor of the University con cerned, who shall be the Chairman of the Committee; (ii) an eminent educationist to be nominated by the Chancellor for a period of one year; 420 (iii) an eminent educationist to be nominated by the State Government for a period of one year; (iv) One member of the Syndicate to be nomi nated by the State Government for a period of one year; and (v) such other persons as members specified in column 2 of the Schedule for the selection of the teachers and officers mentioned in column 1 thereof.
Section 6 Procedure of Selection Committee (1) The quorum required for the meeting of a selection committee constituted under Section 5 shall not be less than five, out of which at least two shall be the experts, if the selec tion to be made is for the post of a lecturer or any other post of a teacher equivalent thereto.
The quorum required for the meeting of a selection committee for the selection of non teaching posts shall be not less than one half of the number of members of the Selection Committee, out of which at least one shall be an expert.
(2) The selection committee shall make its recommendations to the Syndicate, if the Syndicate disapproves the recommendations of the selection committee, the Vice Chancellor of the University concerned shall submit such recommendations alongwith reasons for disap proval given by the syndicate to the Chancel lor for his consideration and the decision of the Chancellor thereon shall be final.
(3) Every selection committee shall be bound by the qualifications laid down in the rele vant law of the University concerned for the post of a teacher, as the case may be, of an officer.
(4) The Selection Committee while making its recommendations to the Syndicate under sub section (2) shall prepare a list of candidates selection by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacan cies in the post of teachers or officers for which the selection committee was constituted under sub section (1) of Section 5 and shall forward the main list and the reserve list alongwith its recommendations to the Syndi cate.
421 Initially the reserve list was to remain valid upto six months from the date of approval of the Syndicate as per the resolution of the Syndicate dated 10th July, 1978 and subse quently the Syndicate by its resolution passed in its spe cial meeting on 3.12.1983 decided that the reserve list recommended by the Selection Committee for selection of employee be treated valid for one year instead of six months.
According to the University this was done in order to curtail the ad hoc appointments and also because the regular selections take a lot of time.
It may also be noted that the Syndicate in its meeting held on 10th July, 1978 had resolved as under: i. Every Selection Committee may draw a Re serve List of suitable candidates upto a number not exceeding 50% of the number of post for which vacancies exist (part vacancy be rounded or to the next whole number) and place them in order of priority.
The Reserve List of drawn be treated valid upto six months the date of approval by the Syndicate of the recommendations of the selec tion committee(s).
On the vacancies caused within the cadre during six months of the approval of the recommendations, the candidates found suitable and placed in the reserve list be appointed in the order of priority given by the Selection Committee.
As already mentioned above the period of ' six months was subsequently extended to one year by resolution dated 3.12.1983.
The University has taken a categorical stand that since 1978 not only in the University of Rajasthan but all other universities in the State of Rajasthan reserve lists are prepared and appointments are being made from the re serve list against future vacancies arising on account of resignation, retirement or promotion.
A long list of ap pointments made from reserve list in various departments of the University of Rajasthan from time to time after joining of the persons from the main list from 1978 to 1990 have been furnished by the appellants before this court by an additional affidavit.
It has also been stated that even out of the petitioners who had filed the writ petition, Dr. T.N. Bhardwaj himself was kept in the reserve list and was there after appointed on the post of reader having fallen .vacant subsequently on account of the promotion of Dr. P. Khanna as Professor.
Section 3 (1) of the Act of 1974 puts a restriction that no teacher in any university in Rajasthan shall be appointed except on the recommenda 422 tions of the Selection Committee constituted under Sec.
5 (1), and, under Sec.
3(2) any appointment made in contraven tion of sub section (1) of sec.
3 shall be null and void.
In the present case Dr. Uma Kant was recommended by the Selection Committee constituted under Section only provides for the constitution of Selection Committee.
The High Court has found that there was no violation of Section 5 in the Constitution of the Selection Committee and the said finding has not been challenged before us on behalf of the respondents.
Section 6 provides for the procedure of Selection Committee and sub section (4) of Section 6 clearly provides that the Selection Committee shall prepare a list of candidates selected by it in order of merit and shall further prepare reserve list in the same order and to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
The Syndicate in its Resolution dated 10th July, 1978 had resolved that the reserve list recommended by the Selection Committee shall be valid upto six months from the date of the approval of the Syndicate which was subsequently extend ed to one year instead of six months in a resolution passed on 3.12.1983.
In our view the High Court was wrong in taking the view that a regular vacancy of Professor having arisen on the retirement of Dr. G.S. Nathawat on 30th September, 1989 again a fresh Selection Committee should have been constituted and no appointment on such post could have been made from the reserve list prepared by the Selection Commit tee on 20th June, 1989.
Section 6(4) clearly provided for the preparation of reserve list to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
It is not in dispute that the main list and the reserve list prepared by the Selection Committee on 20th June, 1989 were approved by the Syndicate.
We agree with the contention of the university that a reserve list is always prepared to meet the contin gency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise.
This is done in view of the fact that it takes a long time in con stituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appointments keeping in view the interest of the student community.
The Selection Committee in the present case was constituted for the selec tion of Professor in Botany and such Selection Committee had approved and recommended the name of the appellant Dr. Urea Kant in the reserve list finding him suitable for appoint ment on the post of Professor in Botany.
The Syndicate which is the highest executive body in the university had also approved the name of Dr. Uma Kant in the reserve list which remained valid upto one year and we cannot accept the con tention raised on behalf of the respondents that the reserve list is exhausted as soon as the person recommended in the main list joined the post.
In the present case Dr. G.S. Nathawat was selected on 423 20th June, 1989 and was going to retire on 30th September, 1989 and in these circumstances it was perfectly valid to select one more person and to keep him in the reserve list for being appointed on the regular vacancy which was shortly anticipated on account of retirement of Dr. Nathawat.
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selec tion was made and which according to the High Court could only be available to the incumbent in the reserve list if the person recommended in the main list did not join such post.
Such interpretation is not borne out from any of the provisions of Section 3(1), Section 5 or sub section
(4) of Section 6 of the Act of 1974.
The High Court took the view that the expression 'appointment ' in sub sec.
(1) of Sec.
3 shall mean appointed initially.
Then, sub sec.
(1) of Sec.
5 provides that for every selection of a teacher in universi ty, there shall be constituted a Committee consisting of persons mentioned therein.
The High Court held that the words "for every selection" are very pertinent and when read with Sec.
3(1) and 3(2), it only means that whenever there is a regular vacancy for a post, a Selection Committee has to be constituted.
When Dr. G.S. Nathawat retired on 30th September, 1989, a regular vacancy arose and therefore a Selection Committee should have been constituted afresh.
In our view the High Court was wrong in taking the aforesaid view.
5 only provides for the constitution of Selection Committee and the words "for every selection" used in sub sec.
(1) of Sec. 5 only mean that in case of every selection of a teacher or of an officer in university, a Committee would be constituted of the persons mentioned in sub clause (i) to (v) of the said Section.
So far as the present case is concerned, even the High Court has arrived to the conclusion that the Committee constituted for the selection of a professor in Botany was proper and in accord ance with the provisions of Sec. 5 of the Act of 1974.
The appellant, Dr. Uma Kant was found suitable for the post of professor in Botany and his name was recommended in the reserve list by the duly constituted Selection Committee.
6(4) of the Act of 1974 clearly provides that the Selection Committee while making its recommendations to the syndicate under sub sec.
(2) shall prepare a list of candi dates selected by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacancies for the post of teachers or offi cers.
Thus a reading of Sec. 5 with Sec.
6(4) makes it quite clear that the Selection Committee constituted shall recom mend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50% of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any 424 vacancy is caused during the validity period of the reserve list.
The suitability of the persons kept in the reserve list is also adjudged by the Selection Committee which is constituted for selection of a teacher in the university.
Thus no fault can be found that the incumbent recommended in the reserve list by the Selection Committee was not selected for the concerned post of teacher.
In our view the very purpose of preparing a reserve list would be defeated if the view taken by the High Court is accepted that once a person selected by the selection committee has joined that post then selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
There was no meaning or purpose of keeping the reserve list alive for a long period of one year, as no person selected for the post can at all be expected not to join for such a long period of one year.
If we examine the matter from another angle, it would be clear that according to the university such a procedure is in vogue in all the universities of Rajasthan that a reserve list is used for the appointment on a vacant post caused during the validity period of the reserve list, and numerous appointments had been made in the last decade from the reserve list.
The university has also submitted that if the view taken by the High Court is held to be correct, it will create chaotic situation in the university as all appoint ments so far made from the reserve list will become assail able.
It is well settled that in matters relating to educa tional institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.
In the result, we allow these appeals, set aside the impugned Judgment of the High Court and hold the selection and appointment of the appellant, Dr. Urea Kant as valid on the post of Professor in Botany in the University of Rajas than.
T.N.A Appeals allowed.
[/INST]One Smt. 'M ' inherited from her husband certain agri cultural lands.
Some of the lands were under mortgage and in the possession of defendants 2 to 6.
She died intestate after the came into force.
As there was no heir entitled to succeed to her property, mutation was sanctioned in favour of the State.
The grandson of her brother claiming to be her legal heir filed a suit for possession of the property and for a declaration that he was entitled to redeem the mortgaged property from defend ants 2 to 6. 'The suit was resisted by the First Defendant, viz. the State on the ground that the intestate had left no heir to succeed and the mutation effected in favour of the State was valid.
Defendants 2 to 6 contended that the right to redeem the mortgage had extinguished, and they have become the owners of the property as they were in possession for more than sixty years.
The Trial Court dismissed the suit holding that the plaintiff was not entitled to succeed to the property of the deceased since the property was inherited from her husband.
As regards the mortgage, it was left open to be decided later as agreed to by the parties.
Plaintiff preferred an appeal and the District Judge dismissed the same.
On a second appeal preferred by him, the High Court decreed the 459 suit for possession even against defendants 2 to 6.
The State as well as the defendants 2 to 6 have preferred the present appeals by special leave.
The appellant State contended that the plaintiff Re spondent was not a qualified heir under the and hence it was a case of failure of heirs resulting in the devolution of estate on the Government.
The other appel lants (Defendants 2 to 6) contended that the High Court ought not have decreed the suit against them since the plaintiff Respondent 's right to redeem the mortgage was not adjudged by the trial court and by agreement the question was expressly left open.
Dismissing the appeal preferred by the State and allow ing the appeal of defendants 2 to 6, this Court, HELD: 1.
The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property.
The property shall devolve on the Government and the Government shall take the property sub ject to all the obligations and liabilities of the property.
It is only in the event of the deceased leaving behind no heir to succeed, the State steps in to take the property.
The State does not take the property as a rival or preferen tial heir of the deceased but as the Lord paramount of the whole soil of the country.
[464 B,C] 2.
Section 29 of the shall not operate in favour of the State if there is any other heir of the intestate.
Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure ' of heirs means the total absence of heirs to the intestate.
A female Hindu being the full owner of the property becomes a fresh stock of descend.
If she leaves behind any heir either under sub section (1) or under sub section (2) of Section 15, her property cannot be escheated.
[464 E,F] Halsbury 's Laws of England, 4th Edn.
17 para 1439; referred to.
Sub Section (2) of Section 15, intended only to change the order of succession specified under sub section (1) and not to eliminate the other classes of heirs.
Section 15(2) came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament.
The report of the Joint Committee which was accepted by Parliament indicates that this sub section was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands to per sons to whom justice would 460 demand that they should not pass.
That means the property should go in the first instance to the heirs of the husband or to the source from where it came.
[464 F, H, 465 C] 3.2.
Sub section (2)(b) of Section 15 emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section (1) in the order specified thereunder but upon heirs of the husband.
The object is not to eliminate the other heirs under sub sectiOn (1) and not to exclude them from inheritance altogether.
There is no justice in such a construction of Section 15.
The Parliament could not have intended that result.
[465 F G.] Bhajya vs Gopikabai and Anr, ; , referred to.
</s>
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<s>[INST] Summarize the judgementCivil Appeal Nos.
1806 1808 of 1969.
From the Judgment and Order dated 30 5 1969 of the Punjab and Haryana High Court in Executive Second Appeals Nos.
1131 1133 of 1968.
H.K. Puri and V.K. Bahl for the Appellant.
Janardhan Sharma and Jitendra Sharma for the Respondent The Judgment of the Court was delivered by DESAI, J.
These appeals by certificate under Article 133(1) (c) of the Constitution granted by the High Court of Punjab & Haryana arise from three Execution Petitions filed by the present appellants for executing three decrees obtained by one Neki (since deceased) in three 224 suits bearing Nos. 313, 360 and 369 of 1961 filed by him for pre emption, to recover physical possession of the lands involved in the suits.
The decrees in favour of Neki were confirmed finally by this Court in Civil Appeals Nos.
1148, 1656 and 2341 of 1966 decided on 25th January 1968.
The Judgment of this Court is reported in Hazari & Ors.
vs Neki & Ors.(1) The facts which ultimately resulted in decrees for pre emption in favour of Neki are fully set out at pages 834 835 of the reported judgment and repeating the same would merely add to the length of this judgment.
Suffice to state that there is no dispute that decrees for pre emption were passed in favour of Neki against the original vendor Dhara Singh and his vendees Hazari and others and the satisfaction of the condition in the decrees of pre emption for payment or deposit of the amounts as directed by the Court within the stipulated time is not questioned in the present proceedings.
It appears that the trial court decreed the suits for pre emption in favour of Neki on 7th November 1962 simultaneously imposing the condition to deposit certain amounts in the three suits by or before 3rd December 1962.
The various amounts were duly deposited in the three decrees by Neki, the decree holder, on 3rd December 1962.
Soon thereafter, on 5th December 1962 Neki sold the lands in respect of which he got the decrees to Zila Singh and others, the present appellants.
The present appellants are subsequent vendees but they will be referred to as the appellants in this judgment.
The former vendees would be referred to as 'first vendees ', the sale in whose favour gave rise to the cause of action for pre emption in favour of Neki against the original vendor Dhara Singh.
After the sale in favour of the present appellants, they applied to be joined as parties to the appeals preferred by the first vendees against the decrees for pre emption which were then pending in the High Court and the Court directed by its order dated 13th July, 1963 that the present appellants be joined as parties to the appeals subject to just legal exceptions.
The appellants then filed Execution Applications Nos. 295, 296, 297/64 seeking to execute the decrees to recover actual possession of the lands purchased by them from Neki.
Original Vendor Dhara Singh and the first vendees filed their objections challenging the right of the present vendees to execute the decrees.
Principal contention raised was that the sale deed of lands in favour of the appellants did not envisage assignment of the decrees and that the right of pre emption being a personal right, the decrees could not be assigned and, therefore, the present appellants who were subsequent vendees from pre emptor Neki, were not entitled and had no locus standi to execute 225 the decrees granted in favour of Neki.
The executing court after examining the relevant provisions contained in section 47 and Order XXI, Rule 16, of the Code of Civil Procedure rejected the objections raised by the first vendees and held that the present appellants were entitled to execute the decrees and directed warrant for possession to be issued.
The first vendees preferred three appeals being Nos.
25/14, 26/14 and 27/14 of 1968 to the District Court at Rohtak.
The learned Additional District Judge who heard these appeals, by a common order rejected the appeals and confirmed the order of the trial Court observing that the pre emptor having deposited the purchase price as directed by the Court, in accordance with the terms of the decrees, his title to the lands was perfected from the date of deposit as provided in Order XX, Rule 14 (1)(b), C.P.C., the appellants as purchasers of lands from the pre emptor in whose favour the decrees for pre emption including the one for possession had become final, were entitled to recover possession under section 146 C.P.C. Hazari, Amar Singh and Bhan Singh the first vendees preferred three Execution Second Appeals Nos.
1131,1132 and 1133/68 to the High Court of Punjab & Haryana.
When these appeals came up before a learned single Judge of the High Court it was contended that in view of the decision in Ram Singh & Ors.
vs Gainda Ram & Ors, The assignee of a holder of a decree for pre emption cannot seek the assistance of the Court for executing the decree for pre emption because the decree is a personal one and, therefore, non assignable.
On behalf of the present appellants who were respondents before the High Court, reliance was placed on the decision in Satyanarayana vs Arun Naik and Ravi Parkash and Anr.
vs Chunilal & Ors.
The learned single Judge had certain reservations about the correctness of the decision in Ram Singh 's case and, therefore, he considered it prudent to refer the matter to a Division Bench.
The matter ultimately had to be referred to a Full Bench because there was another decision in Mehrkhan and Shah Din vs Ghulam Rasul, which also required reconsideration.
That is how the matter came before a Full Bench.
The Full Bench formulated the question for its consideration as under: "Whether the purchaser of land from a pre emptor of which the pre emptor has become the owner in pursuance of a pre emption decree after complying with the 226 provisions of Order XX, Rule 14 Civil Procedure Code could execute the decree in order to obtain possession of the land purchased by him.
" All the three Judges of the Full Bench wrote separate opinions.
D. K. Mahajan, J. was of the opinion that assuming that a decree of pre emption is a personal decree, the transferees of the land from the pre emptor whose title was perfected by deposit as envisaged in O. XX, Rule 14 (1) (b) were entitled to execute the decree granted by the Court in favour of the pre emptor and can seek assistance of the Court for recovering actual possession from the first vendees who had no right to continue in possession, apart from O. XX, Rule 16 under section 146 C.P.C. P. C. Pandit, J. and H. R. Sodhi, J., the other two members of the Full Bench were of the opinion that the right of pre emption being a personal right, a decree for pre emption will be a personal decree and is not assignable and even if title to the land passed to the vendees who purchased the land from the pre emptor after the pre emptor complied with the provisions contained in Order XX, Rule 14 yet they would not be entitled to execute the decree for possession because decree is not assigned and section 146 would not help the present appellants.
In accordance with this majority opinion, the appeals preferred by the first vendees were allowed and the applications for execution filed by the present appellants were dismissed.
The High Court granted a certificate under Article 133 (1) (c) of the Constitution because in its opinion the question involved in the appeals was of considerable importance and was likely to arise frequently and that it deserved to be decided finally by the Supreme Court.
Mr. Janardan Sharma, learned counsel for the respondents urged that looking to the scheme of sections 4, 6 and 15 of the Punjab Pre emption Act, 1930, it is incontrovertible that foundation of the right of pre emption being close personal relationship, it is a personal right and can be exercised only by the person in whom it vests under the law and if in exercise of such right such a qualified person seeks to pre empt a sale by instituting an action in a Court of law, the resultant decree would be a personal decree.
Urged Mr. Sharma further that if the decree is a personal one, obviously it cannot be assigned and the assignee gets no interest in a decree so as to enable him to execute the decree.
The question whether the right of pre emption conferred by the provisions of Punjab Pre emption Act, 1913, is a personal right or it creates an interest in the property is 227 no more res integra and is concluded by a decision of this Court between the very parties who are parties to the present appeals, in an earlier round of litigation wherein the first vendees, the present respondents had challenged the right of Neki deceased pre emptor to obtain a decree for pre emption.
Apart from the fact that the point is concluded by a decision of a Bench of three Judges of the Court, it is inter partes and, therefore, binding on the respondents whom Mr. Janardan Sharma represents and at the instance of the respondents it cannot be re opened or re examined.
As the matter calls for no examination at the hands of the Court it would suffice to quote what has been held in Hazari & Ors.
vs Neki & Ors.
Ramaswami, J. speaking for the Court, observed as under: "In support of these appeals, learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre emption.
The argument was that the statutory right of pre emption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of the legal representatives as representing the estate of Neki.
We are unable to accept the argument put forward by the appellants.
It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same.
It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land.
The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner 's right of sale and compels him to sell the property to the person entitled to pre emption under the statute.
In other words, the statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre empt." Mr. Janardan Sharma, however, sought to distinguish the position under a voluntary inter vivos transfer and an involuntary 228 transfer such as by way of inheritance and urged that in this case Neki having sold the lands to the present appellants by sale inter vivos they cannot enjoy the fruits of the decree.
This distinction is immaterial as far as the present case is concerned because the question in terms disposed of by the Court is that Neki having complied with Order XX, Rule 14, had become the owner of the lands and his legal representatives on his death were rightly substituted in the proceedings.
The contention, therefore, that decree in a suit for pre emption is a personal decree and creates no interest in land, the subject matter of pre emption, must accordingly fail.
The next contention is that the deed evidencing the sale of lands Ext.
D 1 dated 15th February, 1963 merely transferred the lands but does not purport to assign the decree, then in the absence of such an assignment the purported assignee cannot execute the decree in view of the provision contained in Order XXI, Rule 16, and therefore, the execution applications at the instance of the present appellants are not maintainable.
The Additional District Judge did not decide the contention whether the Execution Applications at the instance of the present appellants, namely, subsequent transferees were maintainable under O. XXI, Rule 16, because in his opinion the present appellants were entitled to execute the decree under section 146 of the Code of Civil Procedure.
The majority view of the High Court is that the subsequent transferees, the present appellants, were not entitled to execute the decree under O. XXI, Rule 16 because the decree for pre emption being a personal one cannot be assigned and alternatively if it could be assigned, as a matter of fact, it has not been assigned and therefore the applications for execution at their instance are not maintainable.
They were further of the view that section 146 would not assist the appellants as provisions contained in O. XXI, Rule 16 being a specific contrary provisions, section 146 cannot be invoked.
Order XXI, Rule 16 permits an execution of a decree at the instance of an assignee by transfer of a decree, the assignment may be in writing or by operation of law and if such an application is made, the court to which an application is made shall issue a notice to the transferor of the decree and the judgment debtor and the decree cannot be executed until the Court heard their objections, if any, to its execution.
Section 47 C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.
Explanation appended to 229 section 47 provides that for the purposes of that section amongst others a purchaser at a sale in execution of the decree is deemed to be a party to the suit.
It would have been interesting to examine the question whether the purchaser of land from a pre emptor in whose favour a decree for pre emption has been passed and who subsequent to the decree complied with the requirement of Order XX, Rule 14 and thereby perfected his title would be, on the analogy of a purchaser at a sale in execution of a decree, a party to the suit or at any rate the representative of the decree holder or a successor in interest of the decree holder, but as we are of the opinion that the applications for execution filed by the present appellants are maintainable under section 146 C.P.C. the larger question need not be decided in these appeals.
Section 146 reads as under: "Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." Shorn of unessentials the section provides that where some proceeding could be taken or application could be made by a person under the Code of Civil Procedure any other person claiming under him is entitled to make and maintain such an application.
The limitation on the exercise of this right is to be found in the expression, 'save as otherwise provided by this Code '.
It would mean that if the Code permits a proceeding to be taken or an application to be made by a party, then in the absence of a provision to the contrary, section 146 would enable any one claiming under such person as well to make the same application.
The object behind the section appears to be to facilitate the exercise of right by a person claiming under the person whose right to maintain an application is beyond dispute.
Section 146 came in for consideration in Jugal kishore Saraf vs Raw Cotton Co. Ltd. In that case the facts were that the plaintiffs in a pending suit for recovery of debt transferred to another person all book and other debts due to them including the debt involved in the suit.
The transferees did not apply to be joined as parties in the pending suit and the suit continued in the name of the original plaintiffs and ended in a decree.
Subsequently the 230 transferees as decree holders applied for execution of the decree against the judgment debtor and upon a notice being issued, a contention was raised that the application was not maintainable under Order XXI, Rule 16.
One submission was that even if the application for execution was not maintainable under O. XXI, Rule 16, it would certainly be maintainable at the instance of the transferees of the original debt under section 146.
Accepting this contention Das, J. observed that a person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law.
In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree holder.
It was further held in that case that the transferees of the debt derived their title to the debt by transfer from the transferors and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transferors and accordingly they would be entitled to make an application for execution under section 146 of the Code of Civil Procedure.
Bhagwati, J. in a separate and concurring judgment on this point observed that the only meaning that can be assigned to the expression 'save as otherwise provided by this Code ' in sec.
146 is that if a transferee of the decree can avail himself of the provision contained under Order XXI, Rule 16 by establishing that he is such a transferee he must only avail himself of that provision.
But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of O. XXI, Rule 16 there is nothing in that provision which prohibits him from availing himself of section 146 if the provision of that section can be availed of by him.
It would thus appear that if the sale deed in respect of land on its proper construction would show that the decree itself was assigned obviously the application for execution would be maintainable under O. XXI, Rule 16.
But if the appellants do not fall within the four corners of O. XXI, Rule 16 and they appear not to fall within the four corners of it, because though the land, the subject matter of the decree is sold to appellants, the decree itself is not assigned, they would nonetheless be able to maintain application for execution under section 146 as persons claiming under the decree holder.
The respondents cannot have both the ways.
If the deed evidenced transfer of decree by assignment then O. XXI, Rule 16 would be attracted but if, as it appears, there is no transfer of decree by assignment, the lands having been sold by the decree holder after perfecting his title and purchased by the present appellants they would be persons claiming under the original pre emptor decree holder Neki and if Neki could have made an application for 231 execution of the decree as decree holder, the present appellants, as purchasers of land from Neki would certainly be claiming under Neki and, therefore, their application for execution would certainly be maintainable under section 146.
In this connection it would be advantageous to refer to Smt.
Saila Bala Dassi vs Smt.
Nirmala Sundari Dassi and Another(1) wherein it has been in terms held that section 146 was introduced for the first time in Civil Procedure Code 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment and being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense.
Viewed from this angle the present appellants must succeed because they purchased land from pre emptor Neki and the validity of sale being now beyond dispute, they are persons claiming under Neki whose right to execute the decree was never disputed and, therefore, appellants claiming under the vendor Neki would be able to maintain an application for execution under section 146 of the Code of Civil Procedure.
Appellants are thus entitled to execute the decree for possession.
Accordingly these three appeals are allowed and the decision of the High Court dated 30th May, 1969 in Execution Appeals Nos. 1131, 1132 and 1133 of 1968 is set aside and the decision of the Additional District Judge dated 15th July, 1968 is restored, but in the circumstances of the case there would be no order as to costs.
N.V.K Appeals allowed.
[/INST]The respondent, who originally belonged to the Madras Ministerial Service, was allotted to the State of Kerala as a lower division clerk on the reorganisation of States.
On the ground that he belonged to a community which was educationally backward the State Government of Madras appointed him as a lower division clerk relaxing the requirements of r. 29 of the Special Rules for Madras Ministerial Service which prescribed minimum general educational qualification for appointment to service under the State Government.
In 1957 the State Government of Kerala issued an order providing that, until common service rules were framed, every officer in the service of the new State of Kerala would be bound by the service rules of Travancore Cochin or Madras, to which he belonged prior to November 1, 1956.
Thereafter in supersession of all earlier rules the Kerala State and Subordinate Service Rules, 1958 were framed.
Rule 1 of the General Rules in Part II stated that the rules in that part shall apply to all State and Subordinate Services and the holders of all posts appointed before or after the date on which those rules came into force.
The Special Rules contemplated by r. 2(16) of Part I had however, not been framed.
Rule 28(b) (ii) of Part II provided that all promotions or appointments by transfer [other than those mentioned in cl.
(i) of this rule] shall be made in accordance with the seniority, subject to the person 's fitness for appointment.
In 1961, persons who did not possess the general minimum educational qualifications but were appointed as lower division clerks, were allowed to sit for a qualifying test for promotion to upper division clerks.
In the gradation list of officiating lower division clerks prepared, the respondent was shown at No. 1 place.
Even so, when two vacancies of upper division clerks occurred, two persons junior to him in the gradation list were promoted ignoring the respondent.
In his writ petition under article 226 of the Constitution the respondent contended that the exemption granted to him removing the bar of educational qualification enured to him for all purposes, and therefore, promotions of two juniors, ignoring r. 28(b)(ii) under which seniority was the basis for promotion, amounted to denial of equal treatment guaranteed under articles 14 and 16 of the Constitution.
243 A single Judge of the High Court dismissed the petition on the ground that the exemption granted was for the limited purpose of enabling the respondent to be appointed and continued in the post of lower division clerk but that it did not remove the bar of minimum qualification for promotion.
On appeal the division bench reversed the order of the single Judge, and directed the Government to promote him and determine his rank in the cadre of upper division clerks.
On appeal to this Court it was contended on behalf of the appellant that (1) the Special Rules contemplated by r. 2 of Part I read with the State Government 's order of 1957, were the Special Rules contained in the Madras Ministerial Service Rules; (2) even if r. 28(b)(ii) was applicable it was well within the power of the State Government to prescribe a test to judge the fitness of persons who were exempted from the minimum educational qualifications when appointed as lower division clerks and (3) there was a reasonable basis for classifying those persons who did not possess the minimum educational qualification as a category apart from those who possessed such a qualification.
Dismissing the appeal, ^ HELD: 1 (a) The Special Rules, for the purposes of Kerala Rules of 1958, would be as defined in r. 2(16) of Part I.
That definition contemplated that Special Rules would be framed by the Governor but no such rules had been framed.
[248 H] (b) In the matter of promotion as on upper division clerk the respondent was governed by r. 28(b)(ii) in Part II.
[249 A] 2.
It cannot be said that the impugned notification merely "supplemented" or filled up a gap in the statutory rules.
It tended to superimpose or super add by an executive flat on the statutory rules something inconsistent with the same.
If the statutory rules framed by the Governor or any law enacted under article 309 is silent on any particular point, the government can fill up that gap and supplement the rule by issuing administrative instructions not inconstant with the statutory provisions already framed or enacted.
[253 D; 250 C] In the instant case, however, it could not be said that there was a gap in the statutory provisions in the matter of promotion from the cadre of lower division clerks to that of upper division clerks.
3(a) The classification made by the impugned government order was not only unfair and irrational but also, virtually amounted to abandonment of the test of seniority cum fitness provided in r. 28(b)(ii).
[252 G H] (h) By virtue of section 3 of the Kerala Public Services Act, 1968, the 1958 Rules were deemed to have been made under the Act and were continued until superseded by rules made under that Act.
No Special Rules relating to upper division clerks having been made the General Rules in Part II would be applicable to upper division clerks, also.
[250 E] (c) The 1958 Rules superseded all earlier rules.
The General Rules did not provide any minimum general educational qualification for promotion to 244 the cadre of upper division clerks.
There is nothing in r. 28(b)(ii) or elsewhere, which provides that a lower division clerk would be presumed to be unfit for promotion to upper division unless he possessed the minimum general educational qualification or passed the qualifying test.
[250 G H] There is nothing to show that the respondent was considered for promotion but was found unfit.
[251 B] (d)(i) The impugned notification prescribed the qualifying test for promotion, not for all, but only for one category of persons with reference to the manner in which they initially entered service.
The respondent and others like him, appointed as lower division clerks after granting them exemption, had been singled out for this discriminatory treatment.
[251 F] (d)(ii) There is nothing on record to show that the duties discharged by the clerks of the upper division were substantially different from those in the lower division.
[251 G H] (iii) The statutory rule did not warrant the classification made by the impugned order.
It impinged upon the statutory rule inasmuch as it laid down that even if a lower division clerk who entered service as a result of exemption from possessing minimum educational qualification satisfied the criterion of seniority cum fitness prescribed by this rule, he shall not be considered for promotion unless he qualified in the test.
The relevant rule did not provide any minimum general educational qualification for promotion to upper division.
[252 A B] Roshan Lal Tandon vs Union of India, ; ; followed.
State of Jammu & Kashmir vs Triloki Nath Khosa & Ors. ; ; held inapplicable.
Though ordinarily the court would not issue a direction requiring the government to promote an aggrieved employee and thereafter determine his rank in the cadre, in the peculiar facts of this case the respondent satisfied the two fold criterion for promotion laid down in r. 28(b)(ii) and since the existence of both the criteria for promotion were not in dispute the High Court was justified in issuing the direction, it did.
[253 A B; E]
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<s>[INST] Summarize the judgementAppeal No. 147 of 1951.
Appeal from the Judgment and Decree dated September 4, 1946, of the late Chief Court of Oudh (now the High Court of Judicature at Allahabad, Lucknow Bench) (Misra and Wallford JJ.) in First Civil Appeal No. 139 of 1941, arising out of the Judgment,and Decree dated October 23, 1941, of the Court of the Civil Judge, Bahraich, in Regular Suit No. I of 1941.
234 Onkar Nath Srivastava for the appellant.
Bishan Singh for the respondent.
November 7.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the plaintiff and is directed against a judgment and decree of the Chief Court of Avadh dated September 4, 1946, affirming, on appeal, those of the Civil Judge, Bahraich, passed in Regular Suit No. 1 of 1941.
To appreciate the controversy between the parties to this appeal it would be necessary to state a few facts.
One Raja Bisheshwar Bux Singh, the father of the plaintiff and of the defendant 's husband, was a taluqdar of Oudh, and the estate known as Gangwat Estate, to which he succeeded in 1925 on the death of the widow of the last holder, is one to which the Oudh Estates Act (I of,1869) applies.
Raja Bisheshwar died on 16th October, 1930, leaving behind him two sons, the elder of whom, Bajrang Bahadur, is the plaintiff in the present litigation, while the younger, whose name was Dhuj Singh, has died since then, being survived by his widow Bakhtraj Kuer.
who is the defendant in the suit.
Shortly before his death Raja Bisheshwar executed a will dated 11th September, 1929, by which five properties, described in lists A and B attached to the plaint, were bequeathed to Dhuj Singh, the younger son, by way of making provisions for the maintenance of the said son and his heirs.
On the death of Raja Bisheshwar,the estatement to the plaintiff as his eldest son under the provisions of the Oudh Estates Act and Dhuj Singh got only he five properties mentioned above under the terms of his father 's will.
Dhuj Singh had no issue of his own and on his death in 1940 disputes arose in respect of these properties between the plaintiff on the one land and Dhuj Singh 's widow on the other.
The plaintiff succeeded at first in having his name mutated as owner of these properties in the revenue records in place of his deceased brother, but the appellate 235 revenue authority ultimately set aside this order and directed mutation to be made in the name of the defendant.
The plaintiff thereupon commenced the suit out of which this appeal arises, praying for declaration of his title to the five properties mentioned above on the allegation that they vested in him on the death of Dhuj Singh and that the defendant could not) in law, assert any right to, the same.
It may be stated here that four out of these five properties have been described in list A to the plaint and there is no dispute that they are taluqdari properties.
The fifth item is set out in list B and admittedly this property is not taluqdari in its character.
Besides lists A and B there is a third list, viz., Catached to the plaint, which mentions two other properties as being in possession of the defendant and in the plaint a claim was made on behalf of the plaintiff in respect to these properties as well, although they were not covered by the will of Bisheshwar.
This claim, however, was abandoned in course of the trial and we are not concerned with it in the present appeal.
The plaintiff really rested his case on a two fold ground.
It was averred in the first place that Dhuj Singh hadonly a life interest in the properties bequeathed to him by Bisheshwar and on the termination of his life interest, the property vested in the plaintiff as the heir of the late Raja.
In the alternative the case put forward was that even if Dhuj Singh had an absolute interest created in his favour under the terms of his father 's will, the plaintiff was entitled to succeed to the taluqdari properties at any rate, under the provision of section 14(b) read with section 22 (5) of the Oudh Estates Act.
The defendant in her written statement resisted the plaintiff 's claim primarily on the ground that Bisheshwar Bux Singh, as the full owner of the properties, was competent to dispose of them in any way he liked and under his will it was the defendant and not the plaintiff in whom the properties vested after the death of Dhuj Singh.
The contention, in .
substance, was that the will created a life estate for Dhuj 236 Singh followed by a devise in favour of the widow as his personal heir.
The decision of the point in dispute between the parties thus hinges on the proper construction of the will left by Bisheshwar.
The trial court after an elaborate consideration of the different portions of the will, viewed in the light of surrounding circumstances, came to the conclusion that Dhuj Singh got a life interest in the devised properties but there were similar life estates created in favour of his personal heirs in succession, the ultimate remainder being given to the holder of the estate when the line of personal heirs would become extinct.
The defendant, therefore, was held entitled to the suit properties so long as she was alive and in that view the plaintiff 's suit was dismissed.
Against this decision, the plaintiff took an appeal to the Chief Court of Avadh and the Chief Court affirmed the decision of the trial judge and dismissed the appeal.
The plaintiff has now come, up to this court on the strength of a certificate granted by the High Court of Allahabad with which the Chief Court of Avadh was amalgamated sometime after the disposal of this case.
The learned counsel appearing for the appellant first of all drew our attention to the provisions contained in certain sections of the Oudh Estates Act and it was urged by him on the basis of these provisions that as Dhuj Singh, who got the suit properties under the will of his father, the late.
Taluqdar, came within the category of persons enumerated in clause (1) of section 13 A, Oudh Estates Act, he could, under section 14 of the Act, hold the properties subject to the same conditions and the same rules of succession as were applicable to the, taluqdari himself.
In these circumstances, it is said that the provisions of section 22 (5) of the Act would be attracted to the facts of this case and the plaintiff, as the brother of Dhuj Siugh, would be entitled to succeed to the properties of the latter in preference to his widow.
The argument formulated in this way does not I appear to us to be helpful to the appellant.
Section.
11 237 of the Oudh Estates Act confers very wide powers of disposition upon a taluqdar and he is competent under the section "to transfer the whole or any portion of his estate, or of his right and interest therein, during his lifetime, by sale, exchange, mortgage, lease or gift, and to bequeath by his will to any person the whole or any portion of such estate, and interest.
" Sections 13 and 13 A make certain special provisions in cases of transfers by way of gift and bequest in favour of certain specified persons and lay down the formalities which are to be complied with in such cases.
Section 14 then provides that "if any taluqdar or grantee, or his heir or legatee, shall heretofore have transferred or bequeathed, or if any taluqdar:or grantee, or his heir or legatee shall hereafter transfer or bequeath the whole or any portion of his estate (a) . . . (b) to any of the persons mentioned in clauses (1) and (2) of section.
13 A, the transferee or legatee and his heirs and legatees shall have same rights and powers in regard to the property to which he or they may have become entitled under or by virtue of such transfer or bequest, and shall hold the same subject to the same conditions and to the same rules of succession as the transferor or testator.
" It is true that Dhuj Singh being a younger son of the testator came within the purview of clause (1) of section 13 A of the Oudh Estates Act and if he became full owner of the properties under the will of his father, succession to such properties after his death would certainly be regulated by the special rules of succession laid down in the Oudh Estates Act, and not by the ordinary law of inheritance.
But section 14 would have no application if the disposition by the will did not make Dhuj Singh an absolute owner of the properties and he was given only an interest for life which was followed by subsequent interests created in favour of 31 238 It cannot also be contended that a taluqdar governed by the Oudh Estates Act cannot convey anything less than his absolute proprietary right in a property by transfer inter vivos or by will, or that 'it is not competent for him to create any limited interest or future estate.
Apart from the plenary provision contained in section 11, section 12 of the Act which makes the rule against perpetuity applicable to transfers made by a taluqdar, furnishes a clear indication that the Act does not interdict the creation of future; estates and limitations provided they do not trans gress the perpetuity rule.
The questions, therefore, which require consideration in this case are really two in number.
The first is whether Dhuj Singh got an absolute estate or an estate for life in the properties given to, him by the will of Raja Bisheshwar? If he got an absolute estate, the contention of the appellant should undoubtedly prevail with regard to the taluqdari properties specified in list A of the plaint.
If, on the other hand,, the interest was one which was to inure only for the period of his life, the further question would arise as to whether any subsequent interest was validly created by the will in favour of the widow on the strength of which she can resist the plaintiff 's claim.
If the life estate was created in favour of Dhuj Singh alone, obviously the plaintiff as the heir of the grantor would be entitled to come in as reversioner after his death .
The answers to both the questions would have to be given on a proper construction of the will left by Raja Bisheshwar.
The will has been rightly described by the trial judge as a most inartistic document with no pretension to any precision of language, and apparently it was drawn up by a man who was not acquainted with legal phraseology.
The Civil Judge himself made a translation of the document, dividing its contents into several paragraphs and this was found useful and convenient by the learned Judges of the Chief Court.
The material portions of the will, as translated by the trial judge, may be set out as follows: 239 "As I have become sufficiently old and no reliance can be placed on life, by God 's grace I have got two sons namely, Bajrang Bahadur Singh, the elder, and Dhuj Singh the younger.
After my death the elder son would according to rule, become the Raja, the younger one is simply entitled to maintenance.
Consequently with a view that after my death the younger son and his heirs and successors, generation after generation, may not feel any trouble and that there may not be any quarrel between them.
I have decided after a full consideration that I should execute a will in favour of Dhuj Singh with respect to the villages detailed below.
So that after my death Dhuj Singh may remain in possession of those villages as an absolute owner with the reservation that he will have no right of transfer.
If God forbid, Dhuj Singh may not be living a the time of my death, his son or whoever may be his male heir or widow may remain in possession of the said villages on payment of the Government revenue as an absolute owner.
The liability for the land revenue of the said villages will be with Dhuj Singh and his heirs and successors; the estate will have no concern with it.
Although Dhuj Singh and his heirs are not given: the power of transfer, they will exercise all other rights of absolute ownership that is to say, the result is that the proprietor of the estate or my other heirs and successors will not eject Dhuj Singh or his heirs or successors in any way.
Of course if Dhuj Singh or his heirs become ever heirless then the said villages will not escheat to the Government but will revert and form part of the estate.
Hence with the soundness of my mind without any force or pressure and after having fully under , stood and also having thought it proper I execute this will in favour of Dhuj Singh, my own ;on, with the above mentioned terms.
" 240 The learned counsel for the appellant naturally lays stress upon the words "absolute owner " (Malik kamil) and " 'generation after generation? ' (naslan bad naslan) used in reference to the interest which Dhuj Singh was to, take under the will.
These words, it cannot be, disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to, be conferred.
In all such cases the true intention of the testor has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
"The object of the testator in executing the will clearly set out in the preamble to the document and in spite of the somewhat clumsy drafting that object to have been kept in view by the testator throughout, in making the provisions.
The language and tenor of the document leave no doubt in OUT minds that the dominant intention of the testator was to make provision not for Dhuj Singh alone but for the benefit of his heirs and successors, " generation after generation " as the expression has been used.
The expression " heirs" in this context obviously means and refers to the personal heirs of Dhuj Singh determined according to the, general law of inheritance and not the successors to the estate under the special provisions of the Oudh Estates Act, for paragraph 6 of the will mentioned above is expressly intended to protect the personal heirs of Dhuj Singh from eviction from the properties in question by the future holders of the estate.
Thus the beneficiaries under the will are Dhuj Singh himself and his heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation.
On the total, extinction of this line of heirs the properties affected by the will are to revert to the estate.
As it was the intention of the testator that the properties should 241 remain intact till the line of Dhuj Singh was exhausted and each successor was to enjoy and hold the properties without any power of alienation, obviously what the testator wanted was to create a series of life estates one after another, the ultimate reversion being given to the parent estate when there was a complete failure of heirs.
To what extent such intention could be, given effect to by law is another matter and that we shall consider presently.
But it can be said without hesitation that it was not the intention of the testator to confer anything but a life estate upon Dhuj Singh in respect of the properties covered by the will.
The clause in the will imposing total restraint on alienation is also a pointer in the same direction.
In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground 'of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the Will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik".
We hold, therefore, that the courts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his father 's will.
Of course this by itself gives no comfort to the defendant; she has to establish, in order that she may be able to resist the plaintiff 's claim, that the will created an independent interest in her favour following the death of Dhuj Singh.
As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh.
This, it is contended by the Appellant is not permissible in law and he relies on the case of Tagore vs Tagore(1).
It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of (1) 18 Weekly Report 359.
242 whom are in existence and some are not, it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time of the testator 's death and is invalid as to the rest.
The Widow, who is the next heir of Dhuj Singh, was in existence when the testator died and the life interest created in her favour should certainly take effect.
She thus acquired under the will an interest in the suit properties after the death of her husband, commensurate with the period of her own natural life and the plaintiff consequently has no present right to, possession.
The result, therefore, is that the appeal fails and is dismissed with costs.
Appeal dismissed.
Agent for the appellant Rajinder Narain.
[/INST]Under Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, i.e., a de facto guardian, has no power to convey to another any right or interest in immoveable property which the transferee can enforce against the minor.
The question whether the transaction has resulted in a benefit to the minor is immaterial in such cases.
Where disputes arose relating to succession to the estate of a deceased Mahomedan between his 3 sons, one of whom was a minor, and other relations, and a deed of settle ment embodying an agreement in regard to the distribution of the properties belonging to the estate was executed by and between the parties, the eldest son acting as guardian for and on behalf of the minor son: Held, that the deed was not binding on the minor son as his brother was not his legal guardian; as the deed was void it cannot be held as valid merely because it embodied a family arrangement; and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris.
Imambandi vs Mutsaddi [1918] 45 I.A.73 relied on Mohemed Keramatullah Miah vs Keramatulla (A.I.R. Ameer Hassan vs Md. Ejay Hussain (A.I.R. 1929 Oudh 134) commented upon.
1134 Under Mahomedan law if there was no insurmountable obstacle to a marriage and the man and woman had cohabited with each other continously and for a prolonged period/he presumption of lawful marriage would arise and it would be sufficient to establish a lawful marriage between them.
Khaja Hidayut Oollah vs Rat Jan Khanam (1844, 3 Moo I.A. 295) referred to.
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<s>[INST] Summarize the judgementAppeal No. 1778 of 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated October 3, 1967 of the Bombay High Court, Nagpur Bench in Election Petition No. 14 of 1967.
C.B. Agarwala and A.G. Ratnaparkhi, for the appellant.
R.M. Hazarnavis, B.A. Masodkar, section B. Wad, V.D. Chetande and M.S. Gupta, for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
The appellant is the returned candidate from the Rajura constituency of the Maharashtra State Legislative Assembly in the general election held in February 1967.
In that election he secured 21,435 votes as against 17,521 votes secured by his nearest rival, the first respondent herein, the nominee of the Indian National Congress.
The first respondent was representing that constituency prior to the said general election.
The first respondent challenged the validity of the appellant 's election in Election Petition No. 14 of 1967 in the High Court of Judicature at Bombay (Nagpur Bench) on two grounds namely (1) that the appellant was disqualified to be a candidate in that election and (2) that he was guilty of corrupt practices under section 123(4) of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act).
The High Court allowed the petition and set aside the election of the appellant on the ground that he was guilty of publishing statements of facts which are false and which he either believed to be false or did not believe them to be true, in relation to the personal character and conduct of the first respondent.
It did not uphold the contention of the first respondent that the appellant was disqualified to be a candidate.
768 Though at one stage Mr. Hazarnavis, learned Counsel for the first respondent attempted to support the judgment of the trial court on the ground that the appellant was disqualified to be candid.ate, he finally gave up that contention.
Therefore it is no necessary to examine the same.
The High Court has found that the appellant was responsible for the publication of Exhs.
55 and 56 which ,according to contained statements of facts relating to the personal character and conduct of the first respondent and those statements were either false to his knowledge or at any rate he did not believe them to be true.
It further came to the conclusion that in some of the election meetings the appellant had falsely stated that the first respondent had a share in the contract secured by him for Abid Hussain.
The bulk of the evidence adduced in this case relates to the controversy whether the appellant was responsible for the printing and publication of Exhs.
55 and 56.
The High Court has accepted the case of the first respondent that the appellant was responsible for printing and publishing those pamphlets.
We have been taken through that evidence and we agree with the High Court on that aspect of the case.
It is not necessary to deal with that evidenced as we are of opinion that the statements contained in those pamphlets do not amount to corrupt practice under section 123 (4) of the Act Section 123(4) reads: "The publication by a candidate or his agent or by any other person (with the consent of a candidate or his election agent) of any statement of fact which is false, and which he either believes to be false or does.
not believe to be true in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
" The ingredients of the corrupt practice mentioned in this section are (1 ) the publication by a candidate or his election agent or by any other person with the consent of that candidate or his election agent of any statement of fact; (2) which statement is false and which was believed by the candidate to be false or a any rate was not believed by him to be true; (3) the said statement relate to the personal character or conduct of a candidate on in relation to his candidature or withdrawal and (4) the same being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
As explained by this Court in Sheopat Singh vs Ram Pratap(1) section 123(4) is designed to achieve the dual purpose of protecting (1) ; 769 freedom of speech and prevention of malicious attack on the personal character ,and conduct of rivals.
A statement which reflects on the mental or moral character of a person is one relating to his personal character or conduct whereas any criticism of a person 's political or public activities and policies is outside it.
Section 123 (4)further requires that the candidate who made a false statement should have believed it to be false or did not believe it to be rue and lastly it should be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made.
The word 'calculated ' means designed: it denotes more than mere likelihood and imports a design to affect voters.
The election law in this country as in England guarantees freedom of criticism of political nature at the time of election.
It is true that the freedom of criticism given might be sometime misused.
The political history of even countries like England shows that sensational false election propaganda against a political party, particularly on the eve of election might upset the party 's electoral fortune.
But the advantage gained from free criticism though sometimes it may turn out to be irresponsible in the long run outweighs the disadvantages.
It is in the interest of democracy that such criticism should be allowed.
This is the view of political thinkers.
A political party 's reputation is not built on shifting sands.
It has, at any rate, it should have, firmer foundation and should not be affected by passing winds.
But in the case of individuals a different approach is necessary.
A campaign of slander is likely to create prejudice in the mind of the people against him.
It cannot be put down as cynicism when it is sometimes said that the bigger the lie the greater is the chance of its being accepted as true.
There is unfortunately a tendency in the minds of the unwary public to believe the worst about individuals.
Democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election.
Section 123(4) as we understand it embodies the two principles discussed above.
Every false allegation does not come within the mischief of section 123(4).
When any false allegation of fact pierce the politician and touches the person of the candidate then section 123(4) is contravened.
Dealing with the meaning of the expression 'personal character and conduct ' found in section 123(4) Subba Rao J. speaking for the Court in T.K. Gangi Reddyv.
M.C. Anjaneya Reddy and Ors.(1) observed at p. 266 of the report: "the words 'personal character or conduct ' are so clear that they do not require further elucidation or definition.
The character of a person may ordinarily (1) XXH, E.L.R. p. 266.
770 be equated with his mental or moral nature.
Conduct connotes a person 's actions or behaviour.
" Dealing with a provision similar to section 123(4) Darling J., Cumberland (Cockermouth Division) case(x) observed: "What the Act forbids is this.
You shall not make or publish any false statement of fact in relation to the personal character or conduct of such candidate; if you do, it is an illegal practice.
It is not an offence to say something which may be severe about another person nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate; and I think the Act says that there is a great distinction to be drawn between a false statement of fact which affects the personal character or conduct of a candidate and a false statement of fact which deals with the political position or reputation or action of the candidate.
If that were not kept in mind, this statute would simply have prohibited at election times all sorts of criticism which was not strictly true relating to the political behaviour and opinions of the candidate.
That is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct.
" The language of section 123 (4) is 'any statement of fact which is false ', and that language must be used in contrast to a false statement of opinion.
The language used is not merely a 'false statement ' .but a 'statement of fact which is false '.
The statement in question must be in relation to the personal character or conduct of a candidate, which means a false statement of fact bearing on the personal character or conduct of a candidate.
Further one of the ingredients of the corrupt practice under section 123 (4) is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is made.
It may be noted that the section does not merely say 'being a statement calculated to prejudice the prospects of the candidate 's election ' but on the other hand it says 'being a statement reasonably calculated to prejudice the prospects of that candidate 's election '.
The meaning of that expression is as held by a Division Bench of the Bombay High Court in Dattatraya Narayan Patil vs Dattatraya Krishnaji Khenvikar and Ors.(2) that the publication of false statement of fact relating to the personal character or conduct must be such as would, in the estimation of the Court, having regard to the nature of the publication, the evidence ten (1) (1901) 5, O 'M & H.p.
(2) A.I R. 771 dered in Court and the surrounding circumstances have its natural and probable consequence of prejudicing the prospects of the candidate relating to whose personal character or conduct the publication has been made.
So far as the last limb of section 123(4) is concerned, the emphasis is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed.
It is trite to say that the burden of proving everyone of the ingredients of the corrupt practice alleged is on him who alleges it.
If he fails to establish any one of them to the satisfaction of the Court he must fail.
We shall now proceed to consider whether the statements of facts contained in Exhs.
55 and 56 fall within the mischief of section 123(4).
Before doing so it is necessary to give the background under which the statements complained of were made.
As mentioned earlier the first respondent was representing the constituency in question prior to the general election in 1967.
Sometime before the election the cultivators in the Rajura constituency as in other places were required to deliver to the Government a portion of the juwar crop raised by them in pursuance of the levy orders made.
This circumstance must have undoubtedly caused dissatisfaction to the rooting.
Rajura Taluka was previously a part of the Nizam 's State and thereafter the State of Hyderabad till the formation of the Maharashtra State.
We understand that in that Taluka, the boundary stones had not been fixed.
The State of Maharashtra 'appears to have directed the landowners to fix the necessary boundary stones for their property within a certain period.
As some of them did not comply with that direction, the., Government took upon itself the responsibility of fixing those boundary stones at the cost of those ryots.
That work was given on contract to one Abid Hussain.
It was suggested that charges fixed were excessive.
It may be mentioned at this.
stage that during the time when the juwar levy was imposed and the contract for fixing the boundary stones was given (as also at present ), the Congress Party was in power in the State of Maharashtra.
The first respondent was a Congress M.L.A.
In the past tolls were levied on every vehicle entering the municipal limits of Rajura but some years before the election that levy had been .abolished but the same was again reimposed sometimes before the election At the time of the reimposition of that levy Shri Shankarrao Deshmukh, a Congressman was the Chairman of the Rajura Municipality.
Having mentioned these facts we shall now proceed to examine the statements in Exhts.
55 and 56.
55 is a Marathi poem composed by the appellant 's election agent Dr. Suresh Vishvanathrao Upaganlawer (R.W. 3).
Its English rendering is as follows: 772 "Request to Voters.
Rise Rise Oh Voters Awake at least now Understand and begin to work.
You have suffered for five years, auspicious day has dawned now, truthful to your conscience, wake to vote, Oh brothers wake to vote.
Today kick off (this) slavery in the freedom (and) you should expose; you should expose the sins of Vithalrao.
He held out to be the leader of the people (but) he put burden of stones (on the people) By those very stones (you) build his grave, brothers build his grave.
For recovery of levy (from us) unlimited force used against us.
They take white juwar and give red millow (to us) and now confront him (with this).
Today our luck has dawned (in that) we got a great leader.
For protecting the interests of poor people see this Guruji has taken an Avatar.
(His) name is Jivtode Shrihari, has responded to our immediate call.
By giving your invaluable vote.
To Jivtode and Kaushik Pleader, Elect them this time.
Take vow like Bhishma and begin working today brothers.
begin working today, Seeing Lion Symbol, by affixing rubber stamp on it We will show to the world, Brother we will show our candidates that success garlands (him.)" Exh. 56 is a pamphlet published in Marathi.
It purports to be an appeal by one Ganpat Patil Dhote.
The English translation of it is found at p. 563 565 of.the paper book.
It reads thus: VOTERS BE CAREFUL In the forthcoming General Elections the sitting M.L.A. Shri Vithalrao Dhote is standing for Maharashtra Legislative Assembly on behalf of Congress.
The poor people have had experience of Shri Vithalrao Dhote as M.L.A. 773 Having been elected in the 1St General Elections Shri Vithalrao Dhote would work for the benefit, of the people and develop the backward Rajura Taluka was our expectation.
But the People of Rajura Taluka have been utterly disappointed by Shri Vithalrao Dhote.
In the this Taluka the High School which was there in the times of Nizam the High School is there in whole of Rajura Taluka till to day.
Shri Vithalrao Dhote could not construct a Single Pucca Road.
Could not supply electricity to any village anywhere.
Could not make arrangements for watering agriculture.
In this Taluka though there is thousands of acres of fallow land, for distributing it to landless no effort was made by Shri Vithalrao Dhote.
In the last five years no work for the benefit of the people has been done by Vithalrao Dhote.
On the contrary, through his selfish and fraudulent companion Shri Shankarrao Deshmukh, the Municipal President of Rajura (he got) imposed the stopped toll tax on the bullock cart (Rengi and Bandi) of poor people coming to Rajura.
Its effect has been surely felt by every poor man in the Taluka.
Similarly by fixing boundary stones on the Dhuras of the cultivators in Rajura Taluka and by recovering price of stones Shri Vithalrao Dhote has worked for the benefit of Abid Husain Thekedar alone.
In this taluka the cultivators could not get Taccavi loans without giving bribe at the time of distributing taccavi, Shri Vithalrao Dhote could not check bribery.
Shri Vithalrao Dhote has neglected the poor people by looking to the interests of Thekedar (contractor) alone.
By this, poor people have lost all faith in Shri Vithalrao Dhote in Rajura Taluka.
By this the poor people are very much harassed.
When I myself moved in the villages in this Taluka, I found that public opinion is inclined against Shri Vithalrao Dhote.
People are organised as Shri Vithalrao Dhote has harassed the poorer for furthering interests of his selfish and deceitful companion.
Because of this and with great reluctance and keeping interests of public in view I am publishing this pamphlet against Amdar Vithalrao Dhote to keep the true facts before the public.
The man who is proving dangerous to the majority in the Society and poorer section of the public has to be pulled down from his office (and) except this, there is no other way is ' my belief.
Hence I humbly request the voters in Rajura Constituency that they should not vote for the Congress candi 774 date Shri Vithalrao Dhote.
Contesting candidate from Rajura Constituency Shri Jivatode Guruji has 'worked for spread of Education by opening Janata High Schools.
Shri Jiotode Guruji has benefited the poor people by opening all kinds of colleges of Chanda. "Shri Jiotode Guruji" will bring about the development of backward Rajura Taluka positively.
Hence by putting a cross on the Lion Symbol of Vidarbha Joint Front 's Shri Jiotode Guruji, Shri Jiotode Guruji be elected by a large majority is my humble and earnest request to the voters.
yours humbly Symbol of Lion Ganpat Patil Dhote Put Cross only on Lion.
In small type Publish: Ganpat Patil (Shivshakti of Chote r/o Nimani T. Rajura Chandrapur).
The various statements contained in these two pamphlets are summarised by the learned Trial Judge thus: "(a) (The Petitioner) has imposed the toll tax on poor citizens on their bullock carts through his selfish and bogus companion Shri Shankarrao Deshmukh, President of Rajura Municipality, which has caused undue suffering to every poor citizen residing in this part.
(b) Vithalrao Dhote has only secured advantage for Abid Husain, Contractor, by imposing the burden of paying for the border stones which were compulsorily ordered to be fixed.
(c) In this taluq no cultivator has been able to get taccavi without payment of bribe 'and Vithalrao is unable to prevent it.
(d) Vithalrao Dhote has solely protected the interest of the contractor and neglected the poor citizens and on that account Vithalrao Dhote has forfeited confidence of poor persons in Rajura taluq.
(e) The poor population is simply harassed and I have found that the inclination of the people is against Vithalrao Dhote when I went around in the village.
(f) Poor persons are simply harassed on account of exploitation and ruin caused by Vithalrao Dhote solely for the benefit of his selfish and bogus companions.
775 (g) Persons (meaning the petitioner) who is a menace W the majority of the community and poor persons must be sacked from the office in my firm conviction.
" None of the afore mentioned allegations can be hold to relate to the personal character or conduct of the first respondent.
They are undoubtedly criticism, true, false or exaggerated, of the first respondent 's roll as politician.
Those statements do not make any reflection on the moral or mental qualities of the first respondent.
As mentioned earlier a Congressman was the President of the Rajura Municipality 'at the time the tolls were reimposed.
It may be that the first respondent had no hand in the matter of reimposition of the tolls and that the accusation that he got it reimposed is not true but that in no manner can be said to reflect on the personal character or conduct of the first respondent.
Similarly the accusation that the first respondent secured advantage for Abid Hussein by imposing a burden on the land owners by making them pay for the boundary stones cannot be said to reflect on the private character of the first respondent whether the statement in question is true or false.
The appellant had a right to hold the first respondent responsible for the actions of the Government as he was a member of the party in power.
The allegation that in the Rajura Taluka no cultivator had been able to get Taccavi loans without payment of bribe and that the first respondent was unable to prevent it, is undoubtedly a legitimate criticism.
The allegation that he solely protected the interests of the contractor and ignored that of the poor citizens and on that account he has forfeited the confidence of the poor persons in his constituency is an expression of an opinion, whether the same is true or not.
The allegation that the poor population is simply harassed and that the signatory to the pamphlet found that the inclination of the people is against the first respondent when he went around in the village, is merely an opinion and not a statement of fact.
Similarly the allegation that the poor persons are being harassed on account of the exploitation and ruin caused by the first respondent solely for the benefit of his selfish and bogus companions is an expression of an opinion and it is a permissible criticism in a political debate.
The assertion that the first respondent is a menace to the majority as also to the poor and therefore he must be sacked from the office is as stated in the pamphlet itself is purported to be the conviction of the person who issued the statement.
He is entitled to hold that opinion and propagate it.
It must be remembered that during election time passions are roused; election propaganda should not be tested by the standards to be adopted in a debate carried on by intellectuals.
It may be that many of the charges levelled against a candidate as regards his political past or about his capacity to be a useful representative 776 are not true.
It is for the electorate 'to judge those accusations.
So long as those accusations do not affect the personal character or conduct of the candidate, the election law will not take note of it.
That is why it is said that a politician must be thick skinned and more so at election time.
As mentioned earlier it is not a corrupt practice to say something which may be severe about another person, nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to his personal character or conduct.
It is unfortunate that the High Court exclusively focussed its attention on the question whether or not the appellant caused to get Exhs.
55 and 56 printed and published and completely ignored the true effect of the statements contained therein.
It proceeded on the erroneous impression that every false or unjustified criticism of a candidate amounts to a contravention of section 123(4).
Dealing with Exhs.
55 and 56 this is what the learned Trial Judge observed: "To say against anybody that he is responsible for imposition of a tax without ' justification through.
that person 's selfish and pretentious friend like the President of the Municipal Council is, to say the least, to suggest that such person is the direct cause of 'harassment on account of such taxation on poor people.
It is said in the third paragraph of the pamphlet and then there is a direct allegation against the petitioner that it is the petitioner who caused the cultivators in the Rajura taluq to be burdened with.
the expense of fixing.
the border stones and that in doing so the petitioner Vithalrao Dhote has solely secured an advance for Abid Hussain Thekedar.
In the fourth paragraph, it is categorically alleged that the petitioner Vithalrao Dhote has exploited and harassed poor people in order to benefit his i.e. Vithalrao selfish and pretentious friends and such harassment has caused untold miseries.
That these allegations are scurrilous does not admit of any doubt.
They are defamatory per se.
Every citizen is entitled to be presumed to be innocent until contrary is proved.
If therefore an allegation of a personal character is made against anyone, it is the maker of the allegation who has to establish that there is truth in the allegation.
" It is clear that the High Court failed to examine the effect of the statements contained in Exhs.
55 and 56 by the tests prescribed in section 123(4).
Further there is no proof in this case that the statements contained in Exhs.
55 and 56 are reasonably calculated to prejudice the election of the respondent.
The Trial Court did not give any finding effect.
777 This leaves us with the question whether the appellant had announced in his election meetings that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing boundary stones.
The High Court has held that the appellant made that accusation while 'addressing election meetings at two places.
If that finding is correct then undoubtedly there is a contravention of section 123(4) but after carefully examining the material on record we have come to the conclusion that finding is unsustainable.
The election petition was filed on April 11, 1967.
That petition merely sets out what according to the petitioner are the contents of Exts.
55 and 56.
It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters.
The allegation that the appellant in his election meetings had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stone is not mentioned there.
An application to amend the election petition was made on June 24, 1967.
In that application also there is no reference to the allegation in question.
The election petition was again amended on 3 7 1967.
It was only then the following allegation was made: "He (the appellant) was falsely alleging that the petitioner was or had actively helped Abid Hussain for his selfish ends to make illegal gains and thus allege false corrupt motives to him." Even this allegation is vague.
That apart it is a highly belated allegation.
It appears to be an afterthought.
It is not necessary for us to decide in this case whether such an amendment could have been permitted after the limitation for filing the election petition had expired.
But the very circumstance that the allegation in question was made several months after the election petition was filed by itself casts serious doubt on the veracity of that allegation.
This circumstance was completely overlooked by the High Court.
The witnesses who spoke in support of the said allegation are the first respondent (P.W. 2), P.W. 9, Arjan Kashinath Masirkar and P.W. 12, Nazir Hussain Akbar Ali.
So far as P.W. 2 is concerned he is undoubtedly an interested witness.
In the circumstances mentioned above, his evidence can have very little persuasive value.
So far as P.W. 9 is concerned on his own showing he was highly interested in the first respondent and the Congress Party.
As elicited during his cross examination he was a Congress candid.ate for election as Sarpanch and as a member of the Panchayat Samiti.
The appellant 's cousin was his rival in that election.
Admittedly during the last election he canvassed for the 778 first respondent.
Under these circumstances much reliance cannot be placed on the testimony of this witness.
Then we come to the evidence of P.W. 12.
During his cross examination this is what he stated: "I have not received a summons.
Vithalrao had asked me to produce the register where the hire of cycles is noted and that is how the chits which I have filed came with the register . ." His evidence is to the effect that the appellant while presiding over the meeting at Rajura on February 13, 1967 stated that the first respondent had a share in the contract for fixing of border stones which was produced for him by Vithalrao.
When he was crossexamined about that meeting this is what he stated: "I don 't remember who was the President of the meeting.
I will ' not be able to name at this distance of time the names of persons from the town or the villagers who were listening at the meeting.
I will not be able to name a single person from amongst these.
" Obviously he is a procured witness.
No reliance can be placed on his evidence.
For the reasons mentioned above we hold that the election petitioner (first respondent herein ) has failed to make out that the appellant had contravened section 123(4).
Hence this appeal succeeds and the election petition stands dismissed.
We are of opinion that we should not award any costs to the appellant.
He had come forward with a false case and had protracted the trial of the case by adducing voluminous false evidence.
Hence we direct the parties to bear their own costs both in this Court as weld as in the High Court.
G.C. " Appeal allowed.
[/INST]The appellant was the returned candidate from the Rajura constituency Maharashtra State Legislative Assembly in the general election held in February 1967.
The first respondent who was one of the defeated candidates challenged the appellant 's election in an election petition.
The High Court held that the appellant had made false statements about the personal character and conduct of the first respondent and was guilty of corrupt practice within the meaning of section 123(4) of the Representation of the People Act, 1951.
On this view the High Court allowed the election petition and set aside the election of the appellant who appealed to this Court.
HELD: (i) The election law in this country as in England guarantees freedom of criticism of political nature at the time of election.
The freedom of criticism may sometimes be misused, but the advantage gained from free criticism though sometimes it may turn out to be irresponsible in the long run outweighs the disadvantages.
It is in the interests of democracy that such criticism should be allowed.
However democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election.
A political party may not be affected by passing winds but a campaign of slander against an individual is likely to create prejudice in the mind of the people against him.
Section 123(4) is designed to achieve the dual purpose of protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals.
[769 C] (b) The ingredients of the corrupt practice mentioned in section 123(4) are (1) the publication by a candidate or his election agent or by any other person with the consent of that candidate or his election agent of any statement of fact; (2) which statement is false and which was believed by the candidate to be false or at any rate was not believed by him to be true; (3) the said statement relates to the personal character or conduct of a candidate or is in relation to his candidature or withdrawal; and (4) the same being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
The burden of proving 'every one of the ingredients of the corrupt practice alleged is on him who alleges it.
[768 G; 77] (c) Every false allegation does not come within the mischief of section 123(4).
The language of the section is 'any statement of fact which is false ' and that language must be used in contrast to a false statement of opinion.
The statement in question must be in relation to the personal character of candidate.
It is when the false allegation pierces the politician and touches the person of the candidate that section 123(4) is contravened.
Further one of the ingredients of the corrupt practice under the section is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is ' made. 'Calculated ' means designed: it denotes more than mere 767 likelihood and imports a design to affect voters.
The emphasis in the last limb of the section is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed.
[769 F G; 770 E] (ii) In the present case the statements alleged to have been made by the appellant did not amount to corrupt practice within the meaning of section 123(4) as they amounted either to fair political criticism or were mere expressions of opinion.
The complaint that the appellant had stated that the respondent had a share in the profits earned by a contractor is neither alleged in the election petition nor satisfactorily proved.
[777 D, F] Sheopat Singh vs Ram Pratap, [1965] t S.C.R. 175, T.K. Gangi Reddy M.C. Anjaneya Reddy & Ors., XXII E.L.R.p.
266 and Dattatraya Narayan Patil vs Dattatraya Krishnaji Khenvikar & Ors. , relied on.
Cumberland (Cockermouth Division) Case, , referred to.
</s>
|
<s>[INST] Summarize the judgementivil Appeal No 138 of 1955.
Appeal from the judgment and decree dated October 15, 1953, of the Mysore High Court at Bangalore in Regular Appeal No. 255 of 1950 51, arising out of the order dated September 18, 1950, of the Court of the District Judge, Bangalore, in Misc.
Case No. 39 of 1947 48.
G. Channappa, Assistant Advocate General, Mysore R. Gopala Krishnan and T. M. Sen, for the appellant ' A. V. Viswanatha Sastri, M. A. Rangaswami, K. R. Sarma and K. R. Choudhury, for the respondent.
November 7.
The Judgment of the Court was delivered by section K. DAS, J.
This appeal by the Special Land Acquisition Officer, Bangalore, has been brought to this Court on a certificate granted by the High Court of Mysore, and is from the decision of the said High Court dated October 5, 1953, in a regular appeal from an order made by the 2nd Additional District Judge, Bangalore, on September 18, 1950, on a reference under section 18 of the Land Acquisition Act (herein.
after referred to as the Act).
The facts so far as they are relevant to the appeal before us are these.
An area of about 51,243 squard 406 yards of land was acquired by Government under Notification No. M. 11054 Med.
80 45 25 dated April 16, 1946, for development of the Appiah Naidu Maternity Home at Malleswaram, Bangalore City, into a Maternity Hospital.
There were eight owners interested in the property acquired, out of whom two objected to the award made by the Special Land Acquisition Officer, now appellant before us.
One of these two was T. Adinarayana Shetty, a diamond merchant of Mysore City.
Originally, he was the respondent before us, and on his death his son and legal representative has been brought into the record as the sole respondent to this appeal.
The deceased respondent Adinarayana Setty (hereinafter called the respondent) was interested in 48,404 sq.
yards out of the total area, and it may be stated here that there is no dispute before us that out of the said 48,404 sq.
yards an area of about 3,000 sq.
yards consists of land which has been variously characterised as a depression or a pit or low lying land (called 'halla ' in the local vernacular language).
Out of the total amount of compensation awarded by the Special Land Acquisition Officer, a sum of Rs. 1,41,169/was awarded to the respondent.
The Special Land Acquisition Officer proceeded on the following basis for his award.
Firstly, he found that the land value in and around Bangalore City had increased in recent years owing to the war and the respondent had paid to the Deputy Commissioner, Bangalore District, a sum of money called a conversion fine for sanctioning a scheme of converting the land into non agricultural land.
Thereafter, a layout for building sites was prepared and approved by the Municipality and the res pondent sold a few of the sites shown in the layout to some purchasers.
This was done before the publication of the preliminary notification of acquisition; but the sale of further building sites was stopped after the said publication.
Secondly, the Special Land Acquisition Officer took into consideration the value of the sites sold by the respondent and came to the conclusion that Rs. 10/ per sq.
yard was the market value of the land in question.
He awarded to the respondent compensation for approximately 48,404 sq. yards at the 407 rate of Rs. 10/ per sq. yard, but after deducting therefrom an area of 26,248 sq. yards which, according to the Special Land Acquisition Officer, was required for making roads and drains as per the layout scheme.
The total amount thus calculated came to Rs. 2,21,563.
and odd and from this a sum of Rs. 98,807 was again deducted as representing the expenditure which would be required for making roads and drains.
The net amount was thus found to be Rs. 1,22,756 and odd and adding 15% as the statutory compensation payable to the respondent the total amount awarded by, the Special Land Acquisition Officer to the respondent, came to Rs. 1,41,169/ .
Against this award, the respondent raised an objection, and a reference was accordingly made to the District Judge of Bangalore under section 18 of the Act.
This reference was heard by the 2nd Additional District Judge who, by his order dated September 18, 1950, came to the following conclusions: (i) that the rate awarded by the Land Acquisition Officer at Rs. 10/ per sq.
yard was fair and should be,upheld; (ii) that a sum of Rs. 10,000/ for providing electric installation out of the sum of Rs. 98,807/ deducted by the Land Acquisition Officer from the compensation payable to the respondent should not be deducted; and (iii) that with regard to the area of the low lying.
land which I was completely excluded by the Land Acquisition Officer, the respondent should get at the rate of Rs. 3/ per sq. yard or approximately a sum of I Rs. 10,000/ .
In other words, the learned Additional District Judge increased the compensation in favour of the respondent by a sum of about Rs. 20,000/ .
Not being satisfied, the respondent preferred an appeal to the High Court of, Mysore.
The learned Judges of the High Court found that the proper compensation for the land,.
except the portion characterised as low lying, should be Rs. 13/8/per sq. yard and as to the low lying portion it should be reduced by Rs. 51 per sq.
yard inasmuch as a sum of Rs. 15,000/ was necessary, according to the 408 evidence given in the case, for filling it up; in other words, the High Court awarded compensation at the rate of Rs. 8/8/ per sq. yard for the low lying land.
The High Court also reduced the area which had to be deducted for making roads, etc., according to the layout scheme from 26,248 sq.
yards to 12,101 sq.
yards.
It also reduced the layout charges to Rs. 64,432/ .
The High Court added to the compensation a sum of Rs. 7,000/ as the value of a building which the respondent had constructed on one of the sites on the finding that the construction was made prior to the preliminary notification.
In this respect the High Court departed from the finding of the Land Acquisition Officer that the building was put up after the publicaion of the preliminary notification.
The total amount of compensation which the High Court awarded came to about Rs. 4,80,000 and odd.
As the judgment of the High Court was a judgment of reversal and the appellant felt dissatisfied with it, a certificate of fitness was asked for and was granted by the High Court on July 6, 1954.
The present appeal has been brought to this Court in pursuance of that certificate.
The appellant has confined his appeal to the following three points: (1) payment of compensation of a sum of Rs. 7,000/ for the building said to have been constructed before the publication of the preliminary notification; (2) payment of compensation at Rs.
,8/8/per sq. yard for the low lying land (halla); and (3) payment of compensation at Rs. 13/8/ for the remaining land after deducting the area for making roads and buildings.
We may state that there is no dispute before us now as to the area which should be so deducted and also as to the amount of layout charges, as the findings of the High Court on these two points nave not been challenged before us.
On behalf of the respondent our attention has been ' drawn to the decisions of the Privy Council in Charan Das vs Amir Khan (1), Narsingh Das vs Secretary of State for India (2) and Nowroji Bustomji Wadia vs (1) (1920) 47 I.A. 255.
(2) (1924) 52 I.A. 133.
409 Bombay Government (1).
On these decisions it is submitted by learned counsel that though section 26 of the Act was amended in 1921 by insertion of sub section
(2) which says that every award shall be deemed to be a decree ' and thus an appeal therefrom must be considered and determined in the same manner as if it is a judgment from a decree in an ordinary suit the established practice of the Privy Council has been not to interfere with a finding on the question of valuation, unless there is some fundamental principle affecting the valuation which renders it unsound.
The practice, it is stated, was based on two considerations: first, that the courts in India were more familiar with local conditions and circumstances on which the valuation depended and, secondly, the Privy Council found it necessary to limit the extent of the enquiry in order to spare the parties costly and fruitless litigation.
On behalf of the appellant it is submitted that this Court has no doubt adopted the practice that it will not ordinarily interfere with concurrent findings of fact, but this Court has no such established practice as was adopted by the Privy Council in valuation cases even where a difference of opinion has occurred between two courts upon the number of rupees per yard to be allowed for a plot of land.
He has further submitted that the reasons for the practice adopted by the Privy Council do not apply with equal force to this Court.
In view of the facts of this case and the opinion which we have formed after hearing learned counsel for both parties, we do not think it necessary to make any final pronouncement as to the practice which this Court should adopt in a valuation case where two courts have differed.
We are content to proceed in this case on the footing that we should not interfere unless there is something to show, not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied.
(1) (1925) 52 I.A. 367.
52 410 We are satisfied that there is no error of principle or otherwise in the findings of the High Court as to the first two points urged in support of the appeal.
As to the construction of the building for which a compensation of Rs. 7,000 has been awarded, the clear finding of the High Court is that it was constructed prior to the preliminary notification.
It has been further stated before us that the building is in actual occupation of the medical department.
Learned counsel for the appellant has taken us through the evidence on the question of construction of the house and the application for a licence for building the said ' house which was made by the respondent to the Bangalore Munici pality.
We are unable to hold that that evidence has the effect of displacing the clear finding of the High Court.
As to the low lying land, we consider that the High Court has given very good reasons for its finding.
Admittedly, the area of the low lying land (halla) is about 3,000 sq.
yards.
The Land Acquisition Officer valued it at Rs. 3 per sq. yard.
A sum of Rs. 15,000 has been deducted from the compensation payable to the respondent on the ground that that amount will be required for filling up the low lying land and converting it into building sites.
Therefore, the position is that the respondent has not only been made to part with 3,000 sq.
yards of land at 3 per sq. yard, but he has also been made to pay Rs. 15,000 for filling up the land.
If these two figures are added, even then the market value of the land comes to about Rs. 8 per sq. yard.
This is so even if we do not follow the method adopted by the High Court that the sum of Rs. 15,000 for 3,000 sq.
yards gives an average of Rs. 5 per sq. yard and that amount should be deducted from the rate of Rs. 13 8 0 per sq. yard fixed as the proper compensation for the remaining land.
We are of the opinion that on the materials before us the value per sq. yard fixed by the High Court for the low lying land is fully justified even on adoption of the method suggested by learned counsel for the appellant.
Learned counsel for the respondent has referred us to the circumstance that some of the sales 411 of building sites which the respondent had made appertained to the low lying land and he has further emphasised the circumstance that just opposite the low lying land which is at the eastern end of the entire area, some houses had been built.
We have taken these circumstances into consideration, but do not think that the conclusion which learned counsel for the respondent wishes us to draw follows therefrom.
First of all, it is by no means clear that the sales of the building sites at the low rate of Rs. 6 8 0 or thereabout appertained to the low lying land only, and, secondly, the mere circumstance that some buildings have been made on land opposite the low lying lands but on the other side of the road, does not necessarily mean that the low lying lands are as valuable as the other land in the area.
We are therefore of the view that the compensation fixed by the High Court for the low lying land is not vitiated by any error of the kind which will justify our interference with it.
We now proceed to consider the third and main point urged on behalf of the appellant, namely, the rate of 13/8 per sq. yard for the other land in the area.
Learned counsel for the appellant has submitted before us that the High Court has committed two fundamental errors in arriving at this finding.
Furthermore, the High Court has been influenced by extraneous considerations such as the purpose for which the land was acquired, the report of certain medical authorities as to the unsuitability of the land for the purpose for which it was acquired, and the delay in putting the land to the use for which it was acquired.
We agree with learned counsel for the appellant that these were extraneous considerations which had no bearing on the question of valuation and the learned Judges of the High Court misdirected themselves as to the scope of the enquiry before them when they imported these considerations into the question of valuation.
We further think that the High Court committed an error of principle in arriving at the figure Rs. 13/8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the 412 relevant time.
It is not disputed that the function of the court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under section 4(1) and the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bonafide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years ' purchase of the actual or immediately prospective profits of the lands acquired.
In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors.
There were altogether seven transactions of alienation made by the respondent.
One was a gift which must necessarily be excluded.
The earliest of the sales was in favour of Muniratham which was made on May 15, 1945.
Another was made on July 18, 1945.
This was in favour of Venugopal who was the husband of a grand daughter of the respondent.
Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August, 1945.
The notification under section 4 of the Land Acquisition Act was made on October 4, 1945.
What the learned Judges of the High Court did was to take only four out of the aforesaid six transactions into consideration and then to draw an average price therefrom.
The learned Judges gave no sufficient reason why two of the transactions were left out.
In one part of their judgment they said : " The evidence discloses that the appellant has effected four sales about a couple of months prior to the date of preliminary notification and the rates secured by him are Rs. 12, 15, 14 and 7/8 which on calculation give an average of Rs. 12/2 per sq. yard ".
Why the transaction of May 15, 1945, which was at a rate of Rs. 6/8 per sq. yard only was left out it is difficult to understand.
Similarly, the transaction of July 18, 1945, was at the rate of Rs. 10 per sq. yard.
That also was left out.
We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court.
If all the six transactions of sale are taken into consideration, the average rate comes to about Rs. 10/13 per sq. yard only.
Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average.
Having arrived at an average of Rs. 12/2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12/2.
Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13/8.
No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference.
It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions.
It is difficult to understand why it should be utilised again for arriving at the market value of the land in question.
We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only.
Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (exhibit 11).
The respondent had therein said: Hence, under the standing orders compensation has to be paid at rates for building land in the neighbourhood.
This rate ranges from Rs. 10 to Rs. 12, an average of Rs. 10 a sq. yard, as could be verified from entries in the local Sub Registrar 's Office and Bangalore City Municipal Office.
At any rate, I myself have sold in the course of this year some six sites out of the land proposed to be acquired for rates ranging from Rs. 7 to Rs. 15 or on an average of Rs. 10 per sq. yard.
At this rate the compensation amount will be Rs. 5,12,430 and adding the statutory allowance of Rs. 76,860 at 15 per cent.
on the compensation amount on account of the compulsory nature of the acquisition, the total cost of the land will be Rs. 5,89,290 or nearly six lakhs of rupees.
" 414 The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 ,per sq.
yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme.
It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard.
It is worthy of note that the six transactions to which the respondent referred were sales of small building sites.
It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed.
We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land in question should be Rs. 11 per sq. yard.
The result, therefore, is that we allow this appeal to this limited extent only, namely, the order of the High Court will be modified by substituting the figure Rs. 11 per sq. yard for the figure Rs. 13/8 awarded by the High Court as compensation to the respondent for land other than the low lying land.
We maintain the order of the High Court that the parties will receive and pay costs in proportion to their success and failure, as now determined, in the courts below; but so far as the costs of this Court are concerned, the parties must bear their own costs in view of their divided success here.
Appeal partly allowed.
[/INST]Certain land belonging to the respondent was compulsorily acquired by the Government for a maternity hospital.
Most of the land consisted of building sites but there was a building on a small portion of the land and a portion was low lying land.
The Special Land Acquisition Officer held on the basis of the value of sites previously sold by the respondent, that the market value of the land was Rs. 10/ per sq. yard and awarded a sum of Rs. 1,41,169/ to the respondent as compensation.
He did not give any compensation for the low lying land or for the building.
Against this award the respondent raised an objection and a reference was made to the District judge.
The District judge accepted the rate of Rs. 10/ per sq. yard as fair, reduced the amount of deductions for providing electric installations by Rs. 10,000/ and allowed a sum of Rs. 10,000/ for the low lying area at the rate of Rs. 3/ per sq.
yard, thereby increasing the amount of compensation by Rs. 20,000/ .
Not being satisfied the respondent appealed to the High Court.
The High Court held that the rate of compensation for the land except the low lying portion, should be Rs. 13/8/ per sq yard and for the low lying portion it should be Rs. 8/8/ per sqyard.
It further awarded a sum of Rs. 7,000/ for the building.
In arriving at the figure of Rs. 13/8/ the High Court took into account only four sale transactions which had been made by the respondent at the rates of Rs. 12, I5, 14 and 7/8/ per sq. yard but did not take into consideration two other transactions which had been made by the respondent at the rates of Rs. 6/8/ and Rs. 10 per sq. yard.
It calculated the average of the four transactions to be Rs. 12/2/per sq. yard and then took a second average between Rs. 15/ , 405 which was the maximum price obtained by the respondent and RS.
12/2/ and arrived at the figure of Rs. 13/8/ .
The High Court was also influenced by considerations such as the purpose for which the land was acquired.
, the report of certain medical authorities as to the unsuitability of the land for the maternity hospital and the delay in putting the land to the use for which it was acquired.
Held, that with regard to the valuation of the land, other than the low lying portion, the High Court misdirected itself by taking into account extraneous considerations and had committed an error of principle in arriving at the figure of Rs. 13/8/ by adopting a wrong method of ascertaining the market value.
The High Court ought to have taken the average of all the six sale transactions and arrived at the proper valuation of Rs. 11/. per sq. yard.
There was no justification for ignoring two of the sale transactions or for taking a second average.
With respect to the compensation for the low lying land and the building there was no error of principle or otherwise in the findings of the High Court and no interference was called for.
</s>
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<s>[INST] Summarize the judgementN: Criminal Appeals Nos.
227 and 228 of 1960.
Appeals by special leave from the judgments and orders dated September 16, and AugUst 26, 1960 of the Allahabad High Court in Criminal Misc.
Case No. 1519 of 1960.
N.C. Chatterjee, D.P. Singh and M.I. Khowaja, for the appellants.
C.P. Lal, for the respondent No. 1.
October 9, 1963.
The Judgment of the Court was delivered by HIDAYATULLAH J.
This judgment will govern the disposal of Criminal Appeals Nos. 227 and 228 of 1960.
In both these appeals the appellant is one Mohammad Ikram Hussain an Advocate of the Allahabad High Court residing in 49, Zero Road, Allahabad.
The second respondent in these appeals is one Mahesh Prashad, a resident of 4, Gujrati Mohalla Allahabad City but who has not appeared in this Court.
The other two respondents are the State of U.P. on whose behalf a belated appearance was made by Mr. C.P. Lal, Advocate and the Station House Officer, Kotwalli, Allahabad who was not represented at the hearing.
The two appeals are in a sense connected and impugn two orders of the High Court of Allahabad made respectively on August 26, 1960 and September 16, 1960.
They were passed in a proceeding initiated by Mahesh under section 491, Criminal Procedure Code and article 226 of the Constitution for a writ, order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant and for delivery of the said Kaniz Fatima to him.
The first order was made by the High Court overruling the objections of the appellant, directing him to bring before the Court the said Kaniz Fatima alleged to be held in unlawful confinement.
By that order the High Court gave the appellant 10 days ' time to obey the direction.
As the direction was not complied with and Kaniz Fatima was not brought 89 into the Court, the High Court passed the second order committing the appellant for contempt and sentencing him to simple imprisonment for 3 months and to pay the costs.
The High Court was moved for a certificate but declined it by its Order dated October 14, 1960.
The present appeals have been filed by special leave granted by this Court.
On July 28, 1960, Mahesh Prashad filed a petition in the High Court of Allahabad against the Station House Officer, Kotwali Allahabad and Ikram Hussain, the appellant.
This petition purported to be under section 491, Criminal Procedure Code and article 226 of the Constitution.
Mahesh Prashad stated therein that sometime in October 1959 he made the acquaintance of Kaniz Fatima, the daughter of the appellant and a marriage between them took place on December 25, 1959 according to Vedic rites after Kaniz Fatima had embraced Hinduism.
Mahesh stated that they used to meet clandestinely and Kaniz Fatima became pregnant.
She left home in early June 1960 and went to live with him at his house No. 4, Gujrati Mohalla, Allahabad but on June 23, 1960, the Station House Officer, Kotwali Allahabad searched the house and arrested Mahesh and took away Kaniz Fatima in spite of protests on her part as also on his.
Mahesh further stated that he was 23 years of age and that Kaniz Fatima 's age, according to the record of the Allahabad municipality was 21 years and according to the medical examination at Dufferin hospital immediately after she was taken away from his house, 19 years.
He further stated mat a prosecution was started against him under sections 363, 366, 368 and 376, Indian Penal Code and that, after he was released on bail on July 15, 1960, he searched for his wife but could not find her and learnt that the appellant was keeping her confined against her wishes at Jaunpur.
He asked for a writ for the production of Kaniz Fatima in Court and for her release and swore an affidavit in support of his petition.
In answer to the notice which was issued by the High Court on July 29, 1960, the Station House Officer, and the appellant appeared before 90 the High Court and put in their affidavits.
Before we deal with those affidavits in detail we shall set down the version of the appellant in regard to the disappearance of Kaniz Fatima.
Kaniz Fatima according to the appellant was a student at the Hamidia Girls College, Allahabad, where she had enrolled herself in July 1958.
She appeared for the High School Examination of 1959 but was unsuccessful.
The result was announced about the 17th June 1960 and on June 20, 1960 Kaniz Fatima disappeared.
The appellant then filed a report in the police station house to the following effect: "To The Dy.
Superintendent Police, Allahabad.
Sir, My daughter Kaniz Fatima alias Sheela, aged about 15 years, medium fair complexion, thin body appeared in the High School Examination of 1960 from Hamidia Girls Inter College.
Unfortunately she failed in the examination.
She became very despondent.
Yesterday, the 20th of June 1960 at about 5 o 'clock in the morning she disappeared from the house and has not returned home tilt this time.
I was not in Allahabad yesterday.
I hope, she will be traced and restored to me, I shall be obliged.
Yours faithfully, Sd/ Mohd.
Ikram Hussain, 49, Zero Road, Allahabad.
" The police caused a searched to be made at the house of Mahesh on the evening of June 23, 1960 and found Kaniz Fatima in that house.
Kaniz Fatima then made a statement to the police which is Annexure 'B ' to the special leave petition No. 882 of 1960 in Criminal Appeal No. 227 of 1960.
In that statement Kaniz Fatima stated that she had appeared for the High 91 School Examination from Hamidia College, Allahabad and the result was out on June 17, 1960.
As she had failed in the examination she was very depressed and as her parents used to make sarcastic remarks she decided to leave the house and go to her aunt Sardar Begum in Rani Mandi.
Accordingly she left in the early hours of the morning but lost her way as she was a Parda girl and had no money even to hire a rickshaw.
On the way she met two men Mahesh and Sudama who offered to show her the way to Rani Mandi but instead took her to the house in Gujrati Mohalla from where she was recovered.
She alleged that they criminally assaulted her and kept her confined against her will.
She gave her age as about 15 years or 16 years but stated that she did not know the age entered in the college register.
On the next day another statement of Kaniz Fatima was recorded by the police and it is Annexure 'E ' to the petition above mentioned.
By this statement she expressed a desire to live with her father, the appellant, and the police handed her over to the appellant taking from him a 'Sapurdaginama ' (Annexure H) containing an undertaking that he would produce the said Kaniz Fatima whenever required by the police or the Court in connection with the case against Mahesh Prashad and.
others.
It is thus that the appellant got back his daughter Kaniz Fatima while Mahesh Prashad was arrested and charged with abduction and rape but was released on bail on or about July 15, 1960.
On July 28, 1960, he filed this petition for a writ of habeas corpus.
We need not concern ourselves with the affidavit of the Station Officer, Kotwali, Allahabad.
His position was quite clear.
He had handed over the girl to her father after taking a statement from her.
The appellant made a return on affidavit supporting it by an affidavit of one Ram Nath.
The appellant 's return stated the facts already narrated by us in regard to the disappearance of Kaniz Fatima and her recovery from No. 4, Gujrati Mohalla, Allahabad, He stated further that Kaniz Fatima was not with him, having disappeared for a second time in the circumstances 92 now to be narrated.
The appellant stated that Kaniz Fatima was very dejected over what had happened to her and was sent to his brother in law, Syed lqtedar Hussain, 51, Sabzi Mandi, Allahabad and his wife Mst.
Shabbiri Begum, the sister of Kaniz Fatima 's mother.
This was on July 8, 1960.
The appellant and his wife used to go to see Kaniz Fatima at that house which was less than half a mile from their house.
On July 20, 1960, Iqtedar Hussain and Shabbiri Begum informed him that Kaniz Fatima had disappeared.
He felt very dejected and his son Imdad Hussain and Iqtedar Hussain searched for the girl at the houses of all their relatives in Allahabad and also at Faizabad.
The appellant stated that he did not report to the police because of the scandal and humiliation.
He expressed his inability to bring the girl.
He stated that the allegations about the con.
version of Kaniz Fatima, her marriage and pregnancy were entirely false.
He contended that no marriage could take place because Mahesh was already married with a wife living.
The affidavit of Ram Nath was earlier filed in support of the last allegation.
The appellant now filed an affidavit by Iqtedar Hussain in support of his affidavit about the second disappearance of Kaniz Fatima.
Mahesh Prashad thereupon filed an affidavit in rejoinder by which he reiterated that he was married to Mst.
Ram Rati but alleged that he had divorced her according to the custom of the caste and that Ram Rati had remarried and was living with her husband.
He alleged that his marriage with Kaniz Fatima had taken place in the presence of respectable persons of the locality and that the story of the disappearance of Kaniz Fatima was false and she was illegally and improperly being detained against her wish by the appellant.
On this material the High Court passed the first order on August 26, 1960.
From that order it appears that the High Court did not enter into any question of fact except the age of Kaniz Fatima.
The High Court held that if Kaniz Fatima was a minor no 93 habeas corpus application would lie because the father would be the guardian but if Kaniz Fatima was major then the application was competent and Kaniz Fatima was the best person to judge for herself where she would live.
The learned Judges were of the opinion that the issue whether Mahesh and Kaniz Fatima were married was not at all relevant.
The age of Kaniz Fatima was taken by the learned Judges to be 19 years in view of the result of the medical examination and holding that she was major the learned Judges addressed themselves to what they described as the main question: Whether the appellant had Kaniz Fatima in his control ? In this connection the learned Judges referred to the undertaking given by the appellant to the police to produce Kaniz Fatima whenever required and observed that it was his duty to keep a watch on her movements.
Finding that there was no date mentioned in the affidavit regarding her second disappearance they ordered a fresh affidavit to be filed.
That affidavit was filed on the 11 th August 1960 and was supported by the affidavit of Iqtedar Hussain of the same date.
We have referred to the contents of these documents.
The learned Judges pointed out that the appellant 's conduct was somewhat strange because he had neither reported the second disappearance of Kaniz Fatima to the police nor informed the Magistrate in whose Court the criminal case was pending about it.
They were of opinion that it was also very unlikely that Kaniz Fatima who had brought such troubles on her head by running away from home would leave the house for the second time without the connivance or aid of someone, and they concluded that person could be none other than her father.
They took into consideration that the appellant had denied the fact of marriage and conversion to Hinduism on the basis of personal knowledge when this could only be on information received from Kaniz Fatima and had further sworn an affidavit about the state of mind of Kaniz Fatima immediately before her second disappearance which he could not have known unless he was present personally.
Holding, therefore, that 94 Kaniz Fatima was not minor and the petition could be proceeded with, they made an order for the production of Kaniz Fatima in Court.
The appellant did not produce the girl in obedience to the direction of the High Court and the second order was passed committing him for contempt and sentencing him as stated already.
In these appeals both these orders are challenged.
Against the first order it is contended that the High Court was in error in ordering the production of Kaniz Fatima, acting on the affidavits of Mahesh which were patently false.
Against the second order, it is contended that it was impossible for the appellant to carry out the Court 's order because Kaniz Fatima was not with him and her whereabouts were not known to him and that the committal for contempt and the punishment imposed were unjustified.
Lastly, it was urged that the sentence was too heavy.
From what we have stated above it will appear that the action of the Court is questioned on two connected but in essence entirely separate matters.
The disobedience of the order of the Court entailing punishment for contempt is a very different matter from the action taken in the habeas corpus petition.
The order of commitment for contempt presents no difficulty.
Even if the direction was inexpedient, an order had been made for bringing Kaniz Fatima before the Court and it had to be complied with unless the appellant could plead and prove his inability to comply with it.
The question whether the Court ought, on the materials present before it, to have called upon the appellant to bring Kaniz Fatima in Court is something which does not enter into the obedience of the order made.
A direction given by the High Court in a proceeding for a writ.
of habeas corpus for the production of the body of a person has to be carried out and if disobeyed the contemner is punishable by attachment and imprisonment.
A valid excuse will, however, be that it is impossible to obey the order.
95 We have heard Mr. N.C. Chatterjee in support of the contention that the appellant did not know the whereabouts of Kaniz Fatima and was unable to comply with the orders of the High Court.
We are not satisfied that the appellant could not have brought Kaniz Fatima before the Court.
His conduct belies his assertion that he did not know where Kaniz Fatima was.
When Kaniz Fatima disappeared for ' the first time the appellant lost no time in making a report to the police and the efficiency of the police was demonstrated by the discovery of Kaniz Fatima within two days.
If Kaniz Fatima disappeared a second time the appellant, unless he knew where she had gone, should logically have enlisted the support of the police immediately.
There would, of course, be no point in reporting to the police if the whereabouts were to be kept secret because the police might have found Kaniz Fatima thus proving the report to be false.
If Kaniz Fatima disappeared in mysterious circumstances it should have occurred to the appellant that perhaps Mahesh and Sudama whom she had charged with abduction and rape might have had a hand in her second disappearance and then what better move was open to the appellant than to go to the police? It is not his ease that he got disgusted and let Kaniz Fatima go her own way.
He started a search for her on his own and his son and brother visited the houses of relatives in Allahabad and his son went to Faizabad to make enquiries there.
It is clear that, on his own showing, he was anxious to find Kaniz Fatima and spared no efforts to find her but he did not enlist the support of the police.
This as stated already was very surprising because on the first occasion the police had found Kaniz Fatima almost at once and restored her to him.
The conclusion is inescapable that he avoided the police this time.
Again the High Court is right in thinking that Kaniz Fatima who had a harrowing experience would not venture out a second time.
Kaniz Fatima had stated that she had got lost when she left the house on the first occasion and that she did not know her way in the town as she had always travelled in 96 a closed rickshaw.
It would be very unlikely that she would venture out a second time.
It is not suggested that she left the house to do away with herself or to go away on her own.
These possibilities have not been canvassed before us.
Of the two alternatives which might have suggested themselves namely that she had left the house to go to some relative or was taken away by Mahesh and Sudama, neither came in the way of making a report to the police.
But if the appellant knew where Kaniz Fatima had gone and was not anxious that her whereabouts should be discovered the report to the police would not be made.
The excuse that the appellant was saving himself from scandal and humiliation cannot appeal to anyone because there was enough of scandal and humiliation already and little could be added to it.
The High Court 's conclusion that the appellant was harbouring Kaniz Fatima and keeping her hidden was impeccable.
In these circumstances, we are of opinion that when the Court did make an order for the production of Kaniz Fatima even if another court would have taken some other steps it had to be carried out unless it was impossible for the appellant to comply with it.
In our opinion the High Court 's commitment for contempt was justified because the High Court rightly reached the conclusion that the appellant having the knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wailfully and deliberately disobeying the direction of the Court.
In so far as the offence of contempt is concerned there was a manifest disobedience of the order and the High Court could punish it brevi manu by ordering the appellant to be detained in prison.
The High Court 's powers for punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record.
The learned Judges were perhaps in error in describing it as contempt in facie curiae.
That is contempt of a different sort.
This was contempt by disobedience of an order of the High Court which is sometimes a civil contempt 97 punishable under the Code of Civil Procedure and sometimes a criminal contempt punishable by imprisonment.
The only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act which limits the term for which a person can be imprisoned to six months simple imprisonment.
The High Court was justified in punishing this contempt.
In view of the grossness of the contempt it cannot be said that the punishment of three months simple imprisonment was excessive.
We therefore decline to interfere with the order of September 16, 1960.
Criminal Appeal No. 227 of 1960 against that order is dismissed.
The first order by which Kaniz Fatima was ordered to be brought into Court was questioned on the ground of want of jurisdiction and for irregularity in the exercise of that jurisdiction.
The High Court acted with jurisdiction.
The writ of habeas corpus issues not only for release from detention by the State but also for release from private detention.
At Common Law a writ of habeas corpus was available to the husband for regaining the custody of his wife if she was wrongfully detained by anyone from him without her consent.
What amounts to wrongful detention of the wife is, of course, a question for the Court to decide in each case and different circumstances may exist either entitling or disentitling a husband to this remedy.
There was also no material irregularity vitiating the order for inexpediency is not the same thing as irregularity and all that has been pointed out is that the High Court acted without sufficient enquiry and deliberation.
We shall say something about this because this criticism is perhaps justified.
Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used.
Then there is the remedy of a civil suit for restitution of conjugal rights.
Husbands take re 1 SCI/64 7 98 course to the latter when the detention does not amount to an offence and to the former if it does.
In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established.
This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case.
It is of course singularly inappropriate in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ.
In the present case the police had before them a report by the appellant that Kaniz Fatima had not returned home and on search the police found her in a house where she normally would not be found unless she went there herself or was carried there against her will.
The police arrested Mahesh in the house and examined Kaniz Fatima and her statement was as follows: " . . . . .
I had sat for the High School Examination from the Hamidia College, Allahabad this year i.e. 1960.
The result was out on the 17th of June 1960.
I failed in the examination, I felt much depressed, as it was at my instance that my parents had sent me to study in the school.
On my having failed, my parents often passed sarcastic remarks at me.
I felt much grieved and made up my mind to leave the house and move away for some time to the house of my aunt (mother 's sister) named Sardar Begum, who was married to Shri Ziarat Hussain and was living at Rani Mandi.
Therefore, I left my house for Rani Mandi in the very early hours as I had been to Rani Mandi on the screened rickshaw from my house several times, therefore, I thought that I would find out my way.
As I had left the house without the knowledge of my parents, hence I had no money with me even to hire a rickshaw to go to Rani Mandi.
I was proceeding for Rani Mandi when I lost the way and when I could not find the way 99 to Rani Mandi even after covering a long distance, these two men Mahesh and Sudama met me in the way.
1 inquired from them about the way.
Thereupon Mahesh told me that they would lead me to Rani Mandi.
Having pretended to take me to Rani Mandi Mahesh fraudulently took me to that house in Gujrati Mohalla from where I have been recovered.
In addition to Mahesh, his companion Sudama was also there.
Being pushed in, I was thrust in the house from where I have been recovered.
Since then, I have been kept in concealment in that house against my will up to this day.
They have committed the bad act with me by force.
My age is about 15 or 16 years.
1 don 't know my age in the college register.
" Later Kaniz Fatima stated in writing that she wanted to return to the appellant.
Kaniz Fatima had described her age as 15 or 16 years and in view of her allegation that she was compelled to sexual intercourse and brought to the house by a trick, offences under sections 363,366 or 368, Indian Penal Code, depending on her age, and section 376, Indian Penal Code were alleged against Mahesh.
If Kaniz Fatima was below 18 years of age there would be an offence under section 368, Indian Penal Code at the very least unless she was married to Mahesh because Mahesh admitted that he had sexual intercourse with her.
In these circumstances, with a prosecution pending against Mahesh the learned Judges might well have satisfied themselves first about the factum of marriage and the age of the girl with more circumspection.
A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course.
Though a writ of right, it is not a writ of course especially when a man seeks the assistance of the Court to regain the custody of a woman.
Before a Court accedes to this request it must satisfy itself at least prirna facie that the person claiming the writ is in fact the husband and further whether valid marriage between him and the woman could at all have taken place.
100 In the present case Kaniz Fatima was stated to be under the age of 18.
There were two certified copies from school registers which showed that on June 20, 1960 she was under 17 years of age.
There were also the affidavit of the father stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age.
These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam.
As against this the learned Judges apparently held that Kaniz Fatima was over 18 years of age.
They relied upon what was said to have been mentioned in a report of the Doctor who examined Kaniz Fatima, though that report was not before them.
Reference to it was made in the affidavits of Mahesh and the Sub Inspector which were both hearsay and not admissible under the Evidence Act in proof of the contents of a document.
The primary documentary evidence ought to have been summoned.
The High Court thus reached the conclusion about the majority without any evidence before it in support of it and in the face of direct evidence against it.
With regard to the marriage, the learned Judges referred to the denial by the appellant on personal knowledge that conversion to Hinduism or marriage had taken place but they did not look into the affidavits of Mahesh himself on the subject.
These affidavits create some doubt.
Mahesh stated that he first met Kaniz Fatima on the 25th October, 1959 and that they fell in love with each other and decided to marry but "there were hurdles in their way" and marriage with the "consent of their respective parents became impossible".
Ram Nath 's affidavit (part of which even Mahesh accepted) showed that Mahesh 's father was dead and his mother had remarried.
There would have been very little difficulty with regard to his parents, if there were any.
The question of the consent of the parents of Kaniz Fatima never arose.
The marriage surprisingly enough was said to have taken place two months after the first meeting and the date mentioned was Dec. 25, 1959.
The 101 affidavit of the appellant was that 25th December, 1959 was a holiday and Kaniz Fatima was with him and that no conversion or marriage had taken place that day.
The appellant 's affidavit on personal knowledge that no marriage had taken place was therefore a proper affidavit.
It could not be stated that he could not swear to such a fact on personal knowledge.
The affidavits of Mahesh filed from time to time showed contradictions which apparently went unnoticed.
In his first affidavit filed with the petition he stated that Kaniz Fatima and he had decided to get married "secretly" and that the marriage was done without the knowledge of the parents of either party to the marriage and that he and Kaniz Fatima met after marriage "only clandestinely".
In another affidavit he stated that the marriage took place "at the residence of the applicant amidst the respectable persons of the Mohalla and the community" which could hardly be called a 'secret ' marriage.
In the same affidavit he also stated that since marriage Kaniz Fatima and he "were living together and cohabited in the aforesaid premises" and that it was only "after the lapse of four months" that Kaniz Fatima was taken away from his house.
His exact words have been reproduced from his affidavits.
This contradiction was pointed out in the affidavits of the appellant but the learned Judges declined to go into it because they were of opinion that the question of marriage and other questions arising therefrom were irrelevant.
The learned Judges did not see that even the eligibility of Mahesh to marry Kaniz Fatima was called in question because it was alleged on affidavit that he had a wife already living.
Under sections 5 and 11 of the Hindu Marriage Act (XXV of 1955) a second marriage, with a previous married wife living, is null and void.
Mahesh admitted that he was previously married but he stated that he had divorced his wife according to the custom of the caste and that his former wife married another person and was living with him.
The learned Judges referred to these facts and merely stated that as he was a Kori or Kachhi, divorce was possible but did not try to 102 ascertain whether divorce as alleged had taken place or not.
These were some of the circumstances which remained undetermined when the Court ordered the production of the girl in Court.
There is no doubt that the proceeding is a discretionary one.
Whether the Court feels satisfied with one affidavit or with another is a matter mainly of its opinion and conviction.
The learned Judges must have felt impressed by the affidavit of Mahesh, because there was nothing else before them in support of his version.
They did not ask him to produce affidavits from the respectable persons of the "Mohalla and community" before whom the marriage and conversion was said to have taken place or even to produce the photograph which he asserted was taken of Kaniz Fatima and himself by a photographer, Inspite of this if they ordered the production of Kaniz Fatima they acted with jurisdiction.
Even if some other person may consider the order inexpedient, the order had to be carried out unless it was impossible for the appellant to comply with it.
For his refusal to comply with it he has been punished and we need express no sympathy with him but we cannot help expressing a sense of doubt about the truth of some of the statements of Mahesh in his affidavits.
In our opinion the writ nisi in this case for the production of Kaniz Fatima should have been preceded by some more enquiry.
It is wrong to think that in habeas corpus proceedings the court is prohibited from ordering an inquiry into a fact.
All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received, if the Court requires it.
No such absolute rule was brought to our notice.
It may be that further evidence would have borne 'out what Mahesh stated and then the order could always be passed for the production of Kaniz Fatima; but if the evidence did not bear out what Mahesh alleged then the order which the appellant disobeyed and for which he has to suffer 103 imprisonment would never have been passed.
The learned Judges failed to notice that Mahesh 's affidavit was that she was pregnant 'for 6 months and not as they state that she ran away early in June 1960 because she became pregnant.
It would be difficult to hide such an advanced pregnancy till June 20, 1960 when she, left the house.
It remains to mention that Mahesh made several other wild assertions which he swore on personal knowledge of whom a few are quoted here as illustrations: ". . . .
They in fact want to marry the deponent 's wife to some person belonging to their own community and religious order, knowing it full well that the deponent has legally wedded Smt.
Kaniz Fatima and both of them were living together as husband and wife." "That the parents of the deponents wife wish to procure abortion of the conception which she is presently carrying and thereby cause criminal mischief to the deponent 's married life and happiness and marry her again to some other person of their caste and community and religious order.
" "That the deponent further apprehends that the police of police station Kotwali in league with the parents of the deponent 's wife are detaining her against her wishes, illegally and forcefully with a view to use her for immoral and criminal inter course and purpose.
" These statements some of which could not be true to his personal knowledge went without comment.
The aftermath may now be mentioned.
Mahesh did not appear in this Court.
The notice issued by the Supreme Court to Mahesh was returned with the endorsement that he had left the house without leaving an address behind.
As a result of these proceedings, we were informed the police dropped the criminal case.
The petition for habeas corpus was not renewed or pressed again in the High Court.
Mahesh apparently ceased to take any interest in this case, his wife 104 and his child for whose safety he was so solicitous.
Mahesh saved himself from penal consequences if his act in any way had amounted to a crime, and the appellant in trying to save his daughter from him overreached himself and suffered penalty under the law.
The High Court relied upon certain cases and Mr. N.C. Chatterjee attempted to distinguish them.
The cases referred to by Mr. Chatterjee were The Queen vs Barnardo(1), The Queen vs Barnardo(2), and Thomas John Barnardo vs Mary Ford(3).
We do not consider it necessary to refer to them because the principles on which a person is released from private detention and custody are well settled and also well known.
The High Court can always order the production of the body of a person illegally detained and can punish disobedience of its order by attachment and commitment.
There is neither doubt nor complexity in this proposition, once it is held that the disobedience was wailful.
We pass no order in the other appeal but we hope that if Mahesh renews the petition, the High Court will put him to strict proof of his allegations regarding the age, the conversion of Kaniz Fatima and his marriage with her and his lack of interest in her welfare for over three years before ordering a second time that Kaniz Fatima be brought into Court.
No. 227 of 1960.
Dismissed.
No. 228 of 1960.
No orders passed (1) 23 Q.B.D., p.305.
(2) 24 Q.B.D., p.283.
[/INST]The High Court of Calcutta had separately allotted rooms in the Court premises to the Barristers for use and occupation for their Bar Library Club, to Advocates other than Barristers for their Bar Association and to the Attorneys for their Incorporated Law Society.
The petitioners, who were Advocates of the Calcutta High Court and generally practiced on its Original Side and were called to the English Bar, had not read for a period of 12 months in the Chambers of a practising Barrister in England or in Calcutta as required by the rules of the Original bide but applied for becoming members of the Bar Library Club and their applications were refused.
Their representation to the Chief Justice was also refused.
On their application under article 32 the Constitution this Court issued a Rule against the State of West Bengal and the Chief Justice.
The Joint Secretaries of the Bar Library Club were later on added as parties and the Bar Association appeared as intervener.
The result of this intervention of the Bar Association was that the petition as it originally stood was broadend into a claim to abolish the exclusiveness of the Bar Library Club in favour of all other Advocates as was indicated in the representation made by the Association to the Chief Justice of Calcutta High Court which to the following effect : 46 We on behalf of the Bar Association humbly represent that no separate space may be allotted to the said group of advocates who call themselves Barristers but who practice in this Court as Advocates and are therefore in no way to be separately treated from the Advocates in general, and this allotment of separate rooms to the Bar Library Club offends against article 14 of the Constitution.
We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all the Advocates practicing in this High Court and the rooms now occupied by Bar Library Club may be allotted to such Bar Association.
" While the matter was pending in this Court, the Bar Library Club altered its rules so as to admit all such Advocates as would undertake only to plead and not to act and the Attorney General, appearing on its behalf, gave the assurance that there would be no discrimination, all Advocates who undertook not to act would be eligible for admission to the club.
This position was agreed to by the Joint Secretaries representing the Bar Library Club.
field: This altered position meant a great improvement on the existing one and no better could be expected in the presents proceeding.
Regard being had to the historical growth of the three sections of the Bar in the Calcutta High Court, namely, (1) those who only pleaded, (2) those who both pleaded and acted, and (3) those who only acted, it could not be said that classification was unreasonable or that the grant of separate accommodation to them amounted to a denial of equality before the law.
Since the Bar Library Club had agreed to change its rules so as to conform exactly to the first classification, admission to it would be governed by rules which would be common to all lawyers who wanted to plead only and, consequently, there was no reason to interfere with the separate grant of accommodation by the court to the three sections.
If the Bar Library Club failed to carry out the undertaking given by it would be the duty of the Chief Justice to frame such rules as were necessary to carry out the purpose for which the accommodation was granted and to see that there was no violation of equality.
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<s>[INST] Summarize the judgementAppeal No. 2293 of 1970.
45 Appeal by special leave, from the order dated May 4, 1970 of the Central Registrar of Co operative Societies, New Delhi in Appeal No. CR/1/70.
Harbans Singh, for the appellant.
Remeshwar Dial and A.D. Mathur, for the respondent.
The Judgment of the Court was delivered by Sikri, C. J.
This appeal by special leave is against the order of the Central Registrar of Cooperative Societies New Delhi dismissing the appeal filed by Panchshila Industrial Cooperative Society (Multi Unit) appellant before us against the award passed by the Arbitrator (Deputy Registrar of Cooperative Societies Rohtak) dated October 7, 1969, in respect of the dispute between the Gurgaon Central Cooperative Bank Ltd., Gurgaon respondent before us, and the appellant.
The Central Registrar held that he was not the appropriate appellate authority against the award in question.
The only question which arises before us is whether the Central Registrar was the appropriate authority on the facts of this case.
The relevant facts are these.
The respondent Bank approached the Registrar of Cooperative Societies Haryana for resolving a dispute between the Bank and one of its members appellant before us.
The Registrar by his order dated February 17, 1968, in exercise of the powers vested in him under section 56 of the Punjab Co operative Societies Act, 1961, referred the dispute to the Deputy Registrar Cooperative Societies Rohtak for decision.
The arbitrator gave the award on October 7, 1969, directing that the appellant do pay to the respondent in all Rs. 16,05,658 20 together with interest at the rate of six and a half per cent per annum until the realisation of the principal amount viz. Rs. 11,52,535 00.
The appellant as mentioned above filed an appeal against this award before the Central Registrar.
The respondent Bank is a co operative society governed by the provisions of the Punjab Co operative Societies Act 1961.
Section 55(1) of this Act inter alia provides that if any dispute touching the constitution management or the business of a co operative society arises between a member 46 and the society such dispute shall be referred to the Re gistrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.
Section 55(2) provides that for the purposes of sub section (1) a claim by the society for any debt or de mand due to it from a member or the nominee heirs or legal representatives of a deceased member whether such debt or demand be admitted or not, shall be deemed to be a dispute touching the constitution, management or the business of the co operative society.
Sub section (3) of section 55 provides that "if any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution management or the business of a cooperative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.
" There is no doubt that the dispute between the respondent Bank and the appellant fell within section 55 and was properly referred to arbitration under that section.
It is however, contended that the appellant was registered in December 1955 under the Punjab Cooperative Societies Act, 1955, and by virtue of the , and section 5A of the Multi Unit Co operative Societies Act, 1942, the appellant has ceased to be governed by the provisions of the Punjab Co operative Societies Act because it has become a multi unit co operative society.
There is no doubt that by virtue of the , and section 5A of the Multi Unit Co operative Societies, Act, 1942, the appellant has become a multi unit co operative society and the Multi Unit Co operative Societies Act applies to it.
But that Act is for the incorporation, regulation and winding up of co operative societies with objects not confined to one State, and it has no impact on section 55 of the Punjab Co operative Societies Act, 1961, inasmuch as the appellant remains a member of the co operative society, namely, the respondent Bank.
There is nothing in the provisions of the Multi Unit Co operative Societies Act to indicate that a multi unit co operative society cannot be a member of a co operative society governed by the Punjab Act of 1961.
If the appellant continues to be a member, then the terms of section 55 apply and a dispute can be referred to arbitration under that section.
An appeal against the at award lies under section 68 of the Punjab Act of 47 1961 to the Government of the decision or order was made by the Registrar, and to the Registrar if the decision or order was made by any other person.
It is quite clear therefore, that the Central Registrar had no jurisdiction to hear the appeal.
The learned counsel next contends that the Central Registrar should not have dismissed the appeal but returned the memorandum of appeal for presentation to the proper authority.
There is no statutory provision enabling the Central Registrar to do so.
At any rate, if an appeal is filed before the appropriate authority under the Punjab Co operative Societies Act, 1961, that authority will no doubt take into consideration the provisions of section 14 of the , read with section 29(2) and decide whether the appeal should be entertained or not.
In the result the appeal fails and is dismissed with costs.
K.B.N. Appeal dismissed.
[/INST]The respondent bank is a co operative society governed by the Punjab Co operative Societies Act, 1961.
A dispute between the bank and the appellant, one of its members, was referred by the Registrar of Co operative Societies, in exercise of the powers vested in him by section 55 of the Act, to the Deputy Registrar, Co operative Societies for arbitration.
The appellant filed an appeal against the award before the Central Registrar of Co operative Societies.
The Central Registrar dismissed the appeal holding that he was not the appropriate appellate authority, under the Act.
In appeal to this Court the appellant con tended that it was registered in 1955 under the Punjab Co operative Societies Act 1955 and by virtue of the and section 5(A) of the Multi Unit Co operative Societies Act, 1942, it had ceased to be governed by the provisions of the Punjab Co operative Societies Act, because, it had become a multi unit co operative Society.
Dismissing the appeal, HELD : There is nothing in the provisions of the Multi unit Cooperative Societies Act to indicate that a multi unit co operative society cannot be a member of a co operative society governed by the Punjab Act of 1961.
The multi unit co operative societies Act is for the incorporation, regulation and winding up of co operative societies with objects not confined to one State and it has no impact on section 55 of the Punjab Co operative Societies Act, 1961, in as much as the appellant remains a member of the Co operative Society, namely, the respondent bank.
If the appellant continues to be a member then the terms of section 55 apply and a dispute can be referred to arbitration under that section.
An appeal against that award lies under section 68 of the Punjab Act of 1961 to the government if the decision or order was made by the Registrar and to the Registrar if the decision or order is made by any other person.
Therefore the Central Registrar had no jurisdiction to hear the appeal.
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<s>[INST] Summarize the judgementAppeal No. 195 of 1954.
Appeal by special leave from the judgment and order dated the 20th May, 1953 of the CustodianGeneral of Evacuee Property, New Delhi in Revision No. 387 R/Judl/53.
Achhru Ram, (Ganpat Rai, with him) for the appellant.
C. K. Daphtary, Solicitor General of India, (Porus A.Mehta and R. H. Dhebar, with him) for respondents Nos. 1 & 2. 1955.
October 28.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the order of the Custodian General of Evacuee Property dated the 20th May, 1953, revising an order of the Additional Custodian of East Punjab, Delhi, dated the 20th March, 1952.
The two questions raised before us on the facts and circum stances, to be stated, are (1) whether the Custodian General had the revisional power which he purported to exercise, and (2) was the order of the Custodian General on its merits such as to call for interference by this Court.
The appellant before us, one Mrs. Indira Sobanlal, is a displaced person from Lahore.
She was the owner of a house.
at Lahore known as 5, Danepur Road.
Malik Sir Firoz Khan Noon of West Pakistan owned 766 bighas of agricultural land in a village called Punjab Khore within the State of Delhi.
An oral exchange is said to have taken place between these two.
, of the said properties, on the 10 th October, 1947.
In pursuance of that exchange Malik Sir Firoz Khan Noon is said to have taken possession of the Danepur Road House.
The appellant is also said to have been put in possession of the said agricultural lands in Punjab Khore presumably by way of attornment 1120 of tenants who were in actual cultivating possession of the lands.
Under section 5 A of the East Punjab Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as amended in 1948 and applied to the State of Delhi, such a transaction required confirmation by the Custodian.
In compliance with this section the appellant made an application on the 23rd February, 1948, to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the above transaction of exchange and of the consequent transfer to her of the property in agricultural land.
In view of certain rules which came into force later and which prescribed that the application was to be in a set form furnishing certain particulars, the appellant filed an amended application dated the 14th August, 1948, furnishing the required particulars.
This application was not disposed of by the Additional Custodian, for reasons not clear on the record, until the 20th March, 1952.
On that date he passed an order confirming the exchange.
Meanwhile, however, a, proposal was put up to the Additional Custodian by his Revenue Assistant to allot agricultural lands of the village Punjab Khore, including those covered by this exchange, to a number of refugee cultivators.
The proposal was approved by the Additional Custodian on the 12th June, 1949.
In pursuance thereof a detailed allotment was made to twenty six individual allottees on the 27th October, 1949.
There is a report of the Rehabilitation Patwari dated the 27th February 1950, on the record showing that the allottees entered into possession of the land and cultivated their respective lands and settled down in the village.
After the order confirming the exchange was passed by the Additional Custodian on the 20th March, 1952, the appellant filed an application on the 5th May, 1952, asking to be placed in possession, and for a warrant of delivery of possession to be issued against the various allottees and tenants of the land.
The Naib Tehsildar recommended that possession may be given to the appellant and that the Patwari may be informed accordingly to take the necessary action in the matter.
But it does 1121 not appear from the record whether this was done, or whether possession was in fact delivered.
At this stage, a notice under section 27 of the (Central Act XXXI of 1950), appears to have been issued to the appellant by the Custodian General to show cause why the order of the Additional Custodian dated the 20th March, 1952, confirming the exchange and the further orders dated the 20th and 28th July, 1952, sanctioning mutation and other consequential and incidental orders made in connection therewith be not set aside.
This notice appears to have been issued asking the appellant to show cause on the 4th May, 1953.
The case was adjourned to the 12th May, 1953, at the request of counsel for the appellant and thereafter a more detailed notice dated the 14th May, 1953, was issued setting out the various grounds on which the previous orders were sought to be set aside.
The learned Custodian General passed the order now under appeal on the 20th May, 1953, setting aside the order of confirmation.
He directed the Custodian to decide the case after giving notice to all those who might be affected by the confirmation of this transaction.
As the earlier part of his order shows, the reference to the persons affected was to those who were allotted the lands in question by virtue of the order of the Additional Custodian of the year 1949 above referred to.
To appreciate the first question that has been raised as to the validity of the exercise of revisional powers by the Custodian General on the above facts, it is necessary to set out the course of the relevant legislative measures from time to time.
To meet the unprecedented situation of sudden migration of vast sections of population on a large scale from West Punjab to East Punjab and vice versa, leaving most of the properties which they had, moveable and immoveable, agricultural and nonagricultural, the concerned Governments bad to take wide legislative powers to deal with the situation, to set up the necessary administrative machinery, and to evolve and give effect to their policies in regard thereto from time to time.
The earliest of these legislative measures so far as we are concerned, was the East Punjab Evacuees (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), which came into force on the 12th December, 1947.
This Act was amended by the East Pun jab Evacuees ' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and later by East Punjab Evacuees ' (Administration of Property) (Amendment) Act, 1948, (East Punjab Act XXVI of 1948), which inserted two new sections, 5 A and 5 B I prescribing the requirement of confirmation Of transactions relating to eva cuee property and providing a right of appeal or revision therefrom.
These sections were specifically made applicable to transactions on or after the 15th August, 1947.
The above Punjab Legislative measures were extended to the State of Delhi by Central Government notifications under the Delhi Laws Act, dated the 29th December, 1947, the 28th January, 1948, and the 22nd April, 1948, respectively.
In so far as these measures applied to Chief Commissioners ' Provinces they were repealed by the Administration of Evacuee Property (Chief Commissioners ' Provinces) Ordinance, 1949, (Central Ordinance No. XII of 1949) which came into force so far as Delhi is concerned on the 13th June, 1949.
This Ordinance, in its turn, was repealed and a fresh Central Ordinance came into force in its place, applicable to all the Provinces of India except Assam and West Bengal.
That was Administration of Evacuee Property Ordinance.
, 1949, (Central Ordinance No. XXVII of 1949), which came into force on the 18th October, 1949.
This Central Ordinance in its turn was repealed and replaced by the (Central Act XXXI of 1950) which came into force on the 17th April, 1950.
It is necessary to notice at this stage that until the Central Ordinance XXVII of 1949 was passed, the Evacuee Property law was regulated by the respective Provincial Acts and were under the respective Provincial administrations.
Central Ordinance 1123 No. XXVII of 1949 provided for a centralised law and centralised administration which was continued by Central Act No. XXXI of 1950.
One of the main steps taken for such centralised administration was to create the office of Custodian General with powers of appeal and revision as against the orders of Provincial Custodians.
Section 5 of the Central Ordinance No. XXVII of 1949 authorised the Central Government to appoint a Custodian General of Evacuee Property in India for the purpose of discharging the duties imposed on him by or under the Ordinance, while the appointment of Provincial Custodians, Additional, Deputy or Assistant Custodians, was still left to the various Provincial Governments.
These provisions were continued by sections 5 and 6 of Central Act XXXI of 1950.
As regards the transactions by evacuees relating to evacuee property, the first legislative interference in East Punjab and Delhi appears to have been by virtue of East Punjab Evacuees (Administration of Property) (Amendment ') Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and the East Punjab Evacuees ' (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948) which inserted two new sections 5 A and 5 B into the East Punjab Act XIV of 1947.
The said sections were as follows: "5 A. (1) No sale, mortgage, pledge, lease, exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person, on or after the fifteenth day of August, 1947, shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.
(2) An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him.
(3) The Custodian shall reject any application made after the thirty first day of March, 1948 or after 142 1124 the expiration of two months from the date the transaction was entered into, whichever is later.
(4) The Custodian shall hold a summary enquiry into an application, which is not rejected under subsection (3) and may decline to confirm the transaction if it appears to the Custodian that (a) the transaction was not a bona fide one for valuable consideration; or (b) the transaction is in the opinion of the Custodian prejudicial to the prescribed objects; or (c) for any other reason, to be given by the Custodian in writing, the transaction ought not to be confirmed.
(5)If the Custodian confirms the transaction, he may confirm it unconditionally or subject to such conditions and terms as he may consider proper.
(6)The Custodian, if the order is not pronounced in the presence of the applicant, shall forthwith give notice in writing to the applicant of any order passed by him under sub sections (3), (4) or (5).
" 5 B. If the original order under section 5 A is passed by an Assistant or Deputy Custodian of Evacuee Property, any person aggrieved by such order may appeal within sixty days from the date of the order to the Custodian of ]Evacuee Property who may dispose of the appeal himself or make it over for disposal to the Additional Custodian of Evacuee Property; and subject only to the decision on such appeal, if any, the order passed by the Assistant or 'Deputy Custodian of Evacuee Property, or any original or appellate order passed by the Custodian or Additional Custodian of Evacuee Property shall be final and conclusive".
It will be seen that these two sections enjoined that transfers by an evacuee or intending evacuee relating to his property from and after the 15th August, 1947, required confirmation and provided for appeal or revision from the orders passed on applications therefor and subject thereto, such orders were made final and conclusive.
The requirement as to confirmation has been substantially continued in more or less the same form by sections 25, 38 and 40 respectively of 1125 the successive legislative measures with certain modi fications which are not material for this case.
But so far as the appealability or revisability of an order passed on an application for confirmation is concerned.
, there have been changes from: time to time.
It will be seen from section 5 B of the East Punjab Act, XIV of 1947, as quoted above, that any original order passed by the Custodian or Additional Custodian is not subject to appeal or revision and it is specifically declared to be final and conclusive.
Central Ordinance No. XII of 1949 by section 30(1) (b) thereof provided for an appeal to the High Court against an original order of a Custodian or Additional Custodian or authorised Deputy Custodian but there was no provision for revision of such an order.
Under the Central Ordinance No. XXVII of 1949 the position was substantially different.
Section 24 thereof, inter alia, provided that.
any person aggrieved by an order made under section 38 (which corresponds to the previous section 5 A of the East Punjab Act XIV of 1947) may prefer an appeal in ,such manner and within such time as may be prescribed, to the Custodian General where the original order has been passed by the Custodian, Additional Custodian or an Authorised Deputy Custodian.
Section 27 thereof provided for revisional powers of the Custodian General but it was specifically confined to appellate orders and there was no power given thereunder for revision by the Custodian General of an original order passed by the Custodian.
But under Central Act XXXI of 1950 which repealed and replaced this Ordinance the position became different.
The provision for appeal under section 24 thereof was virtually the same as before, in so far as it is relevant here.
But as regards revision, however, section 27 of the Act provided for the revisional powers of the Custodian General in the following terms: "27.
(1) The Custodian General may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding in which any district judge or Custodian has passed an order for the purpose of satisfying him 1126 self as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: Provided that the Custodian General shall not pass an order under this sub section prejudicial to any person without giving him a reasonable opportunity of being heard. . . . . . . " The question relating to the validity of the revisional powers exercised by the Custodian General in the present case arises with reference to the provisions above mentioned.
It is not disputed that Malik Sir Firoz Khan Noon was an evacuee.
Nor is it disputed that this property in Punjab Khore which was the subject matter of the exchange was evacuee property.
Though the exchange in question was alleged to have taken place on the 10th October, 1947, at a time when there was no restriction against any evacuee dealing with the property he left behind, it is indisputable that section 5 A of the East Punjab Act XIV of 1947 which has been specifically made retrospective from the 15th August, 1947, operates in respect of the present transaction also.
It, therefore, requires confirmation under the said section and under the corresponding sections in the subsequent legislative measures in this behalf.
It was in compliance with this requirement that the appellant made an application for confirmation on the 23rd February.
1948, and that a subsequent amended application was filed on the 14th August, 1948.
It is these applications that were disposed of on the 20th March, 1952, by the Additional Custodian, Delhi, by an order confirming the exchange, which has since been revised by the Custodian General on the 20th May, 1953.
The main contention of the learned counsel for the appellant is to the powers which are vested in the Custodian General to revise the original orders of the Custodian or Additional Custodian under section 27 of the Central Act XXXI of 1950 are not applicable to an order passed by the Custodian or Additional 1127 Custodian on an application made long prior to the time when the office of the Custodian General was set up and he was clothed with powers of revision.
It is urged that on the date when the application for confirmation was first made on the 23rd February, 1948, an order passed under section 5 A by the Custodian or Additional Custodian is final and con clusive under section 5 B.
It is strongly urged that the subsequent repeal and re enactment of these provisions cannot affect the right vested in the appellant to obtain a final and conclusive order from the Custodian or Additional Custodian on her application for confirmation.
Section 6 of the General Clauses Act and the Privy Council case in the Colonial Sugar Refining Co. Ltd. vs Irving(1) were relied on in support of this contention.
To determine the validity of this contention, it is necessary to trace the course of the various relevant statutory provisions from time to time which repealed the prior corresponding legislative measures and to determine the effect thereof.
The East Punjab Act XIV of 1947 was replaced by the Central Ordinance No. XII of 1949 relating to Chief Commissioners ' Provinces.
Section 40 thereof which repealed the prior Act was as follows: "40.
(1) The East Punjab Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as in force in Ajmer Merwara and Delhi, is hereby repealed.
(2)Notwithstanding such repeal, anything done or any action taken in the exercise of any power conferred by the Act aforesaid shall, in relation to the Provinces of Ajmer Merwara and Delhi, be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty` incurred or proceeding commenced under the said Act shall be deemed to be a penalty incurred, or proceeding commenced under this Ordinance as if this Ordinance were in force on the day when such thing was done, action taken, penalty incurred or proceeding commenced".
When this Ordinance was in turn repealed by (1) 1128 Central Ordinance No. XXVII of 1949, the repealing section 55 was as follows: "55.
(1) The Administration of Evacuee Property Ordinance, 1949 (XII of 1949), as in force in the Chief Commissioners ' Provinces is here by repealed.
(2). . . . . (3)Notwithstanding the repeal by this Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything done or any action taken in the exercise of any power conferred by that Ordinance or law shall be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty incurred or proceeding commenced under that Ordinance or law shall be deemed to be a penalty incurred or proceeding commenced under this Ordinance as if this Ordinance were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced".
Ordinance No. XXVII of 1949 was in its turn repealed by Central Act XXXI of 1950.
This Act was amended by an Ordinance and later by an Act of, the same year.
Section 58 is the repealing provision of this Act as so amended.
The material portion thereof is as follows: "58.
(1) The Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) is hereby repealed.
(2). . . . . . (3)The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949). . shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken".
Thus in the transition of the Evacuee Property law 1129 relating to Delhi, from the East Punjab Act XIV of 1947 to the present Central Act XXXI of 1950, there have been three repeals.
The first two repealing provisions are in almost identical terms but the third is somewhat different.
The difference is in two respects.
(1) The provision in the previous repealing sections that "any penalty incurred or proceeding commenced under the repealed law shall be deemed to be a penalty incurred or proceeding commenced under the new law as if the new law were in force on the day when the penalty was incurred or proceeding commenced" is now omitted.
(2) The provision that "anything done or any action taken in exercise of any power conferred by the previous law shall be deemed to have been done or taken in exercise of the powers conferred by the new law as if the new law were in force on the day when such thing was done or action taken" is continued.
But it is specifically provided that this is subject to the repeal not affecting the "previous operation of the repealed law" which in the context clearly means the previous operation of the repealed law in respect of "anything done or any action taken".
The question thus for consideration is what is the result brought about by these provisions.
Before proceeding to determine it, it is desirable to consider whether section 6 of the General Clauses Act can be relied on.
The position as regards section 6 of the General Clauses Act in the case of repeal and re enactment has been considered by this Court in State of Punjab vs Mohar Singh( ') and laid down as follows at page 899: "Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears.
In the case of a simple repeal there is scarcely any room for expression of a contrary opinion.
But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.
(1) ; , 899.
1130 The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.
We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation.
Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or con trary to the provisions of the section.
Such incom patibility would have to be ascertained from a consideration of all the relevant provisions of the new law. . . ".
In the present case sub section (3) of section 58 of Central Act XXXI of 1950 purports to indicate the effect of that repeal, both in negative and in positive terms.
The negative portion of it relating to "the previous operation" of the prior Ordinance appears to have been taken from section 6(b) of the General Clauses Act, while the positive portion adopts a "deeming" provision quite contrary to what is contemplated under that section.
Under the General Clauses Act the position, in respect of matters covered by it, would have to be determined as if the repealing Act had not been passed, while under section 58 of Central Act XXXI of 1950, the position so far as the positive portion is concerned has to be judged as if the repealing Act were in force at the earlier relevant date.
Therefore where, as in this case, the repealing section which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of section 6 of the General Clauses Act.
We are, therefore, of the opinion that the said section cannot be called in aid in this case.
Now, as to the meaning of section 58(3) of Central Act XXXI of 1950, it must be admitted that this is not free from difficulty.
This kind of provision in a 1131 repealing Act appears rather unusual.
Learned counsel for the appellant urges that the positive portion of this provision, i.e., "anything done or any action taken in exercise of any power conferred by or under, the Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken" applies only to purely administrative matters and that his case falls within the scope of the first portion, viz., "the repeal. . shall not affect the previous operation of the (repealed) Ordinance".
His contention is that the application for, confirmation which was made by the appellant in 1948 and which remained pending until Act XXXI of 1950 came into force and superseded the earlier legislation in this behalf, had to be disposed of in accordance with sections 5 A and 5 B of the East Punjab Act XIV of 1947, as amended in 1948; that the order of confirmation passed by the Additional Custodian in such a pending application was not open to appeal or revision but became final and conclusive.
It is urged that on the filing of the application in 1948, the appellant got a vested right to have it determined under section 5 A with the attribute of finality and conclusiveness under section 5 B attaching to such determination.
According to the learned counsel this follows from the "previous operation" of the repealed law and is in consonance with the principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. vs Irving(1).
It appears to us that these contentions are unsustainable.
Colonial Sugar Refining Co. Ltd. vs Irving(1) relates to the case of a right of appeal against an order passed or to be passed in a pending action.
Their Lordships treated the right of appeal to a superior tribunal in a pending action as an existing right and held that the suitor cannot be retrospectively deprived of it except by express words or by necessary implication.
This doctrine was affirmed by the Privy Council in Delhi Cloth & General Mills Co. Ltd. (1) 143 1132 vs
Income Tax Commissioner, Delhi(1) in its application to the converse case in the following terms: "Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights".
It may be noticed that in the case in Delhi Cloth & General Mills Co. Ltd. vs Income Tax Commissioner(1), the orders of the High Court from which appeals were sought to be filed to the Privy Council were dated the 6th January, 1926 and 12th January, 1926.
As the Indian Income tax Act stood at the time and according to the interpretation of section 66 thereof by the Privy Council in Tata Iron & Steel Co. vs Chief Revenue Authority, Bombay(2) there was no appeal to the Privy Council.
The legislature by an amendment of the Income tax Act, which came into force on the 1st April, 1926, inserted therein section 66 A and gave a right of appeal against such orders as provided therein.
In this situation the Privy Council repelled the contention that the litigant could avail himself of the new provision by pointing out the finality of the orders fought to be appealed against and referring to it as an existing right.
This is obviously so because finality attached to them.
, the moment orders were passed, prior to the new Act.
In the present case, the position is different.
The action was still pending when Central Act XXXI of 1950 came into force.
No order was passed which could attract the attribute of finality and conclusiveness under section 5 B of the East Punjab Act XIV of 1947.
Further the possibility of such finality was definitely affected by the repealing provision in Central Ordinance No. XII of 1949 and Central Ordinance No. XXVII of 1949, which specifically provided that a pending action was to be deemed to be an action commenced under the new Ordinance as if it were in force at the time and therefore required to be continued under the new Ordinances.
Each of these Ordinances provided for (1) Lahore 284.
(2) (1923] L.R. 50 I.A. 212.
1133 appeal against such an order and the second of them provided for the exercise of revisional power against an appellate order of the Custodian.
Learned counsel for the appellant contends that, even so, the finality and conclusiveness, which would have attached to an order made under section 5 A, if made before Ordinance XII of 1949 was promulgated, was affected only to the extent of its being subject to an appeal and not to revision.
But once the attribute of finality in respect of such an order is affected by subsequent legislation, it does not appear to be of consequence that it was affected first by a provision for appeal and later by provisions for appeal and revision.
It is difficult to see that such provisions, in those cir cumstances, are anything more than alterations in procedure.
However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action though we do not so decide no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action.
By the very terms of section 5 B of East Punjab Act XIV of 1947, finality attaches to it on the making of the order.
Even if there be, in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right.
It does not accrue until the determination is in "fact made, when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. vs IncomeTax Commissioner(1).
We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. vs Irving(2) cannot be invoked in support of a case of the kind we are dealing with.
Nor can this be brought under the ambit of the phrase "previous operation of the repealed law".
What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the "future operation of the previous (1) Lahore 284, (2) 1134 law".
There is no justification for such a construction.
Besides, if in respect of the pending application in the present case, the previous repealed law is to continue to be applicable by virtue of the first portion of section 58(3) the question arises as to who are the authorities that can deal with it.
The application can be dealt with by the Custodian and on appeal by the Custodian General only as functioning under the previous law.
But as such Custodian or Custodian General they have disappeared by virtue of the repeal.
It is only the second portion of section 58(3) which continues them as though the appointments were made under the new Act a position which could scarcely be controverted.
To the extent of the future operation, if any, of the repealed law they can have no function.
Indeed, a comparison of the wording of section 58 of Act XXXI of 1950 with the wording of section 6 of the General Clauses Act would show that if the legislature intended either that pending proceedings were to be continued under the previous law or that anything in the nature of vested right of finality of determination or some right akin thereto was to arise in respect of such pending proceedings, the negative portion of section 58(3) would not have stopped short with saving only the "previous operation" of the repealed law.
It would have borrowed from out of some portions of the remaining sub sections (c), (d) and (e) of section 6 of the General Clauses Act, and provided in express terms for the continuance of the previous law in respect of pending pro ceedings.
Obviously no particular sub section of section 6 of the General Clauses Act could be borrowed in toto as that would contradict the positive portion of section 58(3) of Act XXXI of 1950 and would be inconsistent with the idea underlying it.
We are,therefore, clearly of the view that the appellant cannot call in aid the principle of the case in Colonial Sugar Refining Co. Ltd. V. Irving(1), nor can his case fall within the ambit of the first portion of sub section (3) of section 58 of Act XXXI of 1950.
The next question for consideration is how the (1) 1135 second and positive portion of section 58(3) of Act XXXI of 1950 is to be understood.
This portion says that "anything done or any action taken in exercise of any power conferred by or under the (repealed) Ordinance, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken".
To appreciate the meaning of this it is desirable to have a general idea of the scheme of the repealed Ordinance, the powers exercisable thereunder, and the nature of the things that may be done, or action that may be taken, thereunder.
The powers exercisable are to be gathered from various sections and broadly speaking fall under the follow ing categories.
To make appointments sections 5 and 6. 2.
To make enquiries sections 7, 16, 19 and 38 and to make declarations or issue notifications as a result thereof.
To make various kinds of consequential or administrative order such as those under sections 9, 10, 11, 12 and 21. 4.
To hear and dispose of appeals, reviews or revisions sections 24, 25, 26 and 27.
5.Power of the Central Government, to exempt, to give directions, to take action with regard to evacuee property, to delegate powers and to make rules sections 49, 50, 51, 52 and 53.
In addition there are provisions which bring about various consequences such as vesting in the Custodian, valid discharge by payment to the Custodian, attachment, and so forth, sections 7 (2), 8, 11, 13, 16 (3), 19 (3), 20 and 22, etc.
The above enumeration is by no means intended to be exhaustive but is merely to illustrate the scheme of the various provisions in the Ordinance with reference to which section 58 of the Act has to be understood.
There are also rules framed by virtue of section 53 of the Ordinance under which various powers may be exercised, things done, and action taken.
If section 58 (3) of Central Act XXXI of 1950 which 1136 repealed the prior Ordinance is understood with reference to the above scheme, there is no reason to confine the operation of the second portion of section 58(3) to administrative action as suggested by learned counsel for the appellant.
Broadly speaking, the second portion of section 58(3) refers to the whole range of, things that may be done, or action that may be taken, under the previous Ordinance and the rules framed thereunder, while the first portion of section 58(3) relates to the legal consequences resulting under the Ordinance or the rules from certain facts or from completed acts or things done thereunder.
Without attempting to be meticulously accurate, it may be stated in general terms, that the scheme underlying section 58(3) appears to be that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the new law except in so far as certain consequences have already ensued or acts have been completed prior thereto to which it is the old law that will apply.
In this view of section 58, the application of the appellant for confirmation pending on the date when Central Act XXXI of 1950 came into force had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 would clearly be subject to the revisional power of the Custodian General under section 27 of the said Act.
It is next contended that the revisional power cannot be exercised when there was an appeal provided but no appeal was filed, that it was open to the Assistant Custodian who appeared before the Custodian General in support of the notice for revision or to the allottees of the property in whose interest the revisional order appears to have been passed, to file an appeal under the Act as persons aggrieved.
Section 27 however is very wide in its terms and it cannot be construed as being subject to any such limitations.
Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under section 27, the Custodian General can exercise revisional powers "for the purpose of satisfying himself as to the legality or 1137 propriety of any order of the Custodian".
We are thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian General is without jurisdiction or is illegal, must fail.
The next question to be considered is as regards the merits of the revisional order of the Custodian General which is under appeal before us.
Learned counsel for the appellant attacked it on various grounds.
He urged that the ground on which the learned Custodian General set aside the Additional Custodian 's order, viz., absence of notice to the prior allottees is wholly untenable.
He contended that the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that they were at best only lessees for three years which was due to expire very shortly after the order of confirmation was passed by the Additional Custodian.
He pointed out that as soon as the application for confirmation was filed on the 23rd February, 1948, general notice by beat of drum and affixture in the locality and by publication in the Indian News Chronicle article was given, that the persons in possession at the time were only the previous tenants on the land, who either attorned to the appellant or left the village, that the allottees came into possession much later and pending the disposal of the confirmation proceedings and presumably subject to its result.
He also pointed out that even when the rules in this behalf came into force under Act XXXI of 1950, it was discretionary with the Custodian to give notice to persons other, than the transferor and transferee, if he considered them to be interested, and urged that since the same officer, Shri R. Dayal, made the allotment as also the confirmation, he must be taken to have exercised his discretion properly in not giving any notice to them, in view of the imminent expiry of the three years term for which they were put in possession.
It is strongly urged that having regard to the above considerations and to the categorical findings of the Custodian General himself that the 1138 transaction which was confirmed, was perfectly bona fide, the setting aside of the order of confirmation against which no appeal was filed by any one, and the consequential disturbance of the vested property rights of the appellant, was in the nature of perverse exercise of revisional power.
The learned Solicitor General appearing for the respondent contended that the finding of the CustodianGeneral about the bona fides of the transaction was only tentative, that the allottees, though provisionally placed in possession for three years had, what has come to be recognised as, a quasi permanent interest, that they had a genuine interest in opposing the confirmation sought, which related to a large tract of agricultural land, and which would reduce the pool of agricultural lands available for rehabilitation of displaced agriculturists and that confirmation of transactions relating to such land was opposed to the policy and directives of the Government and that the confirmation should not, in the circumstances, have been lightly granted by the Additional Custodian without notice to the allottees and a proper consideration of the policies and directives in this behalf.
In reply thereto learned counsel for the appellant urged that the alleged policies or directives are not relevant matters for consideration by the Custodian in these proceedings which must be taken to be quasi judicial, if not judicial, unless such policies or directives are embodied in rules made by the Central Government under section 56(2) (q) and that no such rules were prescribed by the relevant dates and that even the Custodian General himself in his order under appeal discounted the usefulness of any reference to notifications and directives for the purposes of this case.
It was also urged that the matters which could be taken into consideration are regulated by section 40(4) of Act XXXI of 1950 and that clause (c) thereof must be construed as referring to matters ejusdem generis with clauses (a) and (b) But in the view we take of the order under appeal and the course we propose to adopt, we do not wish to express any opinion on the merits of the above arguments.
1139 The order under appeal is one passed by virtue of the wide powers of revision vested in the Custodian General under section 27 of the Act.
The jurisdiction which has been challenged having been found in favour of the Custodian General, this Court would normally be slow to interfere with the order on its merits.
But with respect to the learned CustodianGeneral, his order is such that it is difficult to maintain it.
The learned Solicitor General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself.
It is also difficult together from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitations are.
If it was meant to be an open general remand, as the concluding portion of his order seems to indicate, his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directives to which his attention was drawn by the Assistant ,Custodian, would render it difficult for any Custodian on remand to consider any of those matters.
If so, the remand would appear to serve no substantial purpose.
In the circumstances, and in fairness to the learned Custodian General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration.
On such fresh consideration he will give full opportunity to both sides for presentation of their respective points of view.
If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him.
The learned Custodian General may also consider the feasibility of his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revision in this already protracted matter.
[/INST]According to section 98(1)(a) of the Bombay Industrial Rela tions Act, 1946 a lock out shall be illegal if it is com menced.
or continued in cases where it relates to any indus trial matter specified in Schedule III, Item 6(ii).
Item 6(ii) states "employment including unemployment of persons previously employed in the industry concerned".
On account of financial and other difficulties the appellant laid off workers in some departments of the mill.
After.
a few days the management declared a lock out alleg ing that the workers gheraoed some officers in the mill, started 'dharna ' and behaved in an unruly manner.
The Labour Court, to which the dispute was referred, held that there was no evidence of violence or of gheraoes, that the situation in the mills was not of such a grave nature as called for a lock out and that the management resorted to the lock out on the slightest opportunity in order to avoid payment of compensation, since it was in continuous financial difficulties heading towards a closure and closure would have put the company under obligation to pay compensation.
Dismissing the appeal, HELD: (1) A lock out can be declared for reasons similar to those described in the present notice of lock out.
In that case although it will be lock out in another sense it may not be a lock out within the meaning of section 3(24) of the Act.
That kind of lock out with the avowed object of pre venting violence and threat to life and property may be justified on facts in a given case.
In such a situation it may be difficult to prove that it is an illegal lock out since in an illegal lock out the sole object is to compel the workmen to accept the terms of the employer which the workers consider as unreasonable and oppressive.
[713 F G] But in the instant case though the views of the Labour Court that threats and gheraoes "are the normal behaviour when an occasion like this takes place" should be disap proved, the ultimate conclusion after appreciation of the evidence was not such as would call for interference in an application under article 136 of the Constitution.
[713 H] (2) Though the Act has not defined 'lay out ', even according to the dictionary meaning, lay off means to dis continue work or activity; to dismiss or discharge tempo rarily.
When workers are in employment and they are laid off, that immediately results in their unemployment, howso ever temporary.
and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act.
Since unemploy ment is an industrial matter under item 6(ii) of Schedule Iii of the Act, the lock out which had been found by the Labour Court to have direct connection with lay off is clearly illegal under section 98(1)(a) of the Act.
[715 BC]
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<s>[INST] Summarize the judgementivil Appeal No. 3195 of 1979 etc.
From the Judgment and Order dated 20th June, 1979 of the Kerala High Court in Writ Appeal No. 302 of 1978.
F.S. Nariman, M. Chandrasekharan, K.R. Nambiar, C.V. Subba Rao, Ms. A. Subhashini, A.K. Ganguli, Mrs. R. Rangas wamy, Hemant Sharma, K. Swamy and Ms. section Relan for the appearing parties.
The Judgment of the Court was delivered by BHAGWATI CJ.
1.
The above cases are involving a company known as Madras Rubber Factory Ltd. (popularly known as MRF Ltd.) MRE has four factories; Kottayam (Kerala), Madras (Tamil Nadu), Arkonam (Tamil Nadu) and Goa (Union Territory) engaged in 852 the manufacture of automotive tyres, tubes and other rubber factory products.
Each of these factories are under juris diction of different Assistant Collectors.
The four proceed ings arising for our consideration are as under: (i) Civil Appeal No. 3195 of 1979 is an appeal by certifi cate filed by the Union of India through the Assistant Collector of Central Excise, Kottayam against the Judgment dated 20th June 1979 of the Division Bench of the High Court of Kerala from Writ Appeal No. 302 of 1978 allowing post manufacturing expenses under the new Section 4 of the Excise Act.
This relates to the Kottayam factory.
(ii) Civil Appeals Nos.
4731 32 of 1984 are appeals filed by Union of India through the Superintendent of Central Excise, Kottayam against the Judgment dated 1st April 1976 of the Division Bench of the High Court of Kerala allowing post manufacturing expenses under the old Section 4 of the Excise Act.
(iii) SLP (Civil) No. 10108 of 1980 is another appeal of the Union of India against the Judgment of the Additional Judi cial Commissioner, Goa, Daman and Diu allowing post manufac turing expenses under the old Section 4 of the Excise Act in respect of the factory at Goa.
In respect of new Section 4, the Union of India and MRF were agreed that the decision in Writ Appeal No. 302 of 1978 being the subject matter of Civil Appeal 3195 of 1979 would be applicable to the factory at Goa.
(iv) Civil Appeal No. 793 of 1981 is MRF 's Appeal under Section 35L of the Central Excise and Salt Act (as amended) ' against the order and decision dated 1st February 1984 of the Tribunal (CEGAT) deciding that the sale of tyres and other rubber products through their 42 Depots throughout India were not retail sales but were in the nature of whole sale sales and MRF was not entitled to deductions under Rule 6A of the Central Excise (Valuation) Rules, 1975 (hereinaf ter referred to as the "Valuation Rules").
These proceedings are now arising for our considera tion after the pronouncement of the Judgment by this Court in the case of Union of India & Others vs Bombay Tyres International Ltd., [1983] Vol.
14 Excise Law Times 1896) decided on the 7th October 1983 and the clarificatory order passed by this Court in the same case of Union of 853 India & Others vs Bombay Tyres International Ltd., reported in This clarification was given by the Supreme Court on 14th and 15th November 1983.
Pursuant to hearings held in this Court in several cases relating to post manu facturing expenses and after the latter clarificatory order in the case of Union of India & Others vs Bombay Tyres International Ltd. (supra), the Tribunal (CEGAT) decided the Review Notice and set aside the order of the Appellate Collector on 1st February 1984 and on 9th February 1984 the Civil Appeal No. 793 of 1984 was admitted.
Format orders were passed by this Court in the pending appeals relating to post manufacturing expenses.
Even in the present matters format orders were passed on or around 3rd May, 1984.
Format orders were also passed in the pending Writ Appeal No. 590 of 1979 pending before the High Court at Madras.
In accord ance with the format orders and within the timeframe stipu lated, amendments to price lists were to be filed by MRF Ltd. The present Appeals are now to consider the various deductions claimed by MRF Ltd. and/or disallowed and/or not allowed by the Assistant Collector, or allowed by the As sistant Collector, in the various jurisdictions qua the factories of MRF Ltd. in the cross Appeals of the Union of India and the MRF Ltd. 3.
For the sake of convenience, the deductions arising for consideration of this Court can be summarised as under: (i) TAC/Warranty discount (ii) Product discounts (iii) Interest on finished goods and stocks carried by the manufacturer after clearance (iv) Over riding commission to Hindustan Petroleum Corpora tion (v) Cost of distribution incurred at duty paid Sales Depots (vi) Interest on receivables (vii) 1% turnover discount allowed to RCS Dealers (viii) Secondary packing cost on tread rubber (ix) Discount to Government and other Departments 854 4.
The Appeals further also raise the issue of whether the price to the Defence Department Ex factory gate (ex factory) is to be considered as the wholesale cash price under old Section 4 as this was disallowed by the Assistant Collector, and further the issue as to the method of compu tation of assessable value where the selling price is a cum duty price.
This issue involves the consideration as to how excise duty has to be deducted, whether after deducting permissible deductions or otherwise.
We propose to deal with the issues as follows.
For the purpose of this Judgment we are not repeating and setting out the text of the un amended Section 4 and the amended Section 4 as the same are exten sively quoted in our Judgment in Union of India vs Bombay Tyres International Ltd., Recapitulating our Judgment in Union of India & Others vs Bombay Tyres International Ltd. (supra) we held that: "broadly speaking both the old s.4(a) and the new s.4(1) (a) speak of the price for sale in the course of wholesale trade of an article for delivery at the time and place of removal, namely, the factory gate.
Where the price contemplated under the old s.4(a) or under the new s.4(1) (a) is not ascertain able, the price is determined under the old s.4(b) or the new s.4(1)(b).
Now, the price of an article is related to its value (using this term in a general sense), and into that value are poured several components, including those which have enriched its value and given to the article its marketability in the trade.
Therefore, the expenses incurred on account of the several factors which have contributed to its value upto the date of sale, which apparently would be the date of delivery, are liable to be included.
Consequent ly, where the sale is effected at the factory gate, expenses incurred by the assessee upto the date of delivery on ac count of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), charges for other services after delivery to the buyer, namely after sales service and marketing and selling organisation expenses including advertisement expenses cannot be deducted.
It will be noted that advertisement expenses, marketing and selling organisation expenses and after sales service promote the marketability of the article and enter its value in the trade.
Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by 855 the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted.
But the assessee will be entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold.
The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery.
In the clarificatory order in Union of India & Ors.
vs Bombay Tyres International Ltd., reported in 1984 Vol.
17 ELT 329 we clarified that discounts allowed in the trade (by whatever name called) should be allowed to be deducted from the sale price having regard to the nature of the goods, if established under agreements or under terms of sale or by established practice.
The allowance and the nature of dis count should be known at or prior to the removal of the goods and shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price.
In relation to the first head of deduction, namely TAC/ Warranty discount, the petitioners contend that deduc tion on account of TAC/Warranty discount ought to be permit ted as a deduction for determining the assessable value.
It is submitted by them that this discount relates to the claims of the customers on account of any defect in the tyre already sold and assessed to duty.
Such claims are scruti nised by a committee of technical personnel of the assessee.
The Committee decides as to what amount of money should be refunded to the customers on account of the defect in the manufactured tyre already sold to the customers by which defect the tyre does not get its full life tenure.
Instead of refunding the amount in cash the customers are permitted to buy a new tyre, the price of which new tyre would be reduced by the amount refundable to customers as per deci sion of the committee. '17he petitioners contend that the TAC/Warranty discount satisfied all the criteria of a trade discount stipulated in our order dated 14th/15th November 1983 in that it is a discount established by practice since 1943, it is a discount given to the consumer of a MRF tyre in respect of a tyre purchased earlier, the factum of allow ance is known is trade prior to removal, the nature of the discount is not arbitrary or ad hoc and easily determinable.
The Revenue disputes this claim on the ground that it does not come within Section 4(4)(d)(ii) of the Act since the claim is not in accordance with the normal practice of the wholesale trade at the time 856 of removal of the goods in respect to which the claim is made and also on the ground that this is not normally claim able as trade discount.
We are inclined to accept the contention of the department.
Even though the giving of TAC/Warranty is estab lished by practice or capable of being decided, what is really relevant is the nature of the transaction.
The war ranty is not a discount on the tyre already sold, but relate to the goods which are being subsequently sold to the same customers.
It cannot be strictly called as discount on the tyre being sold.
It is in the nature of a benefit given to the customers by way of compensation for the loss suffered by them in the previous sale.
In our order dated 14 th/15th November 1983 we have said that trade discounts of any nature should be allowed to be deducted provided, however, the discount is known at or prior to the removal of the goods.
In the present case this condition precedent is not satisfied as the Committee de cides the claim subsequent to the removal of the tyre.
The Petitioners have further contended that the Excise Act and the Rules framed thereunder contemplate such an allowance and an abatement of duty on defective tyres.
Counsel for the Petitioners has drawn an attention to Rule 96 which reads as follows: "Rule 96.
Abatement of duty on defective tyres: If a manu facturer desires that certain tyres should, in consequence of damage sustained during the course of manufacture, be assessed on a value less than the standard selling price he shall declare in writing on the application for clearance of the goods, that such damage has been sustained and each such tyre shall be clearly legibly embossed or indelibly stamped with the word "Second", "Clearance" or "Defective".
There is, however, a distinction between a compensa tion in the nature of warranty allowance on a defective tyre after it has been sold and removed from the factory gate and selling a defective tyre as a "seconds" or "defective".
In our view the analogy of Rule 96 is not applicable.
A tyre being sold as a "seconds or "defective" would be sold at a discount, such discount being known before the goods were removed/cleared, thereby also satisfying the pre condition of section 4(4)(d)(ii) of the Excise Act.
The assessable value and price list submitted would be one relating to "seconds" tyres.
We, therefore, 857 disallow the claim in respect of TAC/Warranty discount.
The next head of deductions arising for our consid eration is in respect of product discounts.
This head com prises of 3 tyres of discounts: (1) Prompt Payment Discount (2) Year Ending Discount (3) Campaign Discount 13.
We deal with each of the heads individually as under: (i) Under the prompt payment discount scheme MRF in relation to up country Non RCS Bills in the replacement market except Government and DGS & D accounts, a rate of 0.75% on the total value of the invoice including sales tax, surcharge, etc.
is offered if the bill is cleared/paid for within 26 days from the date of invoice.
The Union of India disputes this claim on the ground that it is limited to only certain varieties of products as explained in the scheme document and is only for a limited period.
We are not in clined to accept the contention of the Union of India in this regard.
A prompt payment discount is a trade discount given to the dealers by MRF.
It is established under the terms of sale or by established practice and is known at or prior to the removal of the goods.
It squarely falls within our order of clarification in the case of Union of India & Ors.
vs Bombay Tyres International Ltd. (supra).
The MRF is entitled to deduction on this account.
(ii) In the Special year end Bonus to Dealers MRF pro poses and claims this deduction as a year end discount.
This Bonus of Rs.50 per tyre is for certain specific tyres and is receivable only on those invoices where payments are actual ly receivable within 45 days from the date of the invoice.
Under this scheme a declaration is to be received dealerwise and thereafter provision is to be made at the head office of MRF for the Bonus.
The allowance of the discount is not known at or prior to the removal of the goods.
The calcula tions are made at the end of the year and the Bonus at the said rate is granted only to a particular class of Dealers.
This is computed after taking stock of the accounts between MRF and its dealers.
It is not in the nature of a discount but is in the nature of a Bonus or an incentive much after the invoice is 858 raised and the removal of the goods is complete.
In the circumstances, we are of the opinion that MRF is not enti tled to deduction under this head.
(iii) MRF proposed "Superlug Piggy back campaign Bonus" in March/April 1983 for invoices during a particular period whereby bonus of Rs.50 per tyre for every Superlug tyre and/or any other particular variety of tyres is given.
The bonus was again applicable only on invoices for which pay ments were received within 45 days.
Details of bonus earn ings per dealer were to be computed after taking stock of the accounts between MRF and its dealers and the bonus amount was to be credited after June 1983 or mid July 1983.
On the same reasoning as the year ending discount/bonus scheme, the campaign bonus cannot be a permitted deduction to MRF.
The allowance of the discount is not known at or prior to the removal of the goods.
The quantum is unascer tained at the point of removal.
The discount is not on the wholesale cash price of the articles sold but is based on the total sales effected of a particular variety of tyre calculated after the removal.
We accordingly reject this claim of MRF.
Interest on finished goods from the date the stocks are cleared till the date of the sale was disallowed by the Assistant Collector, Kottayam.
This head has again been urged for our consideration as a proper deduction for deter mination of the assessable value.
As quoted in our judgment in Union of India and Ors.
vs Bombay Tyres International Ltd. (supra), we have held that expenses incurred on account of several factors which have contributed to its value upto the date of sale which apparently would be the date of delivery at the factory gate are liable to be included.
The interest on the finished goods until the goods are sold and delivered at the factory gate would therefore necessarily, according to the judgment in Bombay Tyres International case (supra) have to be included but interest on finished goods from the date of delivery at the factory gate up to the date of delivery from the sales depot would be an expense in curred after the date of removal from the factory gate and it would therefore, according to the judgment in Bombay Tyres International case (supra) not be liable to be includ ed since it would add to the value of the goods after the date of removal from the factory gate.
We would therefore have to allow the claim of MRF Ltd. as above.
859 15.
The next head of deduction relates to over riding commission to the Hindustan Petroleum Corporation which was disallowed.
MRF entered into a contract with Hindustan Petroleum Corporation Ltd. for sale of their products through HPC dealer network.
An overriding commission was agreed to, in consideration of HPC not agreeing to entering upon agreement with any other tyre manufacturing company vis a vis by reason of MRF undertaking not to enter upon any agreement with any other oil company.
The discount proposed was as a percentage of sale effected through the HPC dealers on half yearly basis.
On the face of it, the over riding commission payable to HPC is a commission for sales.
It is a compensation granted for the sale of MRF products through HPC dealers and is a commission for services rendered by the agent.
It is not a discount known at or prior to the removal of the goods and we accordingly reject this claim of MRF Ltd. 16.
Another head of deduction disallowed to MRF relates to interest on receivables (sundry debtors for sales).
MRF has represented that this cost is inbuilt in the price and is incurred on account of the time factor between the time the goods are delivered and the time the moneys are rea lised.
The cost is incurred only where credit terms are given in case of up country and other buyers where payment is made much after the sales are effected.
They contend that it is nothing but an extension of the principle underlying Rule 4 of the Central Excise (Valuation) Rules.
They contend that this is an adjustment in value required to be made to take into account and provide for the difference in the time of delivery and the realisation of the sale value.
As stated in our judgment in Union of India & Ors.
vs Bombay Tyres International Ltd. (supra), it is only those expenses incurred on account of factors which have contributed to its value upto the date of sale or the date of delivery which are liable to be included in the assessable value.
The interest cost and expenses on sundry debtors or interest on receivables is an expense subsequent to the date of sale and removal or delivery of goods and in our opinion MRF Ltd. would be eligible to claim deduction on this account.
The next head which was urged for our consideration relates to the cost of distribution incurred at the duty paid sales depots.
In our judgment in Union of India and Others vs Duphar Interfram Ltd. (Civil Appeal No. 569 of 1981) reported in 1984 Excise and Customs Reporter at page 1443, we have held that the cost of distribution is not to be included in the assessable value in case the wholesale dealers take delivery of the goods from outside duty paid godown.
The 860 wholesale dealers having taken delivery of the goods manu factured by MRF.
Ltd. and there being a removal of the goods from the factory gate, the cost of distribution at duty paid sales depots cannot be taken into account for the purpose of determining the assessable value of the goods.
The next head of deduction disallowed to MRF relates to discount to Government and other Departments.
In our view the Assistant Collector, Goa has rightly rejected the claim of MRF though the Assistant Collector, Kottayam allowed the claim of MRF.
MRF Ltd. sells its products at a lower price as per contract with the Government or its Departments.
Separate price lists for the Government and other Depart ments were filed by MRF distinct and different from the price lists in relation to dealers.
The position that dif ferent price lists for different classes of dealers or different classes of buyers is specifically recognised under section 4(1), proviso (i), of the Excise Act.
Different prices can be declared with reference to different classes of buyers and each price is deemed to be a normal price of such goods.
In this view of the matter, merely because the product is sold at a lower price to the Government and its Departments does not enable the MRF to contend that the difference in price with reference to an ordinary dealer and the Government is a discount to the Government.
The differ ence in price is not a discount but constitutes a normal price for the Government as a class of buyer and no deduc tion on this head is liable to MRF Ltd. 19.
The next question which arises for our consideration relates to special secondary packaging charges for tread rubber.
It has been the contention of the MRF that their case is covered by the judgment in Union of India & Ors.
vs Godfrey Philips India Ltd., reported in 1985 Vol.
The majority judgment in Godfrey Philips India Ltd. (Supra) holds that "on a proper construction of Sec.
4(4)(d)(i) of the Act read with the Explanation, the second ary packaging done for the purpose of facilitating transport and smooth transit of the goods to be delivered to the buyer in the wholesale trade cannot be included in the value for the purpose of assessment of excise duty.
If a packaging is not necessary for the sale of the product in the wholesale market at the factory gate, the same cannot be included in the value for the purpose of assessment of excise duty.
" It has been brought to our notice that in a Judgment delivered by the Bombay High Court in Misc.
Petition No. 1534 of 1979 (Judgment dated 7th January 1986) Bharucha J. of Bombay High Court in Bombay Tyres International Ltd. vs Union of India & Ors., has considered the Judgment in 861 Godfrey Philips India Ltd. (supra) with specific reference to the question of secondary packaging for tread rubber.
It has been brought to our notice that such packaging consists of cardboard cartons or wooden cases.
In that case the tread rubber as packed was produced before Bharucha J. He has described that the tread rubber is a strip of rubber approx imately 6 ' ' wide and about 1 ' ' thick which is tightly wound into a roll.
Each roll weighs between 15 Kgs and 40 Kgs.
The roll is not held together by any means.
The roll is inserted into a loose and open polythene bag.
That bag also cannot hold the roll together.
The bag is placed in a cardboard carton or a wooden case.
The cardboard carton is held to gether by rubber bands.
The wooden case is nailed together.
Though, it was contended that the cardboard cartons and wooden cases were in the nature of secondary packaging whose cost was not includable in the value of tread rubber, Bharu cha J. held that a roll of tread rubber cannot be sold without the cardboard carton or the wooden case.
It is further stated that the secondary packing in which tread rubber is sold is in the course of wholesale trade.
The secondary packing is not employed merely for the purpose of facilitating transport or smooth transit and is necessary for selling the tread rubber in the wholesale trade.
Bharu cha J. refused to remand the matter to the authorities as the tread rubber as packed had been produced before him and he was of the firm view that the cardboard cartons and the wooden cases are not such secondary packing materials as can be excluded in computing the assessable value of the Peti tioner 's tread rubber.
In the circumstances that this very issue has been decided on a visual personal inspection of Bharucha J. in the case of Bombay Tyres International Ltd. (supra) pronounced after the decision in Godfrey Philips India Ltd. (supra) we are of the view that the cost of cardboard cartons and wooden cases or any other special secondary packing charges incurred by the MRF on tread rubber should not be excluded from the assessable value.
Tread rubber is a product which if even slightly damaged becomes unfit or un usable.
The vital element "cushion compound" which is applied to the bottom of the tread rubber and which helps the tread rubber to stick to the buffed surface of the old tyre which is to be retreaded is very delicate.
A polythene sheet is put over the layer of the compound before the same is rolled and put into another polythene bag to avoid sticking to the outer side of the tread rubber and getting contaminated by dust.
It is stated that such production cannot be marketed without the poly thene bags and/or cardboard boxes.
These are the findings of the Assistant Collector, Goa and in the light of the cumula tive decisions of the Assistant Collector, Goa and of the Bombay High Court, we are of the view that the secondary special packing charges for tread rubber 862 cannot be deducted from the assessable value of tread rub ber.
In relation to the determination of wholesale price of tyres on the basis of the ex factory price for Defence supplies, with reference to the old Section 4 in view of our Judgment in Union of India vs Bombay Tyres International Ltd. (supra) also reported in ; at 376E, this Court has held that "in the new Section 4 in supersession of the old Section 4, no material departure was intended from the basic scheme for determining value of excisable arti cles.
" It has been contended by the Union of India that even after our format orders referred to above, MRF has not submitted any statement of deductions/amendments in respect of price lists filed nor submitted any fresh prices.
It claims several deductions on percentage basis by furnishing calculations vis a vis the entire company but did not fur nish item wise or factory wise break up of such claims.
Having held that there is no material departure in the basic scheme for determining the value of excisable articles in the old Section 4 and the new Section 4, there is nothing in the unamended Section 4 to justify an inference that the wholesale cash price of articles of similar description sold cannot be different for different classes of buyers in wholesale.
Different prices can be normal prices for the purposes of determination of the assessable value of the article.
We accordingly reject the contention of the MRF.
Even though the MRF has not filed a separate price list for the factory gate clearances to Defence Department under the old Section 4, in view of our now holding that there is no material schematic difference between old Section 4 and new Section 4, we permit MRF Ltd. to file revised price lists with reference to the class of buyers namely, Defence on a different basis for a different normal price and avail of all the necessary reliefs with reference to lower assessable value, if the same has not already been filed.
In so far as the deductions claimed towards excise duty paid on processed tyre cord, the contention of the MRF has been upheld by the Goa Bench in Special Civil Appeal No. 28 of 1983 and the claim has been allowed to MRF for deduc tion from selling price of excise duty on processed tyre cord.
This is in accordance with Section 4(4) (d)(ii) of the new Section 4 and we accordingly confirm that MRF is eligi ble to this deduction.
The last important issue relates to the method of computation of assessable value in a cum duty price at a factory gate sale.
The issue is whether excise duty should be first deducted or the permissible deduction should be first deducted from the selling price for the re 863 assessments before the Assistant Collectors.
The assessment of excise duty both in relation to Section 4 and in relation to the Valuation Rules is now subject to the definition contained in Section 4(4)(d) of the Excise Act.
The value as defined thereunder is to be arrived at after the cost of packaging of a durable nature or a returnable nature as also amounts of duty of excise, sales tax and other taxes and trade discount allowed in accordance with the normal prac tice of wholesale trade is determined.
It is thus implicit that no excise duty is payable on an element of excise duty in the price.
The value as contemplated under Section 4 cannot include a component of excise duty.
In the circum stances, where the computation of an assessable value has to be made from the factory gate sale price which is a cum duty price, the first question which will have to be addressed is what are the exclusions and permissible deductions from such a sale price.
The petitioners have contended that their cum duty price was arrived at after calculating and adding excise duty payable i.e., before actual duty was paid.
They contend that their price list for several articles is ap proved much in advance of the removal from the factory.
They contend that when the assessable value is to be arrived at, the same amount of excise duty which was pre determined and added to the factory price is naturally to be deducted first and only thereafter the permissible deductions should be deducted to arrive at the value.
For the purposes of argu ment, MRF submitted the following example for consideration: They suggested that their selling price should be con sidered (cum duty selling price) as Rs. 3200.
They further submitted that the permissible deductions whether on account of trade discount or on account of cost of secondary packag ing or sales tax or other taxes, packaging or sales tax or other taxes should hypothetically be considered at Rs.200.
The rate of excise duty chargeable is 60% ad valorem for automotive tyres.
Assuming for the sake of argument that the value of the product is actually Rs.2075.
In accordance with the provisions of Section 4(4)(d) permissible deductions are made.
The assessable value would be Rs. 1875 being the difference of Rs.2075 and Rs.200.
The excise duty at the rate of 60% would thereafter be computed on the sum of Rs. 1875 and would aggregate Rs. 1125.
The selling price which is a cum duty price would be the sum total of the assessable value, the permissible deductions and the excise duty.
Putting this as a mathematical formula the selling price (cum duty price) is equal to assessable value plus permissi ble deductions plus excise duty.
Cumduty Paid Selling Price = Assessable Value + Excise Duty + Permissible deductions.
Again excise duty is computed as a ratio of the assessable value where duty is ad valorem.
For the purposes of ascer 864 taining the assessable value, if three of the components namely, the cum duty selling price, the quantum of permissi ble deductions and the rate of excise duty are known, the proper and appropriate method of determining the assessable value would be the following formula: Assessable value = cum duty selling price permissible deductions divided by ( 1 + Rate of excise duty) Thus in the instant case working backward, if the cum duty selling price is known to be Rs.3200 and the permissi ble deductions are known to be Rs.200 and the rate of excise duty is known to be 60% the assessable value is computed aS under: Selling price permissible deductions = Rs.3200=RS.200 = Rs.3000 Assessable value is equal to difference in selling price and permissible deductions divided by 1 plus 60/100 which is equal to 3000/1.6 which is equal to Rs. 1875.
The excise duty at 60% ad valorem rate would be Rs. 1125 on the assessable value of Rs. 1875.
The mathematical formula enumerated above balances.
For example, if the cum duty paid selling price is equal to Rs.3200, the assessable value is Rs. 1875, excise duty is Rs. 1125 and permissible deductions is Rs.200, the aggregate of the assessable value, the permissible deductions and the excise duty is equal to the selling price (cum duty paid).
Any other method of computation of excise duty or assessable value is erroneous.
The Petitioner 's basis that the assessable value is to be arrived at by taking into consideration the same amount of excise duty which was hypothetically pre determined and added to the factory price and that this element in an attempt to compute the assessa ble value should naturally be deducted first, is putting the cart before the horse.
The excise duty is only known as a ratio of the assessable value when an ad valorem duty is included in the cum duty paid selling price.
The quantum of excise duty cannot be pre deducted or predetermined till the assessable value is known.
It is only the permissible deduc tions in concrete monetary terms and amount which are 865 known.
The cum duty paid sale price being available for computation and a known value of deductions permitted being also known, the assessable value and the excise duty as a ratio of the assessable value can be only decided by first deducting the permissible deductions, from the cum duty paid selling price and thereafter computing the value in accord ance with the equation mentioned above.
This has both a legal and a mathematical basis.
If the pre determined amount of excise duty as per the illustration given by MRF Ltd. is first deducted, the equation will not tally.
For example, if from a hypothetical cumduty price of Rs. 150 (comprised of the value of the product at Rs. 100 and ad valorem excise duty@ 50% at Rs.50) if the excise duty of Rs.50 is first deducted and thereafter the permissible deduction of Rs.5 is deducted, the assessable value arrived at would be Rs.95.
The rate of excise duty is 50% and the excise duty @50% of the assessable value of Rs.95 would be Rs.47.50 and not Rs.50 as earlier deducted.
There would be a constant differ ence of Rs.2.50 in the computation.
It is, therefore, an incorrect method of evaluating the assessable value in instances of cum duty selling price.
This interpretation is borne out by the definition contained in Section 4(4)(d) of the Excise Act.
MRF 's contention that the excise duty should be deducted first and then the permissible deductions is incorrect.
In ordinary cases where the factory price is not a cum duty price, the first step in arriving at the assessa ble value is to deduct the permissible deductions and there after to compute the excise on an ad valorem basis.
The excise duty cannot be computed unless the permissible deduc tions are first made.
The assessable value is arrived at only after the permissible deductions are made.
Excise duty is a ratio of the assessable value.
Ad valorem excise duty is computed only on assessable value after arriving at such assessable value by making proper permissible deductions.
Excise duty cannot be computed without proper determination of the assessable value, namely assessable value exclusive of permissible deductions.
Even in the cum duty sale price, the same principle must be followed to arrive at the assess able value.
To compute an excise duty as a pre determined amount without making the permissible deductions for reduc ing the cum duty selling price is a fallacy both legally and mathematically as demonstrated above.
The ad valorem excise duty can only be computed after reducing the assessable value by permissible deductions and then applying the tariff rate to the assessable value.
To reverse this sequence is to mis interpret the scheme and mode of levy of excise duty on the assessable value.
In the light of our aforesaid discussions and keep ing in line with our previous format orders, we direct the assessing authorities to 866 quantify and re determine the permissible deductions in accordance with our present Judgment.
The assessee, MRF Ltd. already having been required to file the permissible deduc tions/amendments to the price lists within a period of one month in the last instance in May 1984 is once again re quired by us to file fresh price lists in the light of our present Judgment within one month for all the periods under consideration.
The assessing authorities after hearing the assessee would quantify the correct assessable value in the light of our Judgment.
In making the assessments for each of the periods, the authorities would include the set off in respect of further refunds, if any, allowable on account of fresh deductions permitted and/or already allowed to the assessee.
MRF would be at liberty to obtain suitable direc tions in the pending Writ Appeal No. 590 of 1979 in the High Court of Madras in accordance with our Judgment.
We leave the parties to bear their own costs.
ORDER In respect of items claimed by the assessee which have been allowed by us in this judgment or where the allowance by Assistant Collector has been upheld the quantum will be adjusted by giving appropriate credit in the personal Ledger Accounts.
P.S.S. Appeals dis posed of.
[/INST]In Union of India vs Bombay Tyres International Ltd., ; , this Court held that under s.4 of the Central Excise and Salt Act, 1944, only those expenses which were incurred on account of factors contributing to the product 's value upto the date of sale or the date of deliv ery at the factory.
gate were liable to be included in the assessable value.
On November 14/15, 1983 the Court made a clarificatory order wherein it was stated that discounts allowed in the trade (by whatever name called) should be allowed to be deducted from the sale price having regard to the nature of the goods, if established under agreements or under terms of sale or by established practice, and that such allowance and the nature of discount should be known at or prior to the removal of the goods and should not be disallowed only because they were not payable at the time of each invoice or deducted from the invoice price.
The respondent Rubber Factory claimed various deductions of the nature of post manufacturing expenses for determining the assessable value of their products under s.4 of the Act which were disallowed 847 by the Excise authorities.
Its writ petitions were, however, allowed by the High Court.
In appeals by the Union of India for setting aside the High Court judgment it was contended for the respondent: (a) that the TAC/ Warranty discount, which was sought to be deducted for determining the assessable value, satisfied all the criteria of a trade discount stipulated in the clarifi catory order; (b) that the claim for deduction of product discounts prompt payment discount, year ending discount and campaign discount was justified on the same reasoning; (c) that the interest on finished goods from the date the stocks were cleared till the date of sale was a proper deduction for determination of the assessable value; (d) that the claim for deduction of interest on receivables (sundry debtors for sales) was justified on the ground that this cost was inbuilt in the price and was incurred on account of the time factor between the delivery of goods and realisa tion of moneys; (e) that the overriding commission allowed to the Hindustan Petroleum Corporation for exclusive sale of company 's products through their dealer net work was also of the nature of a discount; (f) that the cost of distribution at the duty paid sales depot was a proper deduction; (g) that the difference between the lower price at which the product was sold to the Government and the price charged from ordinary dealer was of the nature of a discount; (h) that the claim for deduction of special secondary packaging charges squarely falls within s.4(4)(d)(i) of the Act, and (i) that the company was entitled to the deduction of excise duty paid on processed typecord under s.4(4)(d)(ii).
The respondents also disputed the method of computation of 'assessable value ' in a cure duty price at a factory gate sale and contended that such value was to be arrived at by first deducting the predetermined excise duty added to the factory price and only thereafter the permissible deductions were to be deducted.
Disposing of the appeals, the Court, HELD: 1.1 The respondent company is not entitled to the deduction of TAC/Warranty discount for determining assessa ble value of tyres since it does not come within s.4(4)(d)(ii) of the Central Excise and Salt Act, 1944.
[856H, 857A, 855H] 1.2 Even though giving of TAC/Warranty is established by practice for the wholesale trade or capable of being decid ed, what is really relevant is the nature of the traction.
It is not a discount on the 848 tyres already sold, but relate to the goods which are being subsequently sold to the same customers.
It is in the nature of a benefit given to the customers by way of compensation for the loss suffered by them in the previous sale.
[8S6B] 1.3 A trade discount of any nature could be allowed to be deducted provided it is known at or prior to the removal of the goods.
In the instant case, this condition precedent is not satisfied as the committee decided the claim for TAC/Warranty subsequent to the removal of the tyre.
[856C] 1.4 The analogy of Rule 96 of the Central Excise Rules, 1944 relating to abatement of duty of defective tyres cannot be made applicable to justify the claim for deduction of the TAC/Warranty discount.
A tyre being sold as a "seconds" or "defective" would be sold at a discount, such discount being known before the goods were removed/cleared, thereby also satisfying the pre condition of s.4(4)(d,(ii) of the Excise Act.
The assessable vase and price list submitted would be one relating the 'seconds ' tyres.
[856G] Union of India vs Bombay Tyres International Ltd., [1984] 17 ELT 329, referred to.
2.1 The respondent is entitled to deduction of 'prompt payment discount ' which is a 'trade discount ' given to the dealers by the company.
It is established under the terms of sale or by established practice and is known at or prior to the removal of the goods [857E F] 2.2 The company is not entitled to deduction of the 'year ending discount '.
The allowance of the discount is not known at or prior to the removal of the goods.
The calcula tions are made at the end of the year and the bonus at the said rate is granted only to a particular class of dealers.
This is computed after taking stock of the accounts between the company and its dealers.
It is not in the nature of a discount but in the nature of a bonus or an incentive much after the invoice is raised and the removal of the goods is complete.
[857G 858A] 2.3 The campaign bonus cannot be a permitted deduction to the company.
The allowance of the discount is not known at or prior to the removal of the goods.
The qnantum is unascertained at the point of removal.
The discount is not on the wholesale cash price of the articles sold but is based an the total sales effected of a particular variety of tyre calculated after the removal.
[858D] 849 3.1 Expenses incurred on account of several factors which have contributed to the product 's value upto the date of sale, which apparently would he the date of delivery at the factory gate, are liable to he included in the assessa ble value.
[858F] 3.2 The company was justified in claiming deduction of interest an finished goods until they were sold and deliv ered at the factory gate.
But interest on finished goods from the date of delivery at the factory gate up to the date of delivery from the sales depot would be an expense in curred after the date of removal from the factory gate and it would, therefore, not he liable to he included since it would add to the value of the goods after the date of remov al from the factory gate.
[858G H] Union of India vs Bombay Tyres International Ltd., ; , referred to.
The interest cost and expenses on sundry debtors or interest on receivables is an expense subsequent to the date of sale and removal or delivery of goods and, therefore, the company would not he eligible to claim deduction on this account.
[859H] 5.
The overriding commission paid by the company to the Hindustan Petroleum Corporation for sale of their products exclusively through HPC dealer network is not deductible.
It was agreed to in consideration of the COrporation not agree ing to enter upon agreement with any other tyre manufactur ing company vis a vis by reason of the respondent undertaking not to enter upon any agreement with any other oil company.
It is a compensation granted for the sale of company 's products through HPC dealers and is a commission for services rendered by the agent.
It is not a discount known at or prior to the removal of the goods.
[859A C] 6.
The cost of distribution incurred at the duty paid sales depots is not to he included in the assessable value in case the wholesale dealers take delivery of the goods from outside such godown.
The wholesale dealers having taken delivery of the goods manufactured by the company and there being a removal of the goods from the factory gate, the cost of distribution at duty paid sales depots cannot he taken into account for the purpose of determining the assessable value of the goods.
[859H 860A] Union of India & Ors.
vs Duphar Interfram Ltd., , referred to.
850 7.
Merely because the product is sold at a lower price to the Government it cannot be said that the difference in price with reference to an ordinary dealer and the Govern ment is a discount to the Government.
The position that there can be different price lists of articles of similar description sold to different classes of dealers or differ ent classes of buyers in wholesale is specifically recog nised under s.4(1)(a), proviso (1) of the Act.
The lower price for the Government constitutes a normal price for it as a class of buyer and no deduction on this head is liable to the company for the purpose of determination of the assessable value of the article.
[860D, C, E] 8.1 Section 4(4)(d)(i) of the Act read with the Explana tion thereto makes it apparent that the 'secondary packag ing ' done for the purpose of facilitating transport and smooth transit of the goods to be delivered to the buyer in the wholesale trade cannot be included in the value for the purpose of assessment of excise duty.
If a packaging is not necessary for the sale of the product in the wholesale market at the factory gate, the same cannot be included in the value for the purpose of assessment of excise duty.
[860 FG] 8.2 In the instant case, the secondary packaging for tread rubber consists of cardboard cartons and wooden cases.
This secondary packing is not employed merely for the pur pose of facilitating transport or smooth transit but is necessary for selling the tread rubber in the wholesale trade.
The cost of these cardboard cartons and wooden cases or any other special secondary charges incurred by the company on tread rubber could not, therefore, be excluded from its assessable value.
[861A, D, E F] Union of India & Ors.
vs Godfrey Philips India Ltd., and Bombay Tyres International Ltd. vs Union of India & Ors., Bombay High Court M.P. No. 1534 of 1979 decided an January 7, 1986, referred to.
The company is eligible for deduction from selling price of tyre of excise duty paid on processed tyre cord.
This is in accord with s.4(4)(d)(ii) of new s.4 of the Act.
[862F G] 10.1 The assessment of excise duty both in relation to s.4 and in relation to the Valuation Rules is now subject to the definition contained in s.4(4)(d) of the Act.
The 'va lue ' as defined thereunder is to be arrived at after the cost of packaging of a durable nature or a returnable nature as also amounts of duty of excise, sales tax and other taxes and trade 851 discount allowed in accordance with the normal practice of wholesale trade is determined.
It is implicit that no excise duty is payable on an element of excise duty in the price.
The value as contemplated under s.4 cannot include a compo nent of excise duty.
[863AB] 10.2 The aggregate of the assessable value, the permis sible deduction and the excise duty is equal to the selling price (cure duty paid).
The excise duty is only known as a ratio of the assessable value when an ad valorem duty is included in the cure duty paid selling price.
The quantum of excise duty cannot be pre deducted or pre determined till the assessable value is known.
It is only the permissible deductions in concrete monetary terms and amount which are known.
The cum duty paid sale price being available for computation and the value of deduction permitted being also known, the assessable value and the excise duty as a ratio of the assessable value can be only found by first deducting the permissible deductions from the cum duty paid selling price and thereafter computing the value by dividing the difference by (1 +rate of excise duty).
This method has both a legal and mathematical basis.
To reverse this sequence is to mis interpret the scheme and the mode of levy of excise duty on the assessable value.
[864E G, 865B, 865G] 10.3 Where the factory price is not a cure duty price, the first step in arriving at the assessable value is to deduct the permissible deductions and thereafter to compute the excise on an ad valorem basis by applying the tariff rate to the assessable value.
[865D]
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 194 of 1979.
From the Judgment and Order dated 4.7.1978 of the Andhra Pradesh High Court in Crl.
A. No. 576 of 1977.
K. Madhava Reddy, and G. Narasimhulu for the Appellants.
B. Parthasarthi for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The appellants are Bollavaram Pedda Narsi Reddy (A 1), Bollavaram Chinna Narsi Reddy (A 2), Kavalakuntla Rama Subba Reddy (A 3), Duddula Venkata Subba Reddy (A 5) and Mala Prakasam (A 6) before this Court.
These appellants along with accused No. 4 Duddela Ramana Reddy, were tried for the 726 murder of one Chandrasekhara Reddy on the night of August 15, 1974.
The trial court acquitted all the accused.
On appeal by the State, the High Court convicted these appellants under sections 302 read with 149, I.P.C., and sentenced them to undergo imprisonment for life and also imposed short term imprisonment for minor offence to run concurrently.
Chandrasekhara Reddy, the deceased, and the accused were residents of village Jeereddy Kotharpallai.
In 1970, Accused No. 3 was elected as a Sarpanch of the village with active support of the deceased.
However, differences arose between them as they supported rival groups in the election in the neighbouring village.
10 days before the incident, the deceased is stated to have openly declared that he would get Accused 3 removed by moving a no confidence motion.
This according to the prosecution is the motive for the crime.
On the date of occurrence, Chandrasekhara Reddy met PW 1 (Guddeti Balaveera Reddy) and PW 2 (Donthireddi Subba Reddy) in the hotel of Subbamma (PW 8) in the neighbouring village Proddatur.
The deceased along with the two witnesses attended a cinema show at Anwar Talkies.
They came out of the theatre 10 minutes earlier around 9.30 P.M. and were walking along the road towards the bus stand.
When they reached near the old telephone exchange about 50 metres away from Anwar Talkies, there was an explosion of crackers.
The accused persons suddenly surrounded the deceased.
They were armed with daggers.
They attacked him after one of them pushing aside PW 1.
PW 1 fell on the barbed wire fence of the transformer and received scratches on his thigh.
The deceased was stabbed indiscriminately and simultaneously by all the assailants who retreated in two different directions and the deceased died on the spot instantaneously.
Besides PWs 1 and 2, who witnessed the occurrence, PW 3 Donthireddi Narayana Reddy, and PW 4 Poreddi Subba Reddy.
had also seen the attack.
These witnesses were passing along the road.
PW 5, Mekkamalla Balireddi, reached the scene attracted by the crowd and had seen the accused persons running away.
The street light besides the electric light at a petrol bunk and the light in the bunk on the side of the road were burning at the time of the occurrence.
The assailants had been identified by the witnesses in that light.
The assailants were strangers to the PWs 1 and 2 but A 2, 3 and 5 were known to PWs 3 and 4 and 5 who had also acquaintance with the deceased PW 5 informed PW 7 (Polagiri Siva Reddy), the brother of the deceased, about the occurrence, while PWs 3 and 4 left the place after seeing the deceased lying at the scene.
This in short is the prosecution case.
727 The Town Police Station is situated about two furlongs away from the place of occurrence.
PW 1 along with PW 2 went to the police station and lodged the first information report.
A crime ws registered against six unidentified persons.
PW 16 (Sri section Khasim Sab, Sub Inspector of Police), recorded the statement exhibit P 1.
The Circle Inspector visited the scene.
PW 2 was referred to the Medical Officer at 4 A.M.
The inquest on the dead body was held on the next morning.
The post mortem examination revealed that deceased had sustained 54 injuries all except one being incised wounds.
At the time of the inquest, the statements of PWs 2 and 7 were recorded.
PW 7 suspected the involvement of Accused 2, 3 and 5.
On 17.8.1974, the police dogs were pressed into service.
It is stated that the sniffer went to the village of the deceased and thereafter to the houses of Accused 2 and 3.
Statements of PWs 3, 4 and 5 were recorded on 18.8.1974.
Accused No. 6 was arrested on 25.9.1974.
A test identification parade was conducted by PW 9 (Sri G.V. Raghavaiah, Judicial Second Class Magistrate) on 31.10.1974.
A 6 was identified by PWs 1, 2, 3 and 4 at the parade as recorded in exhibit P 2 proceeding.
The other accused persons were arrested on 1.11.1974.
PW 10 (Sri D. Sreeramulu, Judicial Second Class Magistrate), conducted the test identification parade in which as per exhibit P 3 proceeding, PWs 1,and 2 identified accused 1, 2, 3 and 5.
The investigation was completed and the charge was laid against the six persons.
The learned sessions judge analysed the prosecution evidence meticulously and discarded the testimony of PWs 1 to 5.
He considered PWs 3, 4 and 5 as chance witnesses, found their conduct in not disclosing the involvement of the accused persons known to them until their statements were recorded on 18.8.1974 as suspicious and strange when they had acquaintance with the deceased.
PWs 3 and 4 when examined by PWs 9 and 10 for the purpose of test identification parade had given statement which vary with their earlier statement and their evidence before court was contradictory to their prior statements.
It was, doubtful whether they could have seen the occurrence or identified any of the assailants.
Their evidence was, therefore, rejected as untrustworthy.
The testimony of the two eye witnesses PWs 1 and 2 who claimed that they were in the company of the deceased at the time of the occurrence was also not accepted by the trial court for various reasons.
They were strangers to the accused persons.
Their evidence regarding the identification of the assailants as the accused did not impress the trial court which pointed out that the prosecution had no consistent case regarding the source of light at the scene that these witnesses even if present at the scene when the assailants mounted the 728 attack on the deceased could not have remained there to observe and memorize the features of the assailants and identify them after a long lapse of time.
PW 1 rushed to the police station in utter confusion even without his dhoti.
The witnesses were frightened and ran away.
In this situation in the meagre light available, they could not have identified the assailants as the accused.
The learned judge on a consideration of the medical evidence was also of the view that the occurrence could not have happened at the time mentioned by these witnesses and, said there were several suspicious features which render their version doubtful.
The learned judge also pointed out that the identification parade was perfunctory and was of no assistance to the prosecution.
The learned sessions judge analysed the entire evidence and considered it unsafe to accept the testimony of the two witnesses to record a conviction.
In that view of the matter, he acquitted all the accused persons.
The High Court considered the reasoning as perverse and on a reappraisal of the evidence, took a contrary view.
In the opinion of the High Court, PWs 1 to 4 are truthful witnesses and their evidence could be accepted.
In its view, there was no serious infirmity in the prosecution evidence.
Accordingly, the High Court accepted the testimony of PWs 1 and 2, corroborated by the evidence of test identification parade and the testimony of PWs 3 and 4 to find the appellants guilty.
Since accused No.4 was not identified by PWs 1 to 4, he was given the benefit of doubt and his acquittal was confirmed.
The learned counsel for the appellants has taken us through the entire evidence in the case.
The appeal is one under Section 2 of the .
It is, no doubt, open to this Court to re examine the evidence for the purpose of satisfying itself whether the High Court was justified in reversing the order of acquittal in the facts and circumstances of the case.
It is well settled proposition of law that in an appeal against acquittal, the Appellate Court is empowered to evaluate the evidence and arrive at its own conclusion.
It is equally settled law that where the view taken by the trial court or an appreciation of the evidence is also a plausible view, the Appellate Court shall be slow to interfere with it even when a different view is possible on a reappraisal of the evidence.
The learned counsel for the appellants pointed out that the High Court in reversing the order of acquittal in this case had departed from these established principles and had thus erred grievously in convicting the appellants.
It was submitted that the conviction recorded by the High Court essentially rests on the testimony of PWs 1 and 2.
When the 729 serious infirmities in the evidence of the other two eye witnesses PWs 3 and 4 had been brought to the notice of the High Court, it has eschewed that evidence and has placed reliance only on the testimony of PWs 1 and 2 in arriving at the conclusion that the appellants are guilty of the offence.
The appellants ' learned counsel, therefore, contended that if the view taken by the trial court on the testimony of PWs 1 and 2 cannot be characterised as perverse or wholly unreasonable, there is no justification for the High Court to accept that evidence as the basis of a conviction even if in its opinion the evidence of these two witnesses could have been relied on.
The main plank of the argument of the learned counsel is that the witnesses being strangers to the assailants when there are circumstances to show that they did not have the opportunity to identify the assailants, their evidence involving these appellants is not free from doubt and, therefore the trial court had taken the reasonable view that it is unsafe for the court to accept that evidence to convict the accused persons.
We see considerable force in the contention of the learned counsel for the appellants.
The evidence given by the witnesses before the court is the substantive evidence.
In a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time, the court will not ordinarily accept that identification as conclusive.
It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered.
If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration to the evidence given by the witness before the court.
But in a case where the evidence before the court is itself shaky, the identification before the magistrate would be of no assistance to the prosecution In the present case, the appellants are admittedly persons with whom the two witnesses had no previous acquaintance.
The occurrence happened on a dark night.
When the crime was committed during the hours of darkness and the assailants are utter strangers to the witnesses, the identification of the accused persons assumes great importance.
The prevailing light is a matter of crucial significance.
The necessity to have the suspects identified by the witnesses soonafter their arrest also arises.
According to the prosecution, the attack on the deceased was sudden and simultaneous and the assailants slipped away in no time.
Both PWs 1 and 2 had deposed that they were attracted by the explosion and when they turned back, the assailants surrounded the deceased and inflicted the stab injuries.
PW 1 was pushed aside.
730 He fell on the fence of the barbed wire of the transformer, received scratches.
His dhoti stuck to the wire.
He left it there and ran to the police station in utter confusion.
His P 1 does not disclose that PW 2 accompanied him, though PWs 1 and 2 stated before court that they went together.
The possibility of the companions of the deceased having been scattered and gone in different directions cannot be ruled out.
Even in Ex.
P 1 statement what PW 1 said is that six persons attacked the deceased; they were villagers; they were wearing dhoti and kurta.
One was about 45 years of age and of dark complexion, another was 30 years of age lean and yet another was also a lean person.
These may be the vague impression the witness had on seeing the assailants suddenly.
It is not however in evidence that the description given by PW 1 in exhibit p 1 fits in with the description of any one of the appellants.
When the magistrates recorded the statements of the witnesses, they could not give any characteristic feature of any one of the assailants.
The entire case depends on the identification of the appellants and the identification is founded solely on the test identification parades.
Therefore, in the absence of cogent evidence that PWs 1 and 2 by reason of the visibility of the light at the place of occurrence and proximity to the assailants had a clear vision of the action of each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify the assailants even after a long lapse of time, it would be hazardous to draw the inference that the appellants are the real assailants.
There is no whisper in exhibit P 1 that there was some source of light at the scene.
The omission cannot be ignored as insignificant.
When the Investigating Officer has visited the scene, he made reference to the street lights, petrol bunk light etc.
Whether the street lights and the petrol bunk/ light had been burning at the time of the occurence and the spot where the incidence happened was so located as to receive the light emanating from these sources are required to be made out by the prosecution.
When this significant fact is left out in the earliest record, the improvement in the course of the investigation and trial could be of no avail.
The fact that there had been no proof regarding the identity of the assailants until 18.8.1974 would suggest that even persons who collected at the scene in the course of the incidence or soon thereafter were not in a position to identify any one of the assailants.
Since the Investigating Officer arrived at the scene the same night and the inquest ws held in the next morning, it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to 18.8.1974, if they had been really identified by any one of the witnesses examined in the case.
When no natural 731 light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake.
The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression.
This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2.
The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution case.
We have noticed that the magistrates in conducting the test identification parade have committed a grave error.
In the case of Accused No.6 PW 9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused.
Similarly, in the identification of the other accused, PW 4 who claimed acquaintance with Accused Nos.2, 3 and 5 was mixed up with PWs 1 and 2.
When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile.
Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having and opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.
Therefore, the evidence of the earlier identification in this case is unacceptable.
The testimony of PWs 1 and 2 before court is also unsafe to be acted upon.
Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous.
The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial.
Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt.
We accordingly allow the appeal, set aside the conviction and sentence and maintain the order of acquittal.
The bail bonds of the appellants shall stand cancelled.
TNA Appeal allowed 731 light was available and the street light was distance it is unlikely that the eye witnesses by monetary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake.
The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression.
This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2.
The High Court has ignored the inherent infirmity and failed to deal effectively with the important circumstance in the evidence which weighted with the trial court to disbelieve the prosecution case.
We have noticed that the magistrates in conducting the test identification parade have committed a grave error.
In the case of Accused No. 6 PW 9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused.
Similarly, in the identification of the other accused, PW 4 who claimed acquaintance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2.
When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile.
Value of identification parade depends on the the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.
Therefore, the evidence of the earlier identification in this case is unacceptable.
The testimony of PWs 1 and 2 before court is also unsafe to be acted upon.
Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous.
The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial.
Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt.
We accordingly allow the appeal, set aside the conviction and sentence and maintain the order or acquittal.
The bail bonds of the appellants shall stand cancelled.
TNA Appeal allowed.
[/INST]The appellants (A 1 to A 3 and A 5 6), along with Co accused (A 4), were prosecuted under sections 302/149 of the Indian Penal Code.
Test identification parades were conducted by the Magistrates in which A 6 was identified by PWs 1, 2, 3 and 4 and A 1, 2,3,and 5 were identified by PWs 1 and 2.
The trial court held that the identification parade was perfunctory and was of no assistance to the prosecution.
It also rejected the testimony of PWs 1 to 5 by holding that the evidence of PWs 3, 4, and 5 was untrust worthy and that it was unsafe to accept the testimony of other two eye witnesses, PWs 1 and 2 for recording a conviction.
Accordingly the trial court acquitted all the accused persons.
Against the order of acquittal, the State preferred an appeal before the High Court.
The High Court accepted the testimony of PWs 1 and 2, corroborated by the evidence of test identification parade and the testimony of PWs 3 and 4 to find the appellants guilty.
Accordingly the High Court reversed the order of acquittal and convicted the appellants.
Since A 4 was not identified by the PWs 1 to 4, he was given the benefit of doubt and the High Court confirmed his acquittal.
724 In appeal to this court under section 2 of the , it was contended on behalf of the appellants that PWs (1 and 2) were strangers to the assailants and in the circumstances of the case they did not have the opportunity to identify the assailants and consequently their testimony was not free from doubt; the trial court was right in rejecting the testimony of these witnesses but the High Court erred in reversing the order of acquittal and convicting the appellants by accepting the testimony of these witnesses.
Allowing the appeal and setting aside the order of conviction and sentence, this Court, HELD: 1.It is open to Supreme Court to re examine the evidence for the purpose of satisfying itself whether the High Court was justified in reversing the order of acquittal in the facts and circumstances of the case.
In an appeal against acquittal, the Appellate Court is empowered to evaluate the evidence and arrive at its own conclusion.
But where the view taken by the trial court on an appreciation of the evidence is also a plausible view, the Appellate Court shall be slow to interfere with it even when a different view is possible on a reappraisal of the evidence.
[728F G] 1.1 Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
[731F] 2.The evidence given by the witnesses before the Court is the substantive evidence.
In a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time, the court will not ordinarily accept that identification as conclusive.
It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered.
If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration to the evidence give by the witness before the Court.
But in a case where the evidence before the court is itself shaky, the identification before the magistrate would be of no assistance to the prosecution.
[729D E] 2.1 The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression.
725 In the instant case at the scene of the crime when no natural light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake.
Therefore the testimony of PWs 1 and 2 is unsafe to be acted upon.
The overall view of the evidence taken by the Trial Court is reasonable and plausible.
The High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellant was not established beyond reasonable doubt.[731A B, E F G, 730H] 3.
Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.
When persons who have already known the accused persons to be identified are mixed up with the witnesses the test identification is clearly vitiated and is futile.
In the instant case the magistrates in conducting the test identification parade have committed a grave error because in the case of Accused No. 6 he had mixed up along with PWs 1 and 2 a person known to the accused.
Similarly, in the identification of the other accused, PW 4 who claimed acquitance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2.
[731C E]
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<s>[INST] Summarize the judgementN: Criminal Appeal Nos.
107 108 of 1985 From the Judgment and Order dated 20.12.1984 of the Rajasthan High Court in D.B. Civil Habeas Corpus Petition Nos. 1489 and 1575 of 1984.
87 N.L. Jain, Advocate General and Badri Das Sharma for the Appellants.
Ram Jethmalani and Miss Rani Jethmalani for the Respondent.
M.R. Sharma, Dalveer Bhandari and R.N. Poddar for the Intervener, Union of India.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The respondent, an Advocate, was ordered to be detained by the Government of Rajasthan under section 3(2) of the (hereinafter referred to as the Act), on August 14, 1984, and he was actually taken into custody and detained on the following day.
The grounds of detention were supplied to him when he was detained.
Respondent challenged his detention before the Rajasthan High Court by filing two applications under Article 226 of the Constitution on several grounds.
Both the writ applications were clubbed and heard together and disposed of by a common judgment.
The High Court found that the representation of the detenu respondent had not been placed before the Advisory Board within three weeks as required by section 10 of the Act and such violation vitiated the continued detention of the respondent.
It also found that the Advisory Board had not considered the documentary evidence produced by the detenu and the opinion formed by the Board that the respondent should be detained was, therefore, not an appropriate one.
The Court took the view that the materials in the record which had been considered by the Advisory Board in formulating its recommendation to the State Government had not been transmitted to the Government and the same was not available before the State Government when it made the order of confirmation.
The Court was also of the further view that the contents of the intelligence reports referred to in the grounds of detention had not been supplied to the detenu and he had, therefore, been deprived of the opportunity of making an effective representation against his detention.
On these findings the High Court held that the detention of the respondent cannot be upheld and the order of detention dated August 14, 1984, and the subsequent order dated October 22, 1984, directing him to be detained for one year be quashed.
The Court further directed: "In the interest of justice and in the interest of National Security, without curtailing seriously individual liberty, we give the following directions: 88 (1) that the detenu Shamsher Singh being entitled to liberty on account of the above order of ours will be released from the Central Jail, Ajmer; (2) that the detenu Shamsher Singh would be none theless kept either under house arrest or in a place like Dak Bungalow or Circuit House at Ajmer or a nearby place within the radius of 50 kms.
with the members of his family, which would consist of his wife and three minor sons; (3) that if the detenu is kept under house arrest, the expenses will be borne by the detenu, but if he is kept in some Dak Bangalow or other Circuit House, then his expenses will be borne by the State; (4) that the authorities would permit interview with other relatives also, if the detenu is kept outside his house.
In case no stay order is received staying the operation of the judgment of this Court, the detenu shall be released on expiry of three weeks, i.e. on 11.1.85.
" This Court granted special leave to appeal against the judgment of the High Court by its order dated January 18, 1985.
In the mean time, the High Court had suspended the operation of its order till January 21, 1985, and while granting special leave, this Court stayed operation of the judgment.
Learned Advocate General of the appellant State appearing in support of the appeal maintained that each of the four grounds accepted by the High Court in quashing the detention is wrong and not sustainable as a ground for such quashing while Mr. Jethmalani appearing for the respondent supported the reasonings and the ultimate conclusion of the High Court.
We have already stated that the High Court formulated the reasons for its order in the shape of four conclusions and we propose to deal with them seriatim for convenience.
The first ground of attack advanced by the respondent against the order which impressed the High Court is that there has been 89 violation in complying with the provisions of section 10 of the Act.
Indisputably the respondent was taken into custody on August 15, 1984.
On August 22, 1984, the State Government placed before the Advisory Board the grounds on which the order of detention had been made.
By then no representation had been made by the detenu and, therefore, there was no occasion for causing that also to be placed before the Board.
The respondent made a representation on August 28, 1984, which was received by the Superintendent of the Central Jail where the detenu had been lodged and the same was received by the State Government on August 30, 1984.
There is no dispute that the representation was placed before the Advisory Board on September 6, 1984.
As far as relevant, section 10 of the Act provides: ". in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order . " It is the contention of the respondent that his representation against the detention has been placed before the Advisory Board a day too late inasmuch as while section 10 requires the placing to be done within three weeks from the date of detention, the representation has been placed before the Advisory Board on the 22nd day.
There was no dispute before the High Court nor is there any challenge before us that there has been a day 's delay in placing the representation of the respondent before the Board.
The High Court has accepted the respondent 's submission that the requirement under section 10 of the Act was mandatory and failure to place before the Advisory Board the representation of the respondent has vitiated the detention.
While Mr. Jethmalani appearing for the respondent reiterates that stand, learned Advocate General in support of the appeal has contended that as a fact there has been compliance of section 10 of the Act within a week of commencement of the detention and as by than no representation from the respondent had been received, the same could not be placed before the Board along with the grounds of detention.
The State Government received the representation on the 30th August, 1984, and after looking 90 into the contents, caused it to be placed before the Board with due haste and that was done on September 6, 1984.
On the basis of the reference made on the 22nd August, 1984, the Advisory Board had already fixed the consideration of the respondent 's detention at the meeting on September 10, 1984, and as a fact, four days before the date of hearing fixed by the Board the representation was before it.
As a fact, no adjournment had to be given in the matter of consideration of the representation of the respondent on account of a day 's delay in the placing of the representation before the Board.
Learned Advocate General further submitted that when a representation from the detenu is received against his detention by the detaining authority (here the State Government), the contents of the representation are intended to be perused so that the detaining authority may consider whether continuing the detention is proper and expedient.
At that stage it is open to the detaining authority to rescind the order of detention and in that event no further reference to the Advisory Board is warranted.
Since the detaining authority is not a mere post office being required to receive the representation and have it placed before the Advisory Board a little time is bound to be taken in dealing with the representation.
Taking a practical view of the situation some time is bound to lapse between the receipt of the representation and the forwarding of the same for being placed before the Board.
A day 's delay in such process cannot indeed be taken to be fatal so as to warrant the quashing of the detention.
A Constitution Bench in A. K. Roy etc.
vs Union of India Anr.,(1) has upheld the vires of the Act.
It was pointed out in Ichhu Devi Choraria vs Union of India & Ors.(2) that "the burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.
This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law.
This is an area where the Court has been most strict and scrupulous in ensuring observance with the 91 requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred.
" This Court in Khudi Ram Das vs State of West Bengal & Ors., (1) said: "The constitutional imperatives enacted in this article (22) 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.
" The view indicate in these decisions is well accepted and the same is not open to doubt or dispute.
We have already pointed out that within a week of detention of the respondent a reference to the Advisory Board had actually been made in this case but without the respondent 's representation as the same had not been made by then.
Section 10 stipulates that the grounds on which the order has been made and also the representation of the detenu, if any, have to be placed before the Board when the reference is made.
The legislative scheme contained in this section envisages the situation that there may be a case where no representation at all is made or within the time contemplated under section 10, the representation has not been forthcoming.
We agree with the submission of Mr. Jethmalani that the obligation cast under section 10 of the Act is paramount and the strictness with which such a mandate has to be complied with is absolute.
While making of the reference under section 10 with the grounds of detention is a must, furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government.
Though 92 under the general scheme of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter, there is no obligation cast on the detenu to make a representation within any definite time.
We are, therefore, prepared to accept the submission of the learned Advocate General that while considering the compliance with section 10 of the Act emphasis has to be laid on making of the reference and forwarding of the grounds of detention, and the placing of the representation has to be judged on different basis.
We may not be understood to be of the view that it is open to the appropriate Government to withhold the placement of the representation unduly or indefinitely.
When the reference is received and the grounds of detention are available, the Board proceeds to fix a date of hearing for consideration of the justification of detention.
The procedure of the Advisory Board contained in section 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu, if he wants to be heard in person, has to report to the appropriate Government within seven weeks from the date of detention in the manner indicatad in the remaining sub sections of that section.
While dealing with this aspect of the matter it is to be borne in mind that section 10 requires the reference to be placed before the Board within three weeks and section 11 requires the report to be submitted to the appropriate Government within seven weeks.
The legislative scheme in fixing the limit of three weeks in section 10 and the further limit of seven weeks in section 11 allows at least four weeks ' time to the Board to deal with the matter.
The Board on receipt of the reference on August 22, 1984, directed its sitting to be convened for September 10, 1984, for considering the justifiability of the respondent 's detention.
This had apparently been done on the basis of the reference from the appropriate Government but without the representation but the representation was received by the Board in the mean time on September 6, 1984.
The first meeting of the Advisory Board was thus fixed within four weeks from the date of detention and the consideration of the matter by the Board was not required to be adjourned on account of any delay in receiving the copy of the representation of the detenu.
We agree with the submission of Mr. Jethmalani that it is obligatory for the appropriate Government to forward the representation, when received, to the Board without delay because unless on 93 the basis of the representation the appropriate Government rescinds the order of detention, the representation is a document intended for the Board.
Where the representation has been received the same should, as expeditiously as possible, reach the Board.
In this case the State Government received the representation on August 30, 1984, and placed the same before the Board on September 6, 1984.
Six clear days have intervened between the receipt of the representation by Government and the placing thereof before the Board.
Admittedly, if the representation had reached the Board by September 5, 1984, respondent would not be entitled to raise any objection.
Can it, on the facts of the case and in the circumstances indicated, be said to be non compliance with section 10 of the Act? Mr. Jethmalani placed before us a passage from Broom 's Legal Maxims (p. 162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad imporsibilia) has been discussed.
It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non compliance, particularly when it is a question of the time factor.
Keeping the attendant circumstances of this case in view, we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non compliance of section 10 of the Act so as to vitiate the detention.
It is useful to refer to a paragraph from a judgment of this Court in Frances Corolie Mullin vs W. C. Khambra & Ors,(1) while we are on this point.
A Division Bench was dealing with a COFEPOSA detention.
Section 8 of the COFEPOSA requires the appropriate Government to make a reference to the Board within five weeks from the date of detention.
While dealing with an argument referring to this aspect of the matter, the Court observed: "The four principles enunciated by the Court in Jayanarayan Sukul vs State of West Bengal ; , as well as other principles enunciated in other cases, an analysis will show, are aimed at shielding personal freedom against indifference, insensibility, routine and red tape and thus to secure to the detenu the right to make an effective representation.
We agree: (1) the detaining authority must provide the detenu a very early opportunity to make a representation, (2) the detaining 94 authority must consider the representation as soon as possible, and this, preferably must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory Board before the Board makes its report, and (4) the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage.
We, however, hasten to add that the time imperative can never be absolute or obsessive.
The Court 's observations are not to be so understood.
There has to be lee way, depending on the necessities (we refrain from using the word 'circumstances ') of the case.
One may well imagine, a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it.
Several such situations may arise compelling departure from the time imperative.
But no allowance can be made for lethargic indifference.
No allowance can be made for needless procrastination.
But allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved.
" It is useful at this stage also to refer to a later decision of another Division Bench of this Court in Raisuddin alias Babu Tamchi vs State of Uttar Pradesh & Anr.(1) That was a case of detention under the Act and there was a delay of six days between the receipt by the District Magistrate (the detaining authority) of the comments from the Superintendent of Police on the representation and despatch of the representation to the State Government.
While negativing the contention founded on delay and the resultant effect on the order of detention, this Court observed: "In this context we consider it necessary to emphasise that the question whether the representation 95 submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case; if on such examination it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention. " We agree with the principle indicated above and in our opinion, in the facts of the present case, it cannot be said that there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter of causing the same to be placed before the Advisory Board.
We are impressed by the fact that no prejudice has been caused to the detenu on account of the delay of a day beyond the statutory period in placing the representation before the Advisory Board inasmuch as the Advisory Board had caused the matter to be heard on the 10th September 1984 and before the appointed date the representation was before the Board.
The first ground on which the High Court came to hold that the detention was invalid has, therefore, to be negatived.
The next contention advanced on behalf of the respondent which has been accepted by the High Court in support of its conclusion against the detention is that the Advisory Board did not consider the documentary evidence produced by the detenu.
Under section 11 (2) of the Act the report of the Advisory Board has to specify in a separate part thereof the opinion of the Board as to whether or not there is sufficient cause for the detention of the person concerned and as sub section
(4) provides, the proceedings of the Board and its report, except that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
In view of the 96 specific plea raised by the detenu and the argument advanced before the High Court that the Board had not considered the documentary evidence, the State Government placed the report before the High Court and the same has been also placed before us as a part of the record.
On a reference to the report we find that the Advisory Board in the instant case was constituted by three Judges of the High Court, one of them being the Chairman.
That would justify our assumption that the members of the Board by their professional ability and acumen were capable to assess the matter in a proper way and form an objective opinion on the basis of materials produced.
The detailed conclusion with reasons given by the Board has also been disclosed.
That shows that the detenu made before the Board very lengthy arguments and cited a number of authorities in support of his submissions.
The detenu in the instant case is a practising advocate and we are impressed by the learned Advocate General 's submission that we could assume that such a practising advocate must have very properly placed his points before the Board.
The Board is not required to write out a judgment wherein one would expect mention of the respective pleas, materials produced by the parties, specification of contentions advanced and reasons for the conclusion as may have been drawn.
What is required is the unbiased and impartial conclusion on the materials available with reference to the grounds of detention as to whether the detention order when made and the continued detention of the person concerned are justified.
The High Court, in our view, had no justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered by the Board.
The second ground accepted by the High Court has, therefore, to be repelled as not sustainable.
We proceed to examine the next ground, viz., that all the records had not been sent to the State Government by the Board and, therefore, such records were not available for consideration of the State Government at the time of confirmation of the detention.
There is no dispute that the Board had not sent the entire record to the State Government.
Under section 11(2) of the Act, the Board is required to submit its report and there is no obligation cast by the Act that the entire record of the Board should be placed before the State Government.
It is, however, not disputed by learned Advocate General that the report of the Board is only a recommendation and 97 the ultimate decision on the basis of the report as to what further action has to be taken is for the State Government to make.
Section 12 in its two sub sections indicates two alternative courses open to the State Government on the basis of the report.
If the Board is of the view that there is no sufficient cause for detention of the person, the appropriate Government is obliged to revoke the detention and release the detenu.
On the other hand, where the Board is of the view that there is sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention.
The two provisions have been expressed in different languages.
Where the report is against the detention no option is left to the State Government and a duty is cast on it to release the detenu.
When the Board recommends that there is sufficient cause for detention, the State Government may confirm the detention or even revoke it.
Since the final order has to be made by the State Government, we are inclined to accept the submission of Mr. Jethmalani that the entire record or at least all relevant materials should be available to the State Government when it proceeds to apply its mind to decide whether the detention should be continued or revoked.
This view is in accord with produce and is also judicially supported by a decision of this Court.
In Nand Lal Bajaj vs The State of Punjab & Anr.(1), this Court observed: "We were informed that the Advisory Board did not forward the record of its proceedings to the State Government.
If that be so, then the procedure adopted was not in consonance with the procedure established by law.
The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board; but also to apply its mind to the material on record.
If the record itself was not before the State Government, it follows that the order passed by the State Government under section 12 of the Act was without due application of mind.
This is a serious infirmity in the case which makes the continued detention of the detenu illegal.
" We have already indicated that the procedure established by law does not require the entire record to be sent by the Board to the State Government; yet it is certainly proper that the record should 98 be available for being looked into in such manner as the confirming authority considers appropriate before the final decision one way or the other is taken.
The grounds of detention were available with the State Government.
Materials referred to in the grounds of detention were also available in the file.
The only materials which the State Government did not have before it are the documents which the detenu claims to have produced before the Board.
With a view to forming a prima facie impression that there was any material document which would have a bearing on the question at issue, we sent for the record and the same has been produced before us.
On looking into the documents produced by the detenu before the Board, we have come to the conclusion that this did not contain any material which could persuade the State Government to act in a different way.
We are cognizant of the position that it is for the State Government and not for this Court to act as the confirming authority and non compliance with the procedure laid down by law makes the order of detention liable to be quashed.
But we have also already said that non placing of the record of the Board before the appropriate Government is not a failure of compliance with the prescribed procedure.
It is, therefore, that we looked at the record to find out if it can be said to be a defect having material bearing on the question and a matter of prejudice so far as the detenu is concerned.
We reiterate by agreeing with the view of our learned Brother Sen, J. expressed in Nand Lal Bajaj 's case (supra) that the appropriate Government should have the entire material before it along with the report of the Board when it is called upon to consider whether to confirm or not to confirm the detention on the basis of the report of the Board under section 12(1) of the Act.
The Board should therefore, forward the record containing the papers placed before it at the hearing of the matter along with its report so that the matter can be attended by the State Government with due despatch and on taking a full view of the matter.
Our conclusion with reference to the third ground, therefore, is that the High Court was not right in the facts of the case to hold that the order of confirmation of detention was bad.
The respondent contended and the High Court accepted the submission that not providing copies of intelligence reports to the detenu, though the same had been relied upon in the grounds of detention, vitiated the order of detention.
The grounds of detention were divided into two groups, one labelled as criminal activities and the other as extremist activities.
Against extremist activities it was 99 further indicated, ' on the basis of confidential reports '.
The facts by way of accusations were detailed but copies of the reports as such were not furnished.
It is the settled position in law and learned Advocate General did not attempt to contend to the contrary that the detenu has to be supplied all materials relied upon in making the order of detention with a view to being provided an adequate opportunity of making an effective representation.
Personal freedom is an invaluable treasure and the founding fathers took great care to protect it by making appropriate provisions in the Constitution.
Simultaneously taking into consideration the peculiar situations prevailing in the country, the right of the State to order preventive detention was also provided therein.
In order that personal freedom may not be curtailed beyond necessity and the executive administration may not make it an empty guarantee, detailed provisions were made in Article 22 providing an effective procedure in the matter of making of representation and scrutiny of the materials in the presence of the detenu and even hearing him, if he so desired, by an independent Board with adequate judicial bias.
While that is so, the detenu is not entitled to a disclosure of the confidential source of information used in the grounds or utilised for the making of the order.
What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof.
By indicating that the facts have been gathered from confidential reports, a suggestive disclosure of the source has also been made.
The Constitution Bench in the case of State of Punjab & Ors.
vs Jagdev Singh Talwandi,(1) dealt with this aspect of the matter.
The learned Chief Justice, speaking for the Court, observed: "It was further argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which 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".
Reference was made to Beni Madhob Shaw vs State of West Bengal(2) Har Jas Dev Singh vs State of Punjab(3), and Vakil Singh vs 100 State of J & K.(1), and the learned Chief Justice proceeded to state: "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 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 (supra).
" In view of what has been said by the Constitution Bench, there was no force in the submission of the respondent that there has been an infraction of the law in not supplying the respondent copies of the reports or disclosing the source thereof.
The respondent had actually been given in the grounds all material details necessary for making an effective representation.
The fourth ground accepted by the High Court in support of its order is also not tenable in law.
As all the grounds accepted by the High Court for its conclusion are not sustainable for reasons discussed above, the order of the High Court quashing the detention is not supportable.
The appeal is allowed and the order of the High Court is set aside.
In course of the hearing, Mr. Jethmalani had drawn our attention to the fact that many detenus like the respondent have been and are being released, and the respondent who has already under gone more than two thirds of the period should be released.
That is a matter entirely for the detaining authority to decide and we hope and trust that notwithstanding the reversal of the decision of the High Court, the State Government will proceed to review the matter expeditiously and make such appropriate directions as it consider fit.
N.V.K. Appeal allowed.
[/INST]The respondent, an Advocate, was ordered to be detained by the State Government under Section 3(2) of the National Security Act, 1950.
He was taken into custody and detained.
The grounds of detention were supplied to him when he was detained.
The respondent challenged his detention in the High Court.
The High Court found: (1) that the representation of the detenu respondent had not been placed before the Advisory Board within three weeks as required by section 10 of the Act and such violation vitiated the continued detention of the respondent.
(2) that the Advisory Board had not considered the documentary evidence produced by the detenu and therefore the opinion formed by the Board that the respondent should be detained was not an appropriate one, (3) that the materials in the record which had been considered by the Advisory Board in formulating its recommendation to the State Government had not been transmitted to the Government, and the same was not available before the State Government, when it made the order of confirmation, (4) that the contents of the intelligence reports referred to in the grounds of detention had not been supplied to the detenu and he had, therefore, been deprived of the opportunity of making an effective representation against his detention.
The High Court consequently held that the detention of the respondent cannot be upheld, and directed the order of detention directing him to be detained for one year be quashed.
In the appeal to this Court, it was contended on behalf of the State appellant, that the four grounds accepted by the High Court in quashing the detention was wrong and not sustainable as a ground for such quashing.
It was further contended that as a fact there had been compliance of section 10 of the Act within a week of commencement of the detention and as by then no representation from the respondent had been received, the same could not be placed before the Board along with the grounds of detention.
The respondent is a practising advocate and must have therefore properly placed his points 84 before the Advisory Board.
As the Board had not been sent the entire records, all the records were not available for the consideration of the State Government at the time of confirmation of the detention.
The respondent had actually been given in the grounds all the material details necessary for making an effective representation.
Allowing the Appeal, ^ HELD : 1(a) While making of the reference under section 10 with the grounds of detention is a must, furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government.
Though under the general scheme of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter, there is no obligation cast on the detenu to make a representation within any definite time.
[91 H; 92 A] (b) The procedure of the Advisory Board contained in section 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu, if he wants to be heard in person, has to report to the appropriate Government within seven weeks from the date of detention.
[92 D E] (c) The legislative scheme in fixing the limit of three weeks in section 10 and the further limit of seven weeks in section 11, allows at least four weeks ' time to the Board to deal with the matter.
[92 E] (d) It is obligatory for the appropriate Government to forward the representation, when received, to the Board without delay because unless on the basis of the representation the appropriate Government rescinds the order of detention, the representation is a document intended for the Board.
Where the representation has been received the same should, as expeditiously as possible, reach the Board.
[92 H; 93 A] In the instant case the Board on receipt of the reference on August 22, 1984, directed its sitting to be convened for September 10,1984 for considering the justifiability of the respondents detention.
The State Government received the representation on August 30,1984, and placed the same before the Board on September 6,1984.
Six clear days had intervened between the receipt of the representation by Government and the placing thereof before the Board.
Admittedly, if the representation had reached the Board by September 5, 1984, the respondent would not be entitled to raise any objection.
Keeping the attendant circumstances in view, it is difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non compliance of section 10 of the Act so as to vitiate the detention.
It cannot also be said that there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter of causing the same to be placed before the Advisory Board.
No prejudice has been caused to the detenu on account of the delay of a day 85 beyond the statutory period in placing the representation before the Advisory Board inasmuch as the Advisory Board had caused the matter to be heard on the 10th September, 1984 and before the appointed date the representation was before the Board.
B; D; 95 D E] A.K. Roy, etc.
vs Union of Indian & Anr.
, ; ; Ichhu Devi Choraria vs Union of India & Ors., ; ; Khudi Ram Das vs State of West Bengai & Ors.,[1975] 2 S.C.R. 832; Frances Coralie Mullin vs W.C. Khambra & Ors.,[1980] 2 S.C.R. 1095 and Raisuddin alias Babu Tamchi vs State of Uttar Pradesh & Anr., ; ; referred to. 2(a) Under section 11(2) of the Act the report of the Advisory Board has to specify in a separate part thereof the opinion of the Board as to whether or not there is sufficient cause for the detention of the person concerned and sub section
(4) provides, the proceedings of the Board and its report, except that part of the report in which the opinion of the Advisory Board is specified shall be confidential.
[95 G H] (b) The Board is not required to write out a judgment.
What is the unbiased and impartial conclusion on the materials available with reference to the grounds of detention as to whether the detention order when made and the continued detention of the person concerned are justified.
[96 E] In the instant case, the Advisory Board was constituted by three Judges of the High Court, one of them being the Chairman.
That justifies the assumption that the members of the Board by their professional ability and acumen were capable to assess the matter in a proper way and form an objective opinion on the basis of materials produced.
The detailed conclusions with reasons given by the Board show that the detenu made before the Board very lengthy arguments and cited a number of authorities in support of his submissions.
The High Court had therefore no justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered by the Board.
[96 B C; 96 F] 3.
(a) Under section 11(2) of the Act, the Board is required to submit its report and there is no obligation cast by the Act that the entire record of Board should be placed before the State Government.
Section 12 in its two subsections indicates two alternative courses open to the State Government on the basis of the report.
If the Board is of the view that there is no sufficient cause for detention of the person, the appropriate Government is obliged to revoke the detention and release the detenu.
On the other hand, where the Board is of the view that there is sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention.
The two provisions have been expressed in different language.
[96 G H; 97 A B] Nand Lal Bajaj vs State of Punjab & Anr.
1981 Cr. L.J. 1501, referred to.
86 (b) The procedure established by law does not require the entire record to be sent by the Board to the State Government; yet it is certainly proper that the record should be available for being looked into in such manner as the confirming authority considers appropriate before the final decision one way or the other is taken.
The grounds of detention were divided into two groups, one labelled as criminal activities and the other as extremist activities.
[97 H; 98 A] In the instant case, the documents produced by the detenu before the Board did not contain any material which could persuade the State Government to act in a different way.
The High Court was therefore not right to hold that the order of confirmation of detention was bad.
[98 F G] 4.
(a) Personal freedom is an invaluable treasure and the founding fathers took great care to protect it by making appropriate provisions in the Constitution.
Simultaneously taking into consideration the peculiar situations prevailing in the country, the right of the State to order preventive detention was also provided therein.
In order that personal freedom may not be curtailed beyond necessity and the executive administration may not make it an empty guarantee, detailed provisions were made in Article 22 providing an effective procedure in the matter of making of representation and scrutiny of the materials in the presence of the detenu and even hearing him, if he so desired, by an independent Board with adequate judicial bias.
[99 B C] (b) The detenu is not entitled to a disclosure of the confidential source of information used in the grounds or utilised for the making of the order What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof By indicating that the facts have been gathered from confidential reports, a suggestive disclosure of the source has also been made.
[99 D E] State of Punjab & Ors. vs Jagdev Singh Talwandi, ; ; Beni Madhob Shaw vs State of West Bengal, AIR 1973 SC 2455; Har Jas Dev Singh vs State of Punjab, ; and Vakil Singh vs State of J & K, AIR 1974 SC 2337, referred to.
In the instant case, the grounds of detention were divided into two groups, one labelled as criminal activities and the other as extremist activities.
Against extremist activities it was further indicated, 'on the basis of confidential reports '.
The facts by way of accusations were detailed, but copies of the reports as such were not furnished.
The respondent had actually been given in the grounds all material details necessary for making an effective representation.
[98 H; 99 A]
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<s>[INST] Summarize the judgementivil Appeal No. 1552 of 1966.
735 Appeal by special leave from the judgment and order dated June 8, 1966 of the Mysore High Court in C.R.P. No. 1118 of 1964.
M. C. Chagla and R. Gopalakrishnan, for the appellant.
M. R. Ramamurthi, section section Javali and M. Veerappa, for the respondent.
The Judgment of the Court was delivered by Vaidailyngam J.
this appeal, by special leave, is against the judgment of the Mysore High Court, dated June 8, 1966 in Civil Revision Petition No. 1118 of 1964.
The respondent land lord filed an application, dated July 6, 1962 under section 21 (1) (j) of the Mysore Rent Control Act, 1961 (Mysore Act XXII of 1961) (hereinafter called the Act) before the Rent Controller for eviction of the tenants (the appellants herein) on the ground that the premises were reasonably and bonafide required by him for the immediate purpose of demolishing and erecting of a new building.
According to the respondent the premises were old and were (not suitable for continued occupation.
The respondent had also stated in his application that he had obtained the necessary licence for erecting a new building after demolition of the existing building and that he had made all preparations for demolition and erection of new buildings on the site.
The appellant tenant contested the claim of the landlord on several grounds.
He pleaded that the premises were not old and that it was quite suitable for occupation and it does not require any re construction or remodelling.
The allegations that the building was old and required to be reconstructed were not bona fide and had been made by the landlord only as a pretext for evicting the tenant.
The tenant further pleaded that the requirement of the landlord was neither reasonable nor bona fide.
In any event, the tenant claimed that he should be entitled to be paid the value of the improvements that had been effected by him.
The Rent Controller, by his order dated January 22, 1964 accepted the claim of the respondent and ordered eviction of the appellant granting the tenant one month 's time for delivering vacant possession.
Though the Consulting Engineer who gave evidence as P.W. 2 on behalf of the respondent had stated that the building was over 60 years old but nevertheless it could go co for about 15 years more, the Rent Controller actually found that the building was more than 50 years old and that it was an old fashioned one.
He further found that when the landlord desired to pull it down and put up a modern building thereon, it could not under the circumstances, be said that his claim was not bona fide or reasonable 736 and that the intention of the landlord in pulling down the building and erecting a new one to get a better return was certainly understandable.
The Rent Controller further found that the landlord had proved that he had sufficient means to construct the building and that he had also obtained the necessary sanction from the Municipality concerned for reconstruction of the building.
In view of all these circumstances, the Rent Controller found that the requirement of the landlord was quite reasonable and bona fide.
Regarding the claim of the tenant for payment of improvements before eviction is ordered, the Rent Controller found that such a claim, even if established, could not stand in the way of the landlord getting possession of the premises.
Ultimately the application filed by the landlord was allowed.
The findings recorded by the Rent Controller were confirmed by the learned District Judge, by his judgment dated October 19, 1964 in A.S. No. 43 of 1964 taken before him by the tenant.
The revision filed by the appellant before the High Court was rejected by order dated June 8, 1966.
Mr. Chagla, learned counsel appearing for the appellant, contended that the interpretation placed by all the Courts on section 21 (j) of the Act was erroneous.
According to the learned counsel, unless the landlord was able to establish that the condition of the building was such that it required immediate demolition and re construction, no eviction of the tenant could be ordered under section 21 (1) (j) of the Act.
On the findings of the Courts, based upon the evidence of the Engineer, that though the building was old it could continue to exist for another 15 years, it should have been held that the conditions mentioned in section 21 (I) (j) were not attracted to justify an order of eviction of the tenant.
Mr. Ramamurthi, learned counsel for the respondent, pointed out that in order to attract section 21 (I) (j) it was not necessary that the landlord should establish that the condition of the building was such that it required to be demolished immediately.
On the other hand, the sub section made it clear that the requirement contemplated was that of the landlord and once his requirement had been held by all the Courts to be reasonable and bona fide, the order passed for eviction of the tenant was fully justified.
Having due regard to the scheme of the Act, we are satisfied that the interpretation placed upon section 21(1)(j) by the High Court is correct.
Section 21 (1), while placing a general embargo against a landlord from evicting a tenant, recognises, in its.
proviso the circumstances under which a landlord could seek recovery of 737 possession of a premises.
The ground upon which the landlord asked for eviction, in the present case, was based on section 21 (1) (j).
The material provision is as follows : "21.
(1) Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant: Provided that the court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely: . . . . . (j) that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished; . . . . . .
According to Mr. Chagla, the words 'reasonably and bona fide required ', occurring in this clause, must be interpreted to have reference to the condition of the building, the demolition of which is sought to be made and those words have no reference to any intention entertained by the landlord.
The mere fact that a landlord may bona fide and reasonably entertain an idea of demolishing the building and reconstructing the same with a view to putting the property to a more profitable use after construction, will not satisfy the requirements of the said clause.
That is, according to the learned counsel, the condition of the building must be such that it is immediately necessary to demolish it, in which case alone eviction under cl.
(j) could be ordered.
We are not inclined to accept this construction sought to be placed by the appellant on the clause in question.
The proviso to section 21 (1) enumerates the various circumstances under which a landlord may seek to recover possession of the property from his tenant.
The requirement contemplated under clause (j) of the proviso to sub section
( 1 ) is that of the landlord and it does not have any reference to the condition of the building as such.
What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one.
No doubt, as to whether the landlord 's requirement is reason 738 able and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the.
building, and other steps taken by him in that regard.
In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord.
In our opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition.
That the condition of the property may be such which requires immediate demolition is emphasized in cl.
(k) of the proviso.
When such a specific provision has been made in cl.
(k), the condition of the building cannot come into the picture nor could it have been dealt with again in cl.
So the requirement under cl.
(j) is that of the landlord and cannot have any reference to the building.
This Court, in Neta Ram vs Jiwan Lal (1) in interpreting no doubt a slightly differently worded provision in section 13(3)(a)(iii) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 B.K. (8 of 2006 BK) held that one of the circumstances which could be taken into account in considering the requirements of the landlord with reference to the existing building is 'the possibility of its being put to a more profitable use after construction '.
In the case 'before us all the Courts have concurrently held that the requirement of the landlord is reasonable and bona fide and that he had obtained the necessary sanction from the municipality concerned and that the landlord had also the means for reconstruction of the building.
If the landlord does not commence demolition of the premises within the period specified in the order of the Court, the tenant is given a right under section 26(1) to issue a notice to the landlord of his intention to occupy the pre mises from which he had been evicted and also to apply to the Court for relief if the landlord does not comply with his request.
Again under section 27, the tenant has got a right to occupy the new building on its completion provided he satisfies the requirements contained in that section.
Under section 2 8 (I), the landlord is bound to intimate the tenant from whom he had received a notice under section 27 the date on which the erection of the new building will be completed from which date the tenant will be entitled to occupy the same.
Mr. Chagla has referred us to a decision of the Madras High Court in Mehsin Bhai vs Hate & Company (2).
The section which came up for consideration before the Madras High Court was section 14(3) of the Madras Buildings (Lease and Rent Control) Act, 1960 (Act XVIII of 1960) which was as follows: (1) [1962] Supp. 2 S.C.R. 623.
(2) 739 14(1)(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.
" That clause is substantially similar to section 21(1)(j) of the Act.
In the Madras case it is seen that the building from which the tenant was sought to be evicted was in good condition and there was no danger of its failing for another 20 years though the building was old.
Under those circumstances when the landlord applied under section 14(1) (h) of the Madras Act for eviction on the ground that he wished to demolish the building for the purpose of erecting a new building thereon, the High Court affirmed the decision of the Subordinate Court declining relief to the landlord, Though the learned Judge states that landlords May bona fide require such buildings, particularly old buildings in their own interest for demolition and reconstruction, he holds that it is equally possible that the mere fact that a building is old may be taken advantage of by a landlord to put forth such pretext, his real object being ulterior and not bona fide ,for the purpose of reconstruction.
We have no hesitation in agreeing with the learned Judge 's observation that the landlord must prove the reasonableness and bona fide nature of his requirement.
But, if the learned Judge intended to Iay down a proposition of law that under section 14 ( I ) (b) of the Madras Act, similar to section 21 ( 1) (j) of the Act a landlord cannot recover possession of the property for the purpose of re construction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous.
There is absolutely no justification for putting such a narrow interpretation on the clause in question.
Mr. Chagla further urged that before his client is evicted his, claim for compensation should have been considered by the Rent Controller.
It is enough to say that, as pointed out by the High Court, that claim does not arise for consideration in these proceedings.
We may also state that a further contention regarding them validity of the notice to quit issued by the landlord which was taken before the High Court and held against the appellant, has not been canvassed before us.
In the result, the appeal fails and is dismissed with costs.
The petitioner/appellant undertaken to vacate the premises within a month from today.
Y.P. Appeal dismissed.
[/INST]The tenant of the appellant a Jagirdar, died without leaving any male issues.
His distant relations the respondents, took possession of his properties.
Thereupon the appellant brought a suit claiming possession.
of the properties as he was the owner.
The trial court dismissed the suit holding that the civil court has no jurisdiction to entertain the suit, and that in view of the Jagir Abolition Act, 1951 which was enacted during the pendency of the sit and with the vesting of the suit properties in the State, the appellant was not entitled to claim.
The first appellate court reversed these findings and held that though the suit properties had vested in the State, it was for the State to get itself impleaded, and as the State had not got itself impleaded, it was open to the appellant to press the suit.
In view of these conclusions, the appellate court demanded the suit to decide the other undecided issues.
After the remand, the trial court negatived the respondents defendants contention and decreed the suit.
In appeal that decree was affirmed.
In second appeal, the High Court agreed with the courts below on all issues except that relating to the effect of abolition of Jagirs.
It held that under the Jagir Abolition Act, the appellant lost his title to the suit properties.
In its view that issue was not concluded by the decision of the appellate court made before remand as the same had not been appealed against, since the court had inherent power to consider the correctness of that order.
In appeal, this Court: HELD : The case must be remanded for determination of the right of all the parties after impleading the State as a party.
The correctness of the remand order was not open to review by the High Court.
The order in question was made under rule 23, Order 41, Civil Procedure Code.
That order was appealable under Order 43 of that Code.
As the same was not appealed against, its correctness was no more open to examination in view of section 105 (2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness.
The High Court has misconceived the scope of its inherent powers.
Under the inherent power of courts recognised by section 151, Civil Procedure Code, a court has no power to do that which is prohibited by the Code.
Inherent jurisdiction of court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be involved.
In other words the court cannot make use of the special provisions of section 151 of the Code where a party bad his remedy provided elsewhere in the Code and be neglected 208 to avail himself of the same.
Further the power under section 151 of the Code cannot be exercised as an appellate power.
The appellant Jagirdar had not lost all rights in the suit properties.
The suit properties vested in the State in view of the Jagir Abolition Act.
But it was conceded at the bar that if the appellant was proved to have been the owner of the suit properties on the day the Jagir Abolition Act came into force, he was entitled to the compensation provided in that Act.
Therefore the appellant was interested in establishing that on the date Jagir Abolition Act came into force, he was the full owner of the suit properties.
[210 C] Himatrao vs Jaikishandas and Ors. ; followed.
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<s>[INST] Summarize the judgementAppeals Nos.
2464 and 2465 of 1966.
Appeal from the judgment and order dated April 8, 1964 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 75 D of 1962.
M.C. Chagla and Lily Thomas, for the appellants (in C.A. No. 2464 of 1966) and the respondents (in C.A. Nos. 2465 of 1966).
A.K. Sen and 1.
N. Shroff, for the respondents (in C.A. E No. 2464 of 1966) and the appellants (in C.A. No. 2465 of 1966).
The Judgment of the Court was delivered by Bachawat, J.
One Mehtab Singh, the landlord, is the owner of the premises No. 279, situate in Dariba Kalan, Delhi.
His son Muni Subrat Dass resides on the first floor while the ground F floor is in the occupation of the tenants, Bahadur Singh and Daryao Singh where they set up a workshop and installed machinery for manufacturing purposes.
According to Muni Subrat the workshop was a nuisance and caused him great annoyance.
He made a number of complaints to the Municipal Committee for stoppage of the nuisance.
On June 10, 1954, Muni Subrat G and the tenants agreed in writing to refer the disputes between them to the arbitration of two named arbitrators.
The landlord was not a party to the agreement.
The arbitrators made their award on July 14, 1954.
The award directed that (i) Muni Subrat would withdraw the applications pending before.
The Municipal Committee; (ii) the tenants would be at liberty to run the workshop during the day time upto December 31, 1957; (iii) on January 1, 1958, the tenants would remove the machinery; (iv) on the same date they would give vacant possession of the ground floor to the landlord and (v) the tenants would pay rent 434 to landlord for the period of their occupation.
.The award was signed by the arbitrators and the parties to the reference and was attested by the landlord.
It was filed in COurt under section 14 of the .
On August 26, 1954, the tenants and Muni Subrat stated in Court that they had no objections against the award.
On the same date the Court pronounced judgment according to the award and a decree followed accordingly.
On August 23, 1958 Muni Subrat and the landlord jointly applied for execution of the decree `for delivery of possession of the premises.
In anticipation of the application for execution of the decree, on January 9, 1958 the tenants filed an application under sec.
47 of the Code of Civil Procedure raising the following objections to the execution of the decree as to the delivery of possession of the premises to the landlord: (i) the award was beyond the scope of the reference and was invalid and the decree based on the invalid award was void; (ii) the decree was passed in contravention of the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) and was void; and (iii) the landlord could not execute the decree.
The Subordinate Judge, First Class, Delhi, dismissed the objection.
He held that (i) that the objection that the award was without jurisdiction could not be raised under sec.
47; (ii) the decree was not in contravention of the Rent Act; and (iii) the landlord was entitled to execute the decree.
On appeal,the Additional Senior Sub Judge, Delhi, held that (i) the question as to the validity of the award could not be agitated in the execution proceedings; (ii) the decree for eviction was passed in contravention .of the Rent Act and was void; (iii) the appeal against the order allowing the landlord to execute the decree was incompetent and (iv) Muni Subrat was entitled to execute the decree for removal of the machinery but he could not execute the decree for eviction.
In the result, he dismissed the appeal in part so far 'as it was directed against the landlord, allowed the appeal in part against Muni Subrat and declared that he could get the machinery removed but he could not claim eviction.
The tenants and the decree holders filed two separate appeals in the Punjab High Court at Delhi.
Gurdev Singh 1.
held that (i) the first appeal filed against the order in favour of the landlord was competent; (ii) the decree for eviction did not contravene the provisions of the Rent Act and (iii) the landlord was entitled.
to execute the decree for eviction.
In the result, he accepted the decree holder 's appeal and dismissed the tenant 's appeal.
The tenants filed an appeal under clause 10 of the Letters Patent.
A Divisional Bench of the High Court held that (1) the objection to the validity of the award could not be entertained in the execution proceedings; (2) the decree directing delivery of possession of the premises to the landlord was passed in contravention of the Rent Act; (3)neither the landlord nor Muni Subrat could 435 enforce that part of the decree; (4) the decree directing removal of the machinery was 'separable and was void and Muni Subrat was entitled to execute it.
In the result, the DiviSional Bench allowed the appeal and restored the order of the Additional Senior Sub Judge, Delhi.
In passing this order the Bench overlooked that the Senior Sub Judge had dismissed the appeal against the landlord as incompetent.
Having regard to the fact that the appeal against the landlord was competent, the Bench should have also set aside the order favouring the landlord.
The present appeals have been filed by the tenants as also by the landlord and Muni Subrat after obtaining certificates from the High Court.
The following points arise for determination in these appeals, (1) Can the objection as to the ' validity of the award be raised after a decree is passed ' on the award, and can the decree be pronounced to be a nullity on the ground that it was based on an invalid award; (2) Is the decree directing the tenants to deliver possession of the premises to the landlord a nullity on the ground that it was passed in contravention of the Rent Act; (3) Is this portion of the decree enforceable either by the landlord or by Muni Subrat; and (4) Is the decree so far as it directs removal of the machinery valid and enforceable by Muni Subrat.
The award was filed in Court under section 14 of the and on notice to the tenants and in their presence a decree, was passed according to the award under section 17.
It is not Open to the tenants now to take the objection that the award was in excess of the 'authority of the arbitrators or was otherwise invalid.
Having regard to the scheme of sections 14 'to 17 and 31 to 33 all ' questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court.
An award which is invalid on any ground can be set aside under section 30.
After a decree is passed on the award it is not ' open to the parties to the reference to raise any ' objection as to ' the validity ' of the award.
As between them the decree conclusively determines that the award is valid.
Nor can the decree be pronounced to be a nullity on the ground that ' the award was invalid.
A decree passed on an invalid award in arbitrations in suits under the second schedule to the Code of Civil ' Procedure, 1908, stood on the same footing, see Rabindra Deb Manna vs Jogendra Deb Manna(1) where Rankin, '1. 'observed: "An award made out of time, Or otherwise 'invalid, is no longer a nullity it is 'liable to be set aside by the Court, but, if not set aside, a decree made for its enforcement is not without jurisdiction, Shib Kristo Daw vs Satish Chandra Dutt The next question is whether the decree directing the tenant to deriver possession of the premises to the landlord was.
passed A.I.R. 1923 Cal.
410, 413.
436 in contravention of section 13 (1) of the Delhi and Ajme Rent Control Act, 1952.
That sub section provided that: "Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated): Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied. " Then followed a catalogue of grounds on which the decree for recovery of possession could be passed.
The other sub sections to section 13 showed that a decree or order could be passed on one of those grounds in a suit or proceeding instituted by a landlord against a tenant.
Section 13 (1) prohibited the Court from passing a decree or order for recovery of possession of any premises in favour of a landlord against a tenant except in such a suit or proceeding and unless the Court was satisfied that a ground of eviction existed.
Now the decree in the present case is on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant.
The Court passed the decree according to an award under section 17 of the in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed.
On the plain wording of section 13 (1 ) the Court was forbidden to pass the decree.
The decree is a nullity and cannot be enforced in execution.
The contusion that a decree passed in contravention of section 13 (1) is a nullity is supported by the decision in Peachey Property Corpn.
vs Robinson(1).
In that case the landlords issued a writ to recover possession of a flat let to tenants who resided there for non payment of rent.
No appearance was entered and judgment was signed in default of appearance.
On an application for leave to issue a writ for possession, the Court held that the judgment was a nullity as it was given without any determination that it was reasonable to do so in contravention of section 3 (1) of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933.
As the decree was a nullity the Court refused to issue a writ for possession.
Winn, L.J. said : "Accordingly,the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, section 3(1) was made to apply to these premises and that sub section provided: 'No Order or judgment for the recovery.
of possession of any dwelling house to which the principal Acts apply or for the ejection of a tenant therefrom shall be (1) , 983. 437 made or given unless the Court considers it reasonable to make such an order or give such a judgment. and. " One or other of two additional conditions is satisfied.
It is perfectly plain from what I have said that before the judgment in default of appearance was entered no court had determined whether it was reasonable to make such an order or give such a judgment.
In my view, therefore, by express force of that section the judgment in default of appearance here was a nullity.
It was, according to its terms, a judgment for recovery of possession of these premises, and that is something which the section prohibits unless there has been a prior determination by the court that it was reasonable to give such a judgment." As the decree for the delivery of possession of the premises to the landlord is a nullity it cannot be enforced or executed either by the landlord or by the landlord 's son Muni Subrat.
The decree in so far as it directs the removal of the machinery from the premises is clearly valid and separable from the rest of the decree and may be executed by Muni Subrat.
In the result, it is declared that (a) the objections as to the validity of the award cannot be entertained in the execution proceedings; (b) the decree in so far, as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed either by Muni Subrat or by Mehtab Singh and (c) the decree in so far as it directs removal of the machinery is valid and may be executed by Muni Subrat.
Subrat to the declarations mentioned above the appeals are dismissed.
There will be no order as to the costs in this Court.
Y.P. Appeals dismissed.
[/INST]After the reply of the respondent a railway employee in respect of certain charges p.referred against him was received, a departmental enquiry was held.
The Enquiring Officer found all the charges proved.
A show cause notice, was then served stating that it had been tentatively decided by the Chief Commercial Superintendent that the respondent should be dismissed from service.
This notice was served after the ' Chief Commercial Superintendent had recorded an order stating that he had seen the enquiry proceedings, that the procedure had been correctly followed, and that he agreed with the findings of the Enquiring Officer.
The respondent submitted his explanation; thereafter his dismissal was ordered.
The respondent filed a writ petition in the High Court.
The single Judge allowed the petition holding that the Chief Commercial Superintendent was bound to> pass a detailed order expressing his views about each of the charges and that a general agreement with the findings of the Enquiry Officer did not satisfy the requirements of r. 1713 of the Conduct and Disciplinary Rules.
This decision was affirmed by the Division Bench.
In 'appeal, this COurt, HELD: The: appeal must be allowed.
(i) Rule 1713 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge.
All that the Rule requires is that the record of the enquiry should be considered 'and disciplinary authority should proceed ' to give its findings on each charges.
This does not and cannot mean that it is obligatory on the disciplinary authority to discuss the evidence and the facts and circumstances established at the departmental enquiry in detail and write as if it were an order or a judgment of a judicial tribunal.
The rule certainly requires the disciplinary authority to give consideration to the record of the proceedings which was done by the Chief Commercial Superintendent.
When he agreed with, the findings of the Enquiry Officer that all the charges mentioned in the charge sheet had been established it meant that he was affirming the findings on each charge and that would ' certainly fulfil the requirement of the Rule.
[345 H 346 D] (ii) There was no force in the respondent 's contention that the disciplinary authority was not entitled to have finally made up its mind before the explanation to the second show cause notice had been received by it and at a stage prior to the issuance of the notice.
The procedure which is. to be followed under article 311(2) of the Constitution of 'affording a reasonable opportunity includes the.
giving of two notices, One at the enquiry stage and the other when the competent authority as a result of the enquiry tentatively determines to inflict a particular punishment.
344 It is quite obvious that unless the disciplinary or the competent 'authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination.
[346 E] Khem Chand vs Union of India & Ors., ; , followed.
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<s>[INST] Summarize the judgementAppeal No. 124 of 1962.
Appeal by special leave from the judgment and order dated November 14, 1960, of the Punjab High Court (Circuit Bench), Delhi in Civil Revision Case No. 224 D of 1959.
Janardan Sharma, for the appellant.
R.Ganapathy Iyer and P. D. Menon, for the respondents.
September 25.
The judgment of the Court was delivered by 231 DAS GUPTA J.
This appeal by special leave raises the question of validity of r. 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, that were framed by the President and published by a notification dated February 28, 1957.
Rule 12(4) is in these words : "12(4).
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him, on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
" The question arises in this way.
On July 1, 1949, the appellant, who was a permanent Sub Inspector of Co operative Societies, Delhi, was suspended by the Deputy Commissioner, Delhi,.
On July 9 he was served with a charge sheet under r. 6(1) of the Rules which had been framed by the Chief Commissioner, Delhi.
On a consideration of the report made by the officers, who had held an enquiry into the several charges against him the Deputy Commissioner, Delhi, made an order on December 17, 1951, dismissing this appellant.
The appellant filed a suit on May 20, 1953, praying for a declaration that the order of dismissal made against him was invalid in law being in violation of article 311 of the Constitution of India and for a further declaration that, he still continued to be in service of the Government.
232 The Trial Court decreed the suit on May 3 1, 1954, declaring that the plaintiff 's dismissal was void and inoperative and that the plaintiff continued to be in service of the State of Delhi at the date of the institution of the suit.
The appeal by the Government of India was dismissed by the Senior Subordinate judge, Delhi on December 31, 1954.
The decree was however set aside by the Punjab High Court on November 1, 1955, in Second Appeal by the State and the suit was dismissed.
Against this decision of the High Court, the appellant preferred an appeal by special leave to this Court.
This Court held that the provisions of article 311(2) had not been fully complied with and the appellant had not had the benefit of all the constitutional protections and accordingly, his dismissal could not be supported.
The Court then passed the following order : "We, therefore, accept this appeal and set aside the order of the Single judge and decree the appellant 's suit by making a declaration that the order of dismissal passed by the Deputy Commissioner on December 17, 1951 purporting to dismiss the appellant from service was inoperative that the appellant was a member the service at the date of the institution of the suit out of which, this appeal has arisen.
The appellant will get costs throughout in all courts.
Under Order XIV Rule 7 of the Supreme Court Rules, we direct that the appellant should be paid his fees which we assess at Rs. 250".
The judgment of this Court wag delivered on December 13, 1957, and is reported in [1958] Supreme Court Reports at page 1080.
233 On April 20, 1955, i.e., shortly after the Government appeal had been dismissed by the Senior Subordinate judge, the appellant instituted a suit in the Court of the Senior Sub judge, Delhi, out of which the present appeal has arisen.
The defendants in this suit are: 1.
The Union of India; 2.
The State of Delhi; and 3.
The Collector and Registrar, Co operative Societies, Delhi.
In this suit the plaintiff claims, on the basis of the decree obtained by him in the earlier suit, a sum of Rs. 14,042/8/ as arrears of salary 'and allowances.
The hearing of the suit was however stayed by the Trial Court on December 26, 1955, in view of the pendency of the appellant 's appeal in this Court against the decision of the Punjab High Court dismissing the earlier suit.
As already stated, this Court delivered the judgment in that appeal on December 13, 1957.
On December 26, 1957, the appellant made an application to the Trial Court praying that the hearing of the suit be taken up.
Before, however, the suit could be disposed of, the defendants made an application to the Subordinate judge, on August 7, 1958 stating that the disciplinary authority had on a consideration of the circumstances of the case, decided to hold a further enquiries against this appellant on the allegations on which he had been originally dismissed and that, consequently, the appellant should be deemed to have been placed under suspension by the appointing authority from December 17, 1951, the date of the original order of dismissal.
Accordingly, it was contended by the defendants that the plaintiff 's claim in the present suit was untenable.
On February 14, 1959, the Trial Court made an order in these terms " 'It is hereby ordered that the proceedings in the case shall remain stayed until the time the order of suspension is revoked under Rule (5) of the Central Civil Service (Classification, Control and Appeal) Rules, 1957 referred to above 234 or its being set aside by a competent tribunal or authority whichever event occurs earlier.
The hearing of the suit is adjourned sine die and the proceedings shall be revived on the application of the plaintiff after the occurrence of any of the two events referred to above.
" Against this order the appellant filed a revisional application in the Punjab High Court challenging the validity of r. 12(4) of the Central Civil Service (Classi fication, Control and Appeal) Rules, 1957.
A Division Bench of the High Court dismissed the revision petition rejecting the appellant 's contention against the validity of r. 12(4).
Against that decision of the High Court the appellant has filed the present appeal after obtaining special leave from this Court.
It is clear that if r. 12(4) of the Central Civil Service (Classification, Control and Appeal) Rules, 1957,is valid the appellant must be deemed to have been placed under suspension from December 17, 1951.
For, it is not disputed that after the penalty, of dismissal imposed on him had been rendered void by the decision of this Court, the disciplinary authority did in fact decide to hold a further enquiry against him on the allegations on which this penalty of dismissal had originally been imposed.
It is equally clear that if the appellant be deemed to have been placed under suspension from December 17, 1951, the order made by the Trial Court staying the hearing of the suit and the order of the High Court rejecting the revisional application are not open to challenge.
The sole question therefore is whether r. 12(4) is valid in law.
This rule forms part of the rules made by the President in exercise of the powers conferred on him by the proviso to article 309 and cl. 5 of article 148; of the Constitution.
The main provisions of article 309 is that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of per sons appointed, to public services and posts in connection 235 with the affairs of the Union or of any State.
The proviso to this Article makes it competent for the President or such other person as he may direct, in the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article.
Clause 5 of article 148 makes a similar provision in respect of ' the conditions of service in the Indian Audit and Accounts Department and provides inter alia that subject to the provisions of the Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.
Mr. janardan Sharma rightly contends that this lower of the President to make rules is subject to all the provisions of the Constitution and consequently if in making the rule the rule making authority has contravened any of the provisions of the Constitution the rule is invalid to the extent of such contravention.
According to Mr. Sharma r. 12(4) contravenes the provisions of article 142, article 144, article 19(1) (f), article 31 and also article 14 of the Constitution.
The argument that the impugned Rule contravenes article 142 and article 144 is practically the same.
Article 142 provides inter alia that any decree passed by the Supreme Court in the exercise of its jurisdiction shall be enforceable throughout the, territory of India in such manner as may be prescribed by or under any law made by Parliament and until provision in that behalf is so made, in such manner as the President may by order prescribe.
Article 144 provides that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
Mr. Sharma 's argument as far as we could 236 understand it is that under these provisions of articles 142 and 144 a duty lay on the President to do all that was necessary to give effect to the decree made by this Court in the earlier appeal and that by framing r. 12(4) the President has, in effect, gone against the directions of this Court as contained in that decree.
In our judgment, there is no substance in this contention.
If the decree of this Court had directed payment of arrears of appellant 's salary and allowances and the effect of the rule made by the President was to deprive him of that right there might perhaps have been scope for an argument that the rule contravened the provisions of article 144.
The decree made by this Court did not however contain any direction as regards payment of salary and allowances.
It did contain a direction that the appellant will get his costs throughout in all courts.
Quite clearly, however, the impugned rule does not in any way affect that right of the appellant.
The only other relief granted by the decree was the making of a declaration that the order of dismissal passed by the Deputy Commissioner, Delhi, on December 17, 1951, purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which the appeal had arisen.
Does the impugned rule go against this declaration? The answer, in our opinion, must be in the negative.
The provision in the rule that the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal does not seek to affect the position that the order of dismissal previously passed was inoperative and that the appellant was a member of the service on May 25, 1953, when the first, suit was instituted by the appellant.
An order of suspension of a government servant does not put an end to his service under the Government.
He continues to be a member of the service inspite of the order of suspension.
There was a termination of the appellant '$ service when the order of dismissal was I 'made on 237 December 17, 1951.
When that order of dismissal was act aside: the appellant 's service revived; and so long as another order of dismissal is not made or the service of the appellant is not terminated by some other means, the appellant continues to be a member of the service and the order of suspension in no way affects this position.
The real effect of the order of suspension is that though he continued to be a member of the Government service he was not permitted to work, and further, during the period of his suspension he was paid only some allowance generally called, ""subsistence allowance" which is normally less than his salary instead of the pay and allowances he would have been entitled to if he had not been suspended.
There is no doubt that the order of suspension affects a government servant injuriously.
There is no basis for thinking however that because of the order of suspension he ceases to be a member of the service.
The provision in r. 12(4) that in certain circumstances the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal and shall continue to remain under suspension until further orders, does not in any way go against the declaration made by this Court.
The contention that the impugned Rule contravenes articles 142 or 144 is therefore untenable.
Equally untenable is the appellant 's next contention that the impugned rule contravenes the provisions of article 19(1)(f) of the Constitution.
The argument is that as a result of this Court 's decree the appellant had a right to his arrears of pay and allowances.
This right constituted his property; and as the effect of the impugned Rule is that he would not, for some time at least, get those arrears it restricts his right.
It may be conceded that the right to arrears of pay and allowances constituted property within the meaning of article 19(1)(f) of the Constitution and further, that the effect of r. 12(4) is a 238 substantial restriction of his right in respect of that property under article 19(1)(f).
The question remains whether this restriction is a reasonable restriction in the interests of the general public.
No body can seriously doubt the importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons.
Such action is certainly against the immediate interests of the Government servant concerned; but is absolutely necessary in the interests.
of the general public for serving whose interests the government machinery exists and functions.
Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him.
It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the, procedure.
We have no hesitation in holding, therefore, that in so far as r.12(4) restricts the appellant 's right under article 19(1)(f) of the Constitution, it is a reasonable restriction in the interests of the general public.
Rule 12(4) is therefore within the saving provisions of article 19(6), so that there is no contravention of the constitutional provisions.
Mr. Sharma drew our attention to the decision of this Court in Devendra Pratap vs State of Uttar Pradesh(1) where the effect of r. 54 of the Fundamental Rules framed by the State of U. P. under article 309 was considered.
It was held that while r. 54 undoubtedly enabled the State Government to fix the pay of a public servant where dismissal is set aside in a departmental appeal, the rule has no application to cases in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated and that it would not in such a contingency be open to the authority to deprive the (1) [1962] Supp. 1 section C. R. 315.
239 public servant of the remuneration which he would have earned had he been permitted to work.
This decision has however no application to a case like the present, where because of the operation of r. 12 (4) of ,the Central Civil Service (Classification, Control & Appeal) Rules, 1957, the public servant is deemed to be placed under suspension from the date of the original order of dismissal.
This brings us to the attack on the rule on the basis of article 14.
According to Mr. Sharma the result of the impugned rule is that where a penalty of dismissal, removal or compulsory retirement from service imposed on a government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority decides to hold a further enquiry against 'him on the allegations on which the penalty was originally imposed, the consequence will follow that the government servant shall be deemed to have been placed under suspension from the date of the original imposition of penalty, whereas no such consequence will follow where a similar penalty is set aside not by a court of law but by the departmental disciplinary authority.
According to Mr. Sharma, therefore, there is a discrimination between a government servant the penalty of dismissal, removal or com pulsory retirement on whom is set aside by a decision of a court of law and another government servant a similar,penalty on whom is set aside on appeal by the departmental disciplinary authority.
The argument however ignores the result of rule 30 (2) and rule 12 (3) of these rules.
Rule 30 (2) provides inter alia that in the case of an appeal against an order imposing any of the penalties specified in rule 13, i.e., the penalty of dismissal, removal or compulsory retirement and certain other penalties, the appellate authority shall pass orders: "(1)setting aside, reducing, confirming or enhancing the penalty; or (ii) remitting the case to.
the authority which imposed the penalty 240 or to any other authority with such direction as it may deem fit in the circumstances of the case.
" Rule 12 (3) provides that "where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under 'these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
" Where a penalty of dismissal, removal or compulsory retirement imposed upon a government servant is set aside by the departmental authority on appeal, it may or may not order further enquiry; just as where a similar penalty is set aside by a decision of a court of law the disciplinary authority may or may not direct a further enquiry.
Where the appellate authority after setting aside a penalty of dismissal, removal or compulsory retirement makes an order under r. 30 (2) (ii) remitting the case to the authority which imposed the penalty, for further enquiry, rule 12 (3) will come into operation and so the order of suspension which in almost all cases is likely to be made where a disciplinary proceeding is contemplated or is pending r. 12 (3) shall be deemed to have continued in force on and from the date of the original order of dismissal and shall remain in force until further orders.
There is therefore no difference worth the name between the effect of rule 12 (4) on a government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside by a decision of a court of law and a further enquiry is decided upon and the effect of r. 12 (4) on an other government servant a similar penalty on whom is set aside in appeal or on review by the departmental authority and a further enquiry is decided upon.
In both cases the government servant will be deemed to be under suspension from the date of the.
original order of dismissal, except 241 that where in a departmental enquiry a government servant was not placed under suspension prior to the date when the penalty was imposed, this result will not follow, as r. 12 (3) would not then have any operation.
It is entirely unlikely however that ordinarily a government servant will not be placed under suspension prior to the date of his dismissal.
Rule 12 (1) provides that the appointing authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf may place a government servant under suspension : (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial.
Mr. Sharma does not say that ordinarily any cases occur where a government servant is visited with a penalty of dismissal, removal or compulsory retirement, in a departmental proceeding, without there being a previous order of suspension under the provisions of r. 12(1) and we do not think any such case ordinarily occurs.
Consequently, the effect of r. 12(3) will be the same on a government servant a penalty of dismissal, removal or compulsory retirement on whom is set aside in appeal by the departmental authority as the effect of r. 12(4) on a government servant a similar penalty on whom is set aside by a decision of a court of law.
The contention that r. 12(4) contravenes article 14 of the Constitution must therefore be rejected.
As we find that all the above attacks on the validity of r. 12(4) fail, the further attack on the Rule on the basis of article 31(1) of the Constitution also necessarily fails.
For, whatever deprivation of property may result from r. 12(4) would be by authority of law the law being r. 12(4).
We have therefore come to the conclusion that the High Court.
is right in holding that r. 12(4) is 242 valid and consequently, in rejecting the appellant 's revisional application.
The appeal is dismissed.
But, in view of the circumstances of the case we make no order as to costs.
Though the appellant has failed in this appeal which was brought by him as a pauper, we make no order against him to pay the court fee which would have been paid by him if he had not been permitted to appeal as a pauper.
Appeal dismissed.
[/INST]Although section 135 of the Indian Contract Act does not in terms apply to a surety bond executed in favour of the court, there can be no doubt that the equitable rule underlying that section must apply to it.
The reason for the said rule which entitles the surety to a discharge is that he must be able at any time either to require the creditor to call upon the principal debtor to pay off his debt, or himself to pay the debt and seek his remedy against the principal debtor.
The question as to whether the liability of the surety is discharged by a compromise in the judicial proceeding in which the surety bond is executed must depend on the terms of the bond itself.
If the terms indicate that the surety undertook the liability on the basis that the dispute should be 922 decided on the merits by the court and not amicably settled, the compromise will effect a discharge of the surety.
The Official Liquidators, The Travancore National & Quilon Bank Ltd. vs The Official Assignee of Madras 1.
L. R , Parvatibai vs Vinayak Balvant, 1.
L. R. 1938 Bom.
Mahomedalli Ibrahimji vs Laxmibai, (1929) I. L. R. LIV Bom.
II 8, Narsingh on vs Nirpat Singh, (1932) I. L. R. XI Patna 590 and Muhammad Yusaf vs Ram GobindaOjha, (1927) 1.
L. R. LV Cal. 91, referred to.
But if the terms show that the parties and the surety contemplated that there might be an amicable settlement as well, anti the surety executed the bond knowing that he might be liable under the compromise decree, there can be no discharge and the surety will be liable under the compromise decree.
Haji Ahmed vs Maruti Ramji, (1930) 1.
L. R. LV Bom.
Appunni Nair vs Isack Mackadan,(1919) 1.
L. R. 43 Mad.
272 and Kanailal Mookerjee vs Kali Mohan Chatterjee, A. 1.
R. , referred to.
Consequently, in the present case where the surety bond was executed in favour of court and by it the sureties undertook to pay certain amount of money on behalf of the respondent if decreed by the court and the compromise decree between the parties introduced complicated provisions enabling the e appellant to take possession of the properties in adjustment of rival claims, granted time, albeit to both the parties, to discharge their obligations thereunder and included matters extraneous to the judicial proceedings in which the surety bond was executed.
Held, that the sureties stood discharged by the compromise decree.
</s>
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<s>[INST] Summarize the judgementivil Appeal Nos.
14 32, 902, 879, 1130 32, 1121, 1172, 1215, 1201, 1127, 1128, 1222, 1224, 1223, 1275, 1129, 1523, 1539, 1280, 863, 1361, 1323, 1375, 1621, 1374, 1410, 1628, 2117, 1961, 1917, 1918, 1919, 1920 & 2290 of 1978 3447 3450/79.
Appeals by Special Leave from the Judgments and order dated 13.10.1977 etc.
Of the Andhra Pradesh High Court in Writ Petition No. 1872/77 etc.
AND WRIT PETITION Nos: 3973, 3998, 3836, 4198, 4199, 4200, 4210, 4263, 4317, 4318, 4414, 4256, 4537 and 4500 of 1978.
F. section Nariman, K. Krishna Rao and K. Rajendra Choudhary far the Appellants in CA Nos.
14 to 23, 25 29, 1223 1224 1628/78, 3447 and 3449/79.
A. Subba Rao for the Appellants in CA No. 1126 & WP Nos.
3973, 4198, 4199, 4200, 4317, 4318 4210/78.
A. V. V. Nair for the Appellants in CA Nos.
1215, 1361, 2117, 1286 and W.P. No. 1374/78.
G. section Rama Rao for the Appellants in CA No. 1121 & Petitioners in WP Nos. 4256 and 3836/78.
Vepa Sarathi and B. Ranta Rao for the Appellants/Petitioners in CA Nos. 24, 30, 32, 1172, 1127, 1128, 1129, 1261, 1323 1275/ 78 and WP Nos.
4263, 4500 4537/78.
section Venkata Reddy and G. Narsimulu for the Appellants in CA Nos. 31, 902, 879, 1130 32, 1410, 1621, 1917 20, 1961/78 & 1373/78.
A. K. Ganguli for the Appellants in CAs 1222 and 863/78.
R A. V. Rangam for the Petitioners in WP No. 3998/78.
section Balakrishan for the Petitioners in WP 4414/78.
V.S. Desai and A. Subba Rao for the Applicant/Intervener.
1147 K. K. Venugopal Addl.
, Ram Chandra Reddy Adv.
A Genl.
A. P. and B. Parthasarthy for the appearing respondents.
BHAGWATI, J.
These appeals by special leave and the writ petitions represent a last but desperate attempt by the; class of land holders in Andhra Pradesh to defeat an agrarian reform legislation enacted by the State or the benefit of the weaker sections of community.
It is indeed a matter of regret that a statute intended to strike at concentration of land in the hands of a few and to act as a great equaliser by reducing inequality in holding of land between the haves and the have nots should have practically remained unimplemented for a period of over seven years.
Unfortunately, this is the common fate of much of our social welfare legislation.
We can boast of some of the finest legislative measures calculated to ameliorate the socio economic conditions of the poor and the deprived and to reach social and economic justice to them, but regret ably, a large part of such legislation has remained merely on paper, and the benefits of such legislation have not reached the common man to any appreciable extent.
The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1 of 1973 (hereinafter referred to as the Andhra Pradesh Act) which is challenged in the present appeals was enacted by the Andhra Pradesh Legislature on 1st January 1973.
Soon after its enactment, the constitutional validity of the Andhra Pradesh Act was challenged before the Andhra Pradesh High Court on various grounds, but a full Bench of the High Court negatived the challenge and held the Andhra Pradesh Act to be constitutionally valid.
Though this judgment was delivered by the High Court as early as 11th April, 1973, no effective steps for implementation of the Andhra Pradesh Act could be taken, since the Andhra Pradesh Act merely remained on the statute book and for some inexplicable reason, it was.
not brought into force until 1st January 1975.
Even after the Andhra Pradesh Act was brought into force, not much enthusiasm was shown be the Government in implementing its provisions and in the mean while, it was found necessary to amend the legislation and hence the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Amendment Act 1977 was enacted with retrospective effect from 1st January 1975 and by this amending Act certain amendments were made which included inter alia the introduction of section 41A.
We shall presently refer to the relevant provisions of the amended Andhra Pradesh Act, but before we do so, it is necessary to point out that as soon as the amending Act was passed, another round 1148 of litigation was started by the landholders by filing writ petitions in the High Court challenging once again the constitutional validity of the Andhra Pradesh Act.
There were several grounds on which the constitutional validity was challenged but the main ground was that by reason of the enactment of the Urban Land (Ceiling Regulation) Act 1976 (hereinafter referred to as the Central Act), the Andhra Pradesh Act had become void and inoperative.
Certain other questions involving the interpretation of the provisions of the Andhra Pradesh Act were also raised in some of the writ petitions, but they too need not be mentioned here, because in the course of the hearing we made it clear to the parties that we would examine only the constitutional validity of the Andhra Pradesh Act and other questions could be agitated by the landholders in the appeals filed by them against the orders determining surplus land.
It was pointed out to us that some of the landholders had not filed appeals within the prescribed time and grave injustice would therefore result to them if these question, were not decided by us.
But the learned Additional Solicitor General appearing on behalf of the State family stated before us that if appeals have been filed beyond time or are filed within a month of disposal of these appeals, the delay in filing the appeals would be condoned.
Turning to the constitutional challenge which in those days was required to be decided by a full Bench of 5 Judges of the High Court, it was held that the enactment of the Central Act did not have the effect of invalidating the whole of the Andhra Pradesh Act, but since the provisions of the Andhra Pradesh Act were repugnant to the provisions of the Central Act so far as concerned land satisfying both the definition of "land" in the Andhra Pradesh Act and the definition of "vacant land" in the Central Act, the Andhra Pradesh Act was held not applicable to "vacant land" falling within the ambit of the Central Act.
The High Court accordingly granted a declaration to this effect to the landholders, but save for this limited relief, dismissed the writ petitions in all other respects, since in the opinion of the High Court there was no substance in any of the other contentions raised on behalf of the landholders.
The landholders thereupon preferred the present appeals after obtaining special leave from this Court.
The principal contention urged on behalf of the landholders in support of the appeals was that the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.
This contention was based on two resolutions, one dated 7th April 1972 passed by the Andhra Pradesh Legislative Council and the other dated 8th April 1972 passed by the Andhra Pradesh Legislative Assembly under clause (1) of Article 1149 252 of the Constitution.
This Article carves out an exception derogating from the normal distribution of legislative powers between the Union and the States under Article 246 and is in the following terms: article 252(1) : If it appears to the legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State be which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.
(2) An Act so passed by Parliament may be amend ed or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.
" The effect of passing of resolutions be the Houses of Legislature of two or more States under this constitutional provision is that Parliament which has otherwise power to legislate with respect to a matter, except as provided in Articles 249 and 250, becomes entitled to legislate with respect to such matter and the State Legislatures passing the resolutions cease to have power to make law relating to.
that matter.
The resolutions operate as abdication or surrender of the powers of the State Legislatures with respect to the matter which is the subject of the resolutions and such matter is placed entirely in the hands of Parliament and Parliament alone can then legislate with respect to it.
It is as if such matter is lifted out of List II and placed in List I of the Seventh Schedule to the Constitution.
This would seem to be quite clear on a plain natural construction of the language of clauses (1) and (2) of Article 252 and no authority.
is necessary in support of it, but if any was wanted, it may be found in the decision of a Full Bench of five Judges of this Court in Union of India vs V. V. Chaudhary in fact the same Bench as the present one where an identical view has been taken.
It was in pursuance of clause (l) of this Article that a Resolution 1150 was passed by the Andhra Pradesh Legislative Council on 7th April 1972 to the effect that "the imposition of a ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto should be regulated in the State of Madhya Pradesh by Parliament by law and an identical resolution in the same terms was passed on the next day by the Andhra Pradesh Legislature Assembly.
Similar resolutions were also passed by the Houses of Legislature of some other States, though there is no material to show as to when they were passed.
It was however common ground that at best some of these resolutions were passed prior to the enactment of the Andhra Pradesh Act.
The result was that at the date when the Andhra Pradesh Act was enacted, Parliament alone was competent to legislate with respect to ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all connected, ancillary or incidental matters, and the Andhra Pradesh Legislature stood denuded of its power to legislate on that subject.
Now the Andhra Pradesh Act, as its long title shows, was enacted to consolidate and damned the law relating to the fixation of ceiling on agricultural holdings and taking over of surplus land and matter connected therewith.
On its plain terms, it applies to land situate in any part of Andhra Pradesh.
Section 3(f) creates an artificial unit called 'family unit ' by defining it as follows: "Sec. 3(f) "family unit" means (i) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and their unmarried minor daughters; if any; (ii) in the case of an individual who has no spouse such individual and his or her minor sons and unmarried minor daughters; (iii) in the case of an individual who is a divorced husband and who has not remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody or not; and (iv) where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters.
Explanation Where a minor son is married, his wife and their offspring, if any, shall also be deemed to be members of the family unit of which the minor son is a member: 1151 The term "land" is defined in section 3(j) to mean "land which A is used or is capable of being used for purposes of agriculture, or for purposes ancillary thereto, including horticulture, forest land, pasture land, waste land, plantation and tope; and includes land deemed to be agricultural land under this Act".
Explanation I to this definition enacts a rebuttable presumption that land held under Ryotwari settlement shall, unless the contrary is proved, be deemed to be 'land ' under the Andhra Pradesh Act.
Section 3(o) defines 'person ' as including inter alia an individual and a family unit.
Section 10 is the key section which imposes ceiling on the holding of land by providing that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.
If therefore an individual or a family unit holds land in excess of the ceiling area, the excess would have to be surrendered to the State Government.
But the question then arises, what is the ceiling area above which a person cannot hold land.
The answer is provided by section 4 which reads as follows: "Sec.
4(1) The ceiling area in the case of a family unit consisting of not more than five members shall be an & extent of land equal to one standard holding.
(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one fifth of one standard holding for every such member in excess of five, so however that the ceiling area shall not exceed two standard holdings.
(3) The ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding.
Explanation: In the case of a family unit, the ceiling area shall be applied to the aggregate of the lands held by all the members of the family unit".
It will thus be seen that the ceiling area in the case of an individual who is not a member of a family unit is equivalent to one standard holding and so also in the case of a family unit with not more than five members, the ceiling area is the same, but if the family unit consists of more than five members, the ceiling area would stand increased by one fifth of one standard holding for every additional member of the family unit, subject however to the maximum limit of 2 standard holdings.
When the ceiling area is applied to the holding of a 1152 family unit, the Explanation requires that the lands held by all the members of the family unit shall be aggregated for the purpose of computing, the holding of the family unit.
Where, therefore, there in a family unit consisting of father, mother and three minor sons or daughters, the lands held by all these persons would have to be clubbed together and then the ceiling area applied to the aggregate holding.
There is no distinction made in the definition of 'family unit ' between a divided minor son and an undivided minor son.
Both stand on the same footing and a divided minor son is as much a member of the family unit as an undivided minor son, and consequently the lands held by a divided minor son would have to be included in the holding of the family unit for the purpose of application of the ceiling area.
Section 7 invalidates certain transfers of land and provides for inclusion of such lands in the holding of an individual or a family unit.
Then there is a provision in section 8 for furnishing a declaration in respect of his holding by every person whose land exceeds the ceiling area and the Tribunal is required by section 9 to hold an enquiry.
and pass an order determining the land held in excess of the ceiling area.
Such land has to be surrendered by the person holding the land and on such surrender, the Revenue Divisional officer is empowered under section 11 to take possession of the land which thereupon vests in the State Government free from all encumbrances.
Section 14 provides inter alia that the land vested in the State Government shall be allotted for use as house sites for agricultural labourers.
village artisans or other poor persons owning no houses or house sites or transferred to the weaker sections of the people dependent on agriculture for purposes of agriculture/or for purposes ancillary thereto in such manner as may be prescribed by the Rules, subject to a proviso that as far as practicable not less than one half of the total extent of land so allotted or transferred shall be allotted or transferred to the members of the Scheduled Castes and the Scheduled Tribes.
Section 15 enacts a provision for payment of compensation for land vested in the State Government at the rates specified in the Second Schedule.
These are the only relevant provisions of the Andhra Pradesh Act which need to be referred to for the purpose of the present appeals.
We may now turn to examine the relevant provisions of the Central Act.
This Act was enacted by Parliament pursuant to the authority conferred upon it by the resolutions passed by the Houses of legislature of several States including the State of Andhra Pradesh under clause (1) of Article 252.
It received the assent of the President on 17th February 1 976 and as its long title and recital shows it was enacted to provide for the imposition of a ceiling on vacant 1153 land is urban agglomerations for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to sub serve the common good.
We shall refer to a few material provisions of this Act.
Section 2(a) (i) defines "appointed day" to mean in relation to any State to which this Act applies in the first instance which includes the State of Andhra Pradesh the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976 in Parliament.
This was the Bill which culminated in the Act and it was introduced in Parliament on 28th January 1976.
Consequently, this date would be the 'appointed day ' for the purpose of applicability of the Act to the State of Andhra Pradesh.
The definition of "family" in section 2 (f) is materially in the same terms as the definition of "family unit" in the Andhra Pradesh Act.
Then follow two important definitions which needed to be set out in extenso.
The word "person" is defined in section 2(i) as including inter alia an 'individual ' and the 'family '.
Section 2(n) defines "urban agglomeration" in the following terms: "Sec.2(n) (A) in relation to any State of Union territory specified in column (1) of Schedule 1, means (i) the urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral area specified in the corresponding entry in column (3) thereof; and (ii) any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstance of the case may require, by notification in the official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area there for shall be one kilometre; (B) xx xx xx xx xx" The term 'urban land ' is defined in section 2(o) to mean: Sec.
2(o)(i): any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or 1154 (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town Committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
Explanation: For the purpose of this clause and clause (q), (A) "agriculture" includes horticulture, but does not include (i) raising of grass, (ii) dairy farming, (iii) poultry farming, (iv) breeding of live stock, and (v) such cultivation, or the growing of such plant, as may be prescribed.
(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture; (C) notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture; " Section 2(q) gives a definition of "vacant land" by providing that "vacant land" means, subject to certain exceptions which are not material, land not being land mainly used for the purpose of agriculture, in an urban agglomeration.
Section 3 is the rebuttal section which imposes ceiling on holding of 'vacant land ' by providing that: "Sec. 3.
Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be n entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub section (2) of section 1." 1155 Section 4 divides urban agglomeration into categories A, B, C and D lays down different ceiling limits for these different categories.
Then there is a provision in section 5 invalidating in certain circumstances the transfer of vacant land made at any time during the period commencing on the appointed day and ending with the commencement of the Act.
The procedure for determining "vacant land" held in excess of the ceiling limit is laid down in sections 6 to 9 and section 10 enacts a provision for acquisition of such land held in excess of such limit.
Section 23 provides for disposal of vacant land acquired under the Act and it empowers the State Government to allot such vacant land to "any person for any purpose relating to or in connection with any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry.
It will thus be seen that the Central Act imposes a ceiling on holding of land in urban agglomeration other than land which is mainly used for the purpose of agriculture and agriculture in this connection includes horticulture, but does not include raising of grass, dairy farming, poultry farming, breeding live stock and cultivation or the growing of such plants as may be prescribed by the Rules, and, moreover, in order to fall within the exclusion, the land must be entered in the revenue or land record before the appointed day as for the purpose of agriculture and must also not have been specified in the master plan for a purpose other than agriculture.
Now, as we have already pointed out above, the Andhra Pradesh Legislature had, at the time when the Andhra Pradesh Act was enacted, no power to legislate with respect to ceiling on urban immovable property.
That power stood transferred to parliament and as a first step towards the eventual imposition of ceiling on immovable property of every other description, the Parliament enacted the Central Act with a view to imposing ceiling on vacant land, other than land mainly used for the purpose of agriculture, in an urban agglomeration.
The argument of the landholders was that the Andhra Pradesh Act sought to impose ceiling on land in the whole of Andhra Pradesh including land situate in urban agglomeration and since the concept of agglomeration defined in section ' 2(n) of the Central Act was an expensive concept and any area with an existing or future population of more than one lakh could be notified to be an urban agglomeration, the whole of the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.
This argument plausible though it may seem, in our opinion, is unsustainable.
It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside the area of its legislative competence, because it 1156 cannot provide for imposition of ceiling on urban immovable property.
But the only urban agglomerations in the State of Andhra Pradesh recognised in the Central Act were those referred to in section 2(n) (A) (ii) and there can be no doubt that so far as these urban agglomerations are concerned, it was not within the legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations.
It is, however, difficult to see how the Andhra Pradesh Act could be said to be outside the legislative competence of the Andhra Pradesh Legislature in so far as land situate in the other areas of the State of Andhra Pradesh is concerned.
We accept that any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under section 2(n)(A)(ii) of the Central Act but until it is so notified it would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on land situate within such area.
No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land.
It may be noticed that the Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government It must therefore follow that in an area other than that comprised in the urban agglomerations referred to in section 2(n) (A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him.
It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act.
We fail to see how it can at all be contended that merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n)(A)(ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act.
Undoubtedly, when an area is notified as an urban agglomeration under section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh 1157 Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area.
It is therefore not possible to uphold the contention of the landholders that the whole of the Andhra Pradesh Act is ultra vires and void as being outside the area of legislative competence of the Andhra Pradesh Legislature.
It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A) (i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradesh.
The next contention urged on behalf of the landholders was that on a proper construction of the relevant provisions of the Andhra Pradesh Act, a divided minor son was not liable to be included in "family unit" as defined in section 3(f) of that Act.
The argument was that sub section (2) of section 7 did not invalidate all partitions of joint family property but struck only against partitions effected on or before 2nd May 1972 and thus by necessary implication recognised the validity of partitions affected prior to that date.
If therefore a partition was effected prior to 2nd May 1972 and under that partition a minor son become divided from his father and mother, the divided minor son could not be included in the family unit and his property could not be clubbed with that of his father and mother, because otherwise it would amount to invalidation of the partition though section 7, sub section (2) clearly recognised such partition as valid.
This argument is clearly fallacious in that it fails to give due effect to the definition of family unit in section 3(f) and the provisions of section 4.
It is undoubtedly true that a partition effected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property which comes to the share of a divided minor son would in law belong to him and would not be liable to be required as part of joint family property.
But under the definition of family unit in section 3(f) the divided minor son would clearly be included in the family unit and by reason of section 4 his land whether self acquired or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit.
The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit.
We do not therefore see how a divided minor son can be excluded from the family unit.
That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh Act.
1158 Then a contention was advanced on behalf of the landholders that the definition of "family unit" was violative of Article 14, of the Constitution in that it made unjust discrimination between a minor son and the major son by including minor son in the "family unit" while excluding a major son from it.
This contention has already been dealt with by learned brother Tulzapurkar, J. in the judgment delivered by him today in the Haryana Land Ceiling matters and we need not repeat what he had already stated there while repelling this contention.
Moreover, this contention isl no longer open to the landholders since the Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Articles 14, 19 and 31 by the protective umbrella of Article 31A.
We do not therefore see any substance in the contentions urged on behalf of the landholders and we accordingly dismiss the appeals and the writ petitions with costs.
S.R. Appeals & Petitions dismissed.
[/INST]Dismissing the appeals and the Writ Petitions, the Court ^ HELD: (1).
It is fundamental that the nation 's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding interest of forensic blow up.
This, if permitted, may well be a kind of judicial destabilisation of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shake up.
The decision in Kesavananda Bharati 's case, therefore, upholding the vires of Article 31A in unequivocal terms binds the court on the simple score of stare decisis and the constitutional ground of Article 141.
Further, fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority "merely because it was badly argued, inadequately considered and fallaciously reasoned".
And none of these misfortunes can be imputed to Bharati 's case.
[1164 C G, 1165 C D] (2).
The sweep of Article 31A is wide and indubitably embraces legislation on land ceilings.
Equitable distribution of lands, annihilation of monopoly of ownership by imposition of ceiling and regeneration of the rural economy by diverse planning and strategies are covered by the armour of Article 31A. Article 31A repulses, therefore, all invasions on ceiling legislation armed with Articles 14, 19 and 31.
[1165 D E, 1166 D E] Ranjit Singh and ors.
vs State of Punjab and Ors.
; , State of Kerala and Anr.
vs The Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. etc. ; , reiterated.
The decision in Maneka Gandhi 's case is no universal nostrum or cure all.
Nor can it be applicable to the land reform law which is in another domain of constitutional jurisprudence and quite apart from personal liberty in Article 21.
To contend that land reform law, if unreasonable violates Article 21 as expansively construed in Maneka Gandhi case is incorrect.
[1168 E G] (4).
Section 5(6) d the U.P. Imposition of Ceiling on Land Holdings Act, 1960 is fair, valid and not violative of Article 19(1)(f) of the Constitution.
There is no blanket ban by it but only qualified invalidation of certain sinister assignments etc.
There is nothing in this section which is morally wrong nor is such an embargo which comes into force only on a well recognised date not from an arbitrarily retrospective past constitutionally anathematic.
Article 19(1)(f) is not absolute in operation and is subject, under Article 19(6), to 1160 reasonable restrictions such as the one contained in Section 5(6).
Further it is perfectly open to the legislature as ancillary to its main policy to prevent activities which defeat the statutory purpose, to provide for invalidation of such action.
When the alienations are invalidated because they are made after a statutory date fixed with a purpose, there is sense in this prohibition.
Otherwise, all the lands would have been transferred and little would have been left by way of surplus.
[1169 A B, D, F G, 1170 C, E F] (5).
Articles 14 and 15 and the humane spirit of the Preamble rebel against the defacto denial of proprietory personhood or womanhood.
But this legal sentiment and jural value must not run riot and destroy the provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life realism is legislatively pragmatised.
Such a scheme may marginally affect gender justice but does not abridge, wee bit, the rights of women.
If land holding and ceiling thereon are organised with the paramount purpose of maximizing surpluses without maiming women 's ownership, any plea of sex discrimination as a means to sabotage what is socially desirable measure cannot be permitted. [1173 D F] From a reading of Section 3(7) read with Section S(3) it is clear that no woman 's property is taken away any more than a man 's property.
Section 5(3) does not confer any property on an adult son nor withdraw any property from adult daughter.
Legal injury can arise only if the daughter 's property is taken away while the son 's is retained or the daughter gets no share while the son gets one.
The legislation has not done either.
[1171 G, 1173 F, H, 1174 C D] (6).
Section 3(17) of the Act is not discriminatory Land does not offend Articles 14 & 15 of the Constitution.
True, Section 3(17) makes the husband a tenure holder even when the wife is the owner.
This is a legislative device for simplifying dealings and cannot therefore be faulted.
[1174 E, F G] (7).
Neither ceiling proceedings abate nor taking surplus land from the tenure holder is barred under the provisions of Section 4 of the U.P. Consolidation of Holdings Act, 1953 read with Section 5(2) of the Ceiling Act.
[1177 C] The whole scheme of consolidation of holdings is to restructure agrarian landscape of U.P. so as to promote better farming and economic holdings by 'eliminating fragmentation and organising consolidating.
No one is deprived of his land.
What happens is, his scattered bits are taken away and in lieu thereof a continuous conglomeration equal in value is allotted subject to minimal deduction for community use and better enjoyment.
Whatever land belongs to the tenure holder at the time when consolidation proceedings are in an on going stage, may or may not belong to him after the consolidation proceedings are completed.
Alternative allotments may be made and so the choice that he may make before the prescribed authority for the purpose of surrendering surplus lands and preserving 'permissible holding ' may have only tentative value.
But this factor does not seriously prejudice the holder.
While he chooses the best at the given time the Consolidation Officer will give him its equivalent when a new plot is given to him in tho place of the old.
There is no diminution in the quantum of land and quality of land since the object of consolidation is not deprivation but mere substituting of scattered pieces with a consolidated plot.
The tenure holder may well exercise his option before the prescribed officer and if, later, the Consolidation Officer takes away there lands, he will allot a real equivalent thereof to the tenure holder elsewhere.
There is no reduction or damage or other prejudice by this process of statutory exchange.
[1177 C G] 1161 When land is contributed for public purposes compensation is paid in that behalf, and in the event of illegal or unjust orders passed, appellate and revisory remedies are also provided.
On such exchange or transfer taking place, pursuant to the finalisation of the consolidation scheme, the holding, upto the ceiling available to the tenure holder, will be converted into the new allotment under the consolidation scheme.
Thus there is no basic injustice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way.
[1178 B D] Agricultural & Industrial Syndicate Ltd. vs State of U.P. and Ors., [1974] 1 S.C.R. 253, distinguished.
Khetarpal Singh vs State of U.P. (High Court) [1975] Recent Decisions p. 366, approved.
There is no time wise arbitrariness vitiating the statute in that various provisions in the Act were brought into force on random dates without any rhyme or reason, thus violating, from the temporally angle, Article 14.
It is true that neither the legislature nor the Government as its delegate can fix fanciful dates for effectuation of provisions affecting the rights of citizens.
Even so, a larger latitude is allowed to the State to notify the date on which a particular provision may come into effect.
Many imponderables may weigh with the State in choosing the date and when challenge is made years later, the factors which induced the choice of such dates may be buried under the debris of time.
Parties cannot take advantage of this handicap and audaciously challenge every date of coming into force of every provision as capriciously picked out.
[1179 B D]
</s>
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<s>[INST] Summarize the judgementCivil Appeal No. 1942 of 1974.
Appeal by Special Leave from the Judgment and Order dated the 20 5 1974 of the Punjab and Haryana High Court at Chandigarh in Civil Writ No. 2169 of 1972.
L. N. Sinha, Solicitor General and Naunit Lal for the Appellant.
Kapil Sibal and P. R. Ramesh for Respondent No. 1.
P. P. Rao for the Applicant Intervener.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave by the State of Haryana is directed against the judgment of Punjab and Haryana High Court whereby petition under articles 226 and 227 of the Constitution of India filed by Des Raj Sangar respondent was allowed and order dated July 13, 1972 of the Haryana Government abolishing the post of Panchayati Raj Election Officer and terminating the services of the said respondent was quashed.
Des Raj Sangar respondent (hereinafter referred to as the respondent) joined service as a clerk in the Panchayat Department of the then Punjab Government in 1942.
The respondent was in due course promoted and confirmed as Head Assistant.
In 1961 while the respondent was officiating as a Superintendent in the Panchayat Department, he was appointed Officer on Special Duty (Elections).
The post of Officer on Special Duty (Elections) was an ex cadre post, while that of Superintendent was included in the cadre.
With effect from November 1, 1961 the post of Officer on Special Duty was re designated as Panchayati Raj Election Officer.
The respondent held the post of Panchayati Raj Election Officer temporarily till 1964 when that post was made permanent.
The respondent was confirmed as Panchayati Raj Election Officer with effect from September 19, 1964.
The decision to confirm the respondent was taken with a view to ensure the lien of the respondent on that post as the respondent had been selected by the Government of India as Gram Panchayat Officer in the Indian Aid Mission, Nepal.
An undertaking was also obtained from the respondent at the time he was confirmed that this would not affect the seniority of B. N. Sharma, who was senior to the respondent and who was then holding the temporary post of Planning Officer.
On the reorganization of the erstwhile State of Punjab with effect from 1036 November 1, 1966 the post of Planning Officer held by B. N. Sharma was allocated to the State of Punjab, while that of Panchayati Raj Election Officer held by the respondent was allocated to the State of Haryana.
From November 1, 1966 till April 16, 1971 the respondent worked as Planning cum Panchayati Raj Election Officer in the Panchayat Department of Haryana Government.
On April 16, 1971 the Haryana Government created eight temporary posts of Deputy Directors in the Panchayat Department in the pay scale of Rs. 400 1100.
The post of the respondent was also re designated as Deputy Director Panchayat with effect from April 16, 1971.
A notification was subsequently issued on May 13, 1971 superseding the earlier notification and the respondent 's post was again designated as that of planning cum Panchayati Raj Election Officer.
On the same day instead of the eight temporary posts of Deputy Directors, nine posts of Deputy Directors were created.
Two of those Deputy Directors were to be posted at the headquarters, one to deal with land development work and the other to deal with legal work, while seven of the Deputy Directors were to work in the field.
These seven posts of Deputy Directors meant for the field work were subsequently abolished.
Another post of Officer on Special Duty (Planning) in the grade of Rs. 400 800 was created in October 1971.
A. N. Kapur, who was junior to the respondent but who had been confirmed as Superintendent, was appointed Officer on Special Duty (Planning).
On April 13, 1972 the impugned order was made and the same reads as under: ORDER The Governor of Haryana is pleased to order that in view of the extreme financial stringency the permanent post of the Panchayati Raj Election Officer in the Panchayat Department, Haryana, in the scale of Rs. 400 40 1000/50 1100 should be abolished with immediate effect.
Consequent upon the abolition of the post of the Panchayati Raj Election Officer the Governor of Haryana is further pleased to order that the services of Shri Des Raj Sangar who is holding the post of the Panchayati Raj Election Officer in a substantive permanent capacity should be dispensed with immediate effect.
He should relinquish the charge of his post immediately.
He is allowed three months ' emoluments i.e. pay and allowances as gratuity in lieu of three months notice in accordance with the provisions of rule 5.9 of the Civil Services Rules, Volume II.
He shall be entitled to pension/gratuity in accordance with the rules in Chapter VI of the Civil Service Rules, Volume II, as amended from time to time, but the pension shall not be payable for the period in respect of which he has been allowed gratuity in lieu of three months ' notice.
J. section Sarohia Secretary to Govt.
Haryana Chandigarh Development & Panchayat Department Dated: 13th July, 1972 1037 The respondent in his petition while assailing the impugned order levelled allegations of mala fide against Shri Shyam Chand, then Minister for Development and Panchayats, Haryana but the said allegations were not pressed at the time of arguments.
Following two contentions were advanced on behalf of the respondent: (1) The impugned order dated July 13, 1972 abolishing the post of Planning cum Panchayati Raj Election Officer held by the respondent and the consequent termination of his services was arbitrary and had no reasonable nexus with the object sought to be achieved, namely, meeting the financial stringency.
The impugned order was stated to be violative of articles 14 and 16 of the Constitution inasmuch as the respondent who was at all times selected for higher posts and got promotions from the lower posts in the cadre was being thrown out of the job on the pretext of the abolition of the post permanently held by him, whereas persons junior to him in rank and less meritorious were retained in service.
(2) In view of the provisions of rule 3.14 and other relevant rules of Punjab Civil Services Rules, the moment the post held by the respondent was abolished his lien got revived on the post of Head Assistant which he had held substantively before his promotion to the ex cadre post and therefore his services could not be terminated, and he was in any case entitled to the admittedly existing post of Head Assistant.
As against the above, it was urged on behalf of the State of Haryana that the Government was well within its rights to decide as to which posts should be abolished to effect economy to meet the financial stringency and that the court could not go into the matter and decide whether the abolition of the post was justified or not.
It was also stated that the respondent could not be reverted to the post of Head Assistant as his lien on the post had been terminated when he was confirmed against the permanent post of Planning cum Panchayati Raj Election Officer.
The learned Judges of the High Court held that the impugned order was arbitrary, unreasonable and violative of articles 14 and 16 of the Constitution.
The order as such was quashed.
In view of the above finding, the learned Judges did not go into the second contention advanced on behalf of the respondent on the basis of rule 3.14 of the Punjab Civil Services Rules.
In appeal before us learned Solicitor General on behalf of the appellant State has urged that it is for the State Government to decide as to which post should be abolished and in case the State Government so decides for administrative reasons, its order in this respect should not have been quashed by the High Court.
As against that, Mr. Sibal on behalf of the respondent has canvassed for the correctness of the view taken by the High Court.
There is, in our opinion, considerable force in the contention advanced on behalf of the appellant in this respect.
Whether a post should be retained or abolished is essentially a matter for the Government to decide.
As long as such decision of 1038 the Government is taken in good faith, the same cannot be set aside by the court.
It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished.
The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post.
In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside.
The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract article 311.
In M. Ramanatha Pillai vs The State of Kerala & Anr.(1) Ray C.J. speaking for the Constitution Bench of this Court observed: "A post may be abolished in good faith.
The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, malafide or as a mask of some penal action within the meaning of article 311 (2).
" It was further observed: "The abolition of post may have the consequence of termination of service of a government servant.
Such termination is not dismissal or removal within the meaning of article 311 of the Constitution.
The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post.
The abolition of post is not a personal penalty against the government servant.
The abolition of post is an executive policy decision.
Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post." According to the impugned order, the post of the Panchayati Raj Election Officer was abolished in view of the extreme financial stringency.
In support of the above order, Shri G. L. Bailpur, Secretary to the Government of Haryana, filed affidavit.
According to that affidavit, the post of Panchayati Raj Election Officer was created simply for the conduct of elections of the Panchayati Raj Bodies.
The other duties which were performed by the respondent were only as a measure of temporary arrangement.
In order to streamline the Department the Government felt that the Department should be reorganised and as a result of reorganisation those duties which had nothing to do with the job of the Panchayati Raj Election Officer were with drawn and given to separate Deputy Directors of Panchayats.
The 1039 duties pertaining to legal matters and complaints against Panchas, Sarpanches and the members of the Panchayat Samitis were of such nature that the same required a legal background and field experience by the officer handling the subject.
Those duties were, therefore, given to Deputy Director of Panchayat (Legal) who was a Law graduate and had a long field experience as Block Development and Panchayat Officer.
After the reorganisation of the Department, the only work left with the Panchayati Raj Election Officer was that of conducting elections of Panchayati Raj Bodies.
As this work was of a periodical nature, the Government thought it fit to abolish it.
It was also stated in another affidavit filed on behalf of the appellant State that the post of Panchayati Raj Election Officer and the seven posts of field Deputy Directors were abolished as an economy measure to meet financial stringency.
We see no cogent ground to question the averments made in the above affidavits.
The averments show that the decision to abolish the post of Panchayati Raj Election Officer was taken because of administrative reasons.
The question as to whether greater economy could have been brought about by adopting some other course is not for the court to go into, for the court cannot sit as a court of appeal in such matters.
It may be that some of the functions which were being previously performed by the respondent are now being performed by Deputy Directors whose posts have not been abolished, this fact would not show that the decision to abolish the post held by the respondent was not taken in good faith.
After the posts of Deputy Directors had been created and had been in existence along with the post of Panchayati Raj Election Officer for a number of months, the Government, it would appear, decided to abolish some of the posts to meet the financial stringency.
In taking the decision as to which post to abolish and which not to abolish, the Government, it seems, took into account the relative usefulness of each post and decided to abolish the seven posts of field Deputy Directors and the one post of Panchayati Raj Election Officer.
This was a matter well within the administrative discretion of the Government and as the decision in this respect appears to have been taken in good faith, the same cannot be quashed by the court.
The fact that the post to be abolished is held by a person who is confirmed in that post and the post which is not abolished is held by a person who is not permanent would not affect the legality of the decision to abolish the former post as long as the decision to abolish the post is taken in good faith.
We would, therefore, hold that the High Court was in error in quashing the order of the Government whereby the post of Panchayati Raj Election Officer had been abolished.
There appears to be, however, considerable force in the second contention advanced on behalf of the respondent that on the abolition of the post of Panchayati Raj Election Officer, his services should not have been terminated.
According to clause (a) (2) of rule 3.14 of Punjab Civil Services Rules Vol.
I Part I as applicable to Haryana State, a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne.
According to clause (e) of that rule, a 1040 Government servant 's lien which has been suspended under clause (a) of that rule shall revive as soon as he ceases to hold a lien on the post of the nature specified in sub clauses (1), (2) or (3) of that clause.
The above provisions were considered by us in the case of T. R. Sharma vs Prithvi Singh & Anr.(1) and it was held that in the absence of a written request by the employee concerned, the lien on the post permanently held by him cannot be terminated.
It is nobody 's case that any written request was made by the respondent for terminating his lien on the post of Head Assistant.
As such, the lien of the respondent on the post of Head Assistant should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer was abolished.
It has been pointed out by Mr. Sibal that officials who were junior to the respondent have in the meanwhile been promoted to higher posts.
It would be for the authorities concerned to take such consequential steps as may be necessary in accordance with the rules because of the revival of the lien of the respondent on the post of Head Assistant.
Mr. Sibal has also stated that the respondent may exercise his option of taking compensation pension in accordance with rule 5.2 of the Punjab Civil Services Rules Vol.
II because of the abolition of the post of Panchayati Raj Election Officer.
In case the respondent does so, it would be for the Government to pass appropriate orders in the matter.
Submission has further been made by Mr. Sibal that the respondent should not in view of the hardship suffered by him be compelled to make refund out of the salary which he has been drawing during the pendency of the appeal.
This again is a matter which is entirely for the Government to decide and we are sure that the Government would pass appropriate order keeping in view all the circumstances of the case.
We accordingly accept the appeal and set aside the judgment of the High Court.
We hold that the order of the Government abolishing the post of Panchayati Raj Election Officer does not suffer from any infirmity and as such is not liable to be quashed.
We further hold that on the abolition of that post, the lien of the respondent on the post of Head Assistant stood revived.
The parties in the circumstances shall bear their own costs throughout.
V.P.S. Appeal allowed.
[/INST]At the time of passing of the Madras Estates (Abolition and Conversion into Ryotwari) Act (Madras Act XXVI of 1948), a 15/16th portion of village Karuppur situated within the Zamindari of Ramanathapuram was hold by the inamdars under a pre settlement grant confirmed by the British Government, the estate being permanently settled in 1802.
The remaining one sixteenth portion was held by the holders of darmila or post settlement inams made by the proprietor of the estate.
In exercise of the powers conferred by section 1(4) of the Madras Act XXVI of 1948 the State of Madras issued a notification dated 22nd August 1949 bringing the Act into force as regards the Ramanathapuram estate from 7th September 1949, the latter Zamindari including one sixteenth part of Haruppur village.
The respondent the holder of the one sixteenth inam contended that under section 1(3) of the Madras Act XXVI of 1948 the State of Madras bad power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act I of 1908 and that one sixteenth part of the village of Karuppur included in the notification was not an estate as defined in that section and the notification was therefore ultra vires.
Held (repelling the contention) that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar and when the estate is notified under section 1(4) of the Madras Act XXVI of 1948 the inam will vest in the State under section 3(b) of the Madras Act XXVI of 1948 and therefore one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the State.
Under the provisions of the Madras Act XXVI of 1948 the darmila minor inamdar is entitled to claim compensation for the transfer of his portion of the estate to the Government.
115 908 Darmila minor inam is not protected by section 20 of the Act.
Brahmayya vs Achiraju ([1922] I.L.R. and Nara yanaraju vs Suryanarayudu ([1939] 66 I.A. 278), referred to.
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<s>[INST] Summarize the judgementAppeal No. 242 of 1965.
Appeal from the judgment and order dated February 19, 1962 of the Madhya Pradesh High Court in Misc.
Petition No. 395 of 1958.
A. K. Sen, R. M. Hazarnavis, D. N. Verma, O. P. Malhotra, O. C. Mathur, J. B. Dadachanji and Ravinder Narain, for the appellant.
B. Sen and I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by certificate, from the judgment of the High Court of Madhya Pradesh dated February 19, 1962 in Miscellaneous Petition No. 395 of 1958.
The appellant is a firm carrying on the business of manufac turing and selling bidis.
During the period April 1, 1951 to September 6, 1955, the appellant was registered as a "dealer" under the Central Provinces & Berar Sales Tax Act, 1947 (C.P. & Berar Act 21 of 1947) (hereinafter called the 'Act ').
For the purposes of manufacture of bidis, the appellant imported from the State of Bombay large quantities of tobacco.
During the period from November 7, 1953 to October 26, 1954, the appellant imported from that State tobacco worth Rs. 84,29,580 15 0 and during the period from October 27, 1954 to November 14, 1955 the appellant imported tobacco worth Rs. 1,38,27,630 12 6.
In the usual course, the tobacco, after being imported into the State of Madhya Pradesh, was rolled into bidis which were largely exported to other States for sale and consumption in those States.
In respect of the imports of tobacco the Sales Tax authorities required the appellant to file returns in Part B of Form IV clause 2 of which stated as follows: M19Sup.
CI/66 7 90 "2.
Purchase price of goods other than those mentioned in Schedule 11 purchased on declaration under rule 26 as being goods specified in the registration certificate as intended for use as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose; such as one 's own consumption or for export outside the State for which deduction is claimed under section 27 A or for use in the manufacture of goods exported outside the State for which deduction is claimed under section 27 A, etc.
" The appellant filed a return for the quarter from May 3, 1954 to July 29, 1954 showing the amount of Rs. 16,47,567 3 3 as the purchase price of goods purchased on declaration as being goods specified in the registration certificate as intended for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose.
In the return which was filed for the quarter beginning from July 27, 1954 and ending with October 26, 1954, the appellant did not fill in any figure but showed the above item as blank contending that the Sales Tax authorities were not entitled to levy any purchase tax against it in respect of the same. 'Me appellant thereafter moved this Court under article 32 of the Constitution for the issue of a writ of mandamus or any other suitable writ to restrain the respondents from enforcing the provisions of the Act and for other consequential reliefs.
In Writ Peti tion No. 67 of 1955 decided on September 20, 1955 M/s Mohanlal Hargovind Das vs The State of Madhya Pradesh(1) this court observed in the course of its judgment as follows: "All the transactions entered into by a registered dealer, however, do not necessarily import a liability to pay tax under the Act because, whenever the question arises in regard to his liability to pay any tax under the Act, such liability would have to be determined in spite of his being a registered dealer with reference, inter alia, to the provisions of Section 27 A of the Act which incorporates within its terms the bans which have been imposed on the powers of the State Legislatures to tax under Article 286(1) (a) and (2) of the Constitution.
If, therefore, a dealer who has got himself registered as dealer under the provisions of Section 8(1) of the Act is sought to be made liable in respect of transactions of sale effected by him he could claim exemption from such liability if the transactions of sale or purchase took place in the course of inter State trade or commerce after the 31st March, 1951, except in so far (1) ; 91 as Parliament may by law otherwise provide.
In the case before us there was no such provision made by Parliament and the transactions in question were all after the 31st.
March, 1951, with the result that the ban imposed by Article 286(2) was in operation and if the transactions took place in the course of inter State trade or commerce not only were Shri Chhaganlal Ugarchand Nipani and Shri Maniklal Chunanlal Baroda exempt from the liability to pay the tax on these transactions but the petitioners also were similarly exempt.
No liability, therefore, could be imposed either for Sales Tax or for Purchase Tax within the terms of the Act on these transactions which as above stated took place in the course of inter State trade or commerce." This Court accordingly granted a writ to the following effect: "The respondents will be restrained from enforcing the Central Provinces and Berar Sales Tax Act, 1947, and its provisions against the petitioners and from imposing a tax in respect of the transactions in question and in particular from imposing a tax on the purchase price of goods purchased on the declarations under Rule 26 being goods specified in the registration certificate as intended for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose under the provisions of Section 4(6) of the Act.
" In view of this writ the Assistant Commissioner of Sales Tax, Jabalpur, by his two orders dated September 9, 1956 and September 10, 1956, exempted the appellant from tax on the purchases of tobacco made in the State of Bombay, which, after being imported into the State of Madhya Pradesh, was used as raw material for manufacturing bidis exported to other States.
The appellant preferred appeals to the Deputy Commissioner or Sales Tax against the two orders dated September 9, 1956 and September 10, 1956.
In the meantime, on March 21, 1956, the Sales Tax Laws Validation Act, 1956 (Act 7 of 1956), which repealed the Sales Tax Validation Ordinance 3 of 1956, had come into force.
Thereupon, on December 5, 1958, the Deputy Commissioner of Sales Tax issued two notices to the appellant proposing to levy tax on purchases of tobacco during the period from November 7, 1953 to September 5, 1955 from non resident dealers under section 4(6) of the Act.
The appellant filed in the High Court of Madhya Pradesh Miscellaneous Petition No. 395 of 1953 praying for grant of a writ of certiorari to quash the notices dated December 5, 1958 issued by the Deputy Commissioner of Sales Tax and for a writ in the nature 92 of mandamus restraining the respondents from enforcing the provisions of the Act and of the Central Act 7 of 1956 and from imposing any tax on purchases of tobacco and other raw materials from non resident dealers.
By its judgment dated February 19, 1962, the High Court of Madhya Pradesh rejected the petition of the appellant.
By the Madhya Pradesh Sales Tax (Amendment) Act, 1953 (M.P. Act 20 of 1953) certain amendments were made in the Act.
The material provisions of the latter Act, as amended by the former Act, were as follows: "2.
(c) "dealer" means any person who whether as principal or agent, carries on in Madhya Pradesh the business of selling or supplying goods, whether for commission, remuneration or otherwise and includes a firm, a partnership. . . "2. (g) "sale" with all its grammatical variations and cognate expressions mean any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract. . and the word 'purchase ' shall be construed accordingly; Explanation (II). (Notwithstanding anything to the contrary in the Indian , but subject to the provision contained in the Explanation to clause (i) of Article 286 of the Constitution) the sale or purchase of any goods shall be deemed for the purposes of this Act, to have taken place in this State wherever the contract of sale or purchase might have been made (a) if the goods were actually in this State at the time when the contract of sale or purchase in respect thereof was made, or (b) in case the contract was for the sale or purchase of future goods by description, then, if the goods are actually produced or found in this State at any time after the contract of sale or purchase in respect thereof was made; Explanation (III).
Notwithstanding anything to the contrary in the Indian , the sale of any goods which have actually been delivered in the State of Madhya Pradesh as a direct result of such sale for the purpose of consumption in the said State, shall be deemed, 93 for the purpose of this Act, to have taken place in the said State, irrespective of the fact that the property in the goods has, by reason of such sale passed in another State." "2.
(j) 'turnover ' means the aggregate of the amounts of sale prices and parts of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of sales or supply of goods in the carrying out of any contract affected or made during the prescribed period; and the expression 'taxable turnover ' means that part of a dealer 's turnover during such period which remains after deducting therefrom (a) his turnover during that period on (ii)sales to a registered dealer of goods declared by him in the prescribed form as being intended for resale by him by actual delivery in Madhya Pradesh for the purpose of consumption in that State or of goods specified in such dealer 's certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State, and of containers and other materials used in the packing of such goods;" "4.
(6) Where any goods are purchased by a registered dealer as being intended for resale by him by actual delivery in Madhya Pradesh for the purpose of consumption in that State, or as being goods specified in such dealer 's certificate of registration as intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and such goods are utilised by him for any other purpose, the price paid by him for such goods shall be included in his turnover and be liable to tax in accordance with the provisions of this Act." "27 A. (a) Notwithstanding anything contained in this Act (a) a tax on the sale or purchase of goods shall not be imposed under this Act (i) where such sale or purchase takes place outside the State of Madhya Pradesh; or (ii)where such sale or purchase takes place in the course of import of the goods into, or export of the goods out of, the territories of India; 94 (b) a tax on the sale or purchase of any goods shall not, after the 31st day of March 1951, be imposed where such sale or purchase takes place in the course of inter State trade or commerce except in so far as Parliament may by law otherwise provide.
(2) The Explanation to clause (1) of Article 286 of the Constitution shall apply for the interpretation of subclause (i) of clause (a) of sub section (1).
" Article 286(1) and (2) of the Constitution, as it stood at the material time, is reproduced below: "286(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place: (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
Explanation.
For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State.
(2)Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce.
Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty first day of March, 1951.
" In m/s Mohanlal Hargovind Das vs The State of Madhya Pradesh,(1) it was held by this Court that the transaction of purchase of tobacco by the appellant from dealers outside the territory of Madhya Pradesh were transactions in the course of inter State (1) ; 95 trade or commerce and since the ban imposed by article 286(2) was in operation, the appellant was exempt from liability to pay tax on those transactions.
On January 30, 1956, the President of India promulgated an Ordinance called 'The Sales Tax Laws Validation Ordinance, 1956 ' (Ordinance No. 3 of 1956) which was repealed and replaced by the Sales Tax Law Validation Act, 1956 (Act 7 of 1956) which came into force on March 21, 1956.
Section 2 of this Act states: "Notwithstanding any judgment, decree or order of any Court, no law of a State imposing or authorising the imposition of, a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter State trade or commerce during the period between the Ist day of April, 1951 and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce; and all such taxes levied or collected or purporting to have been validly levied or collected during the aforesaid period shall be deemed always to have been validly levied or collected in accordance with law.
Explanation.
In this section 'law of a State ' in relation to a State specified in Part C of the First Schedule to the Constitution, means any law made by the Legislative Assembly, if any, of that Sate or extended to that State by a notification issued under Section 2 of the Part C States (Laws) Act, 1950 (30 of 1950)".
It was argued by Mr. A. K. Sen on behalf of the appellant, in the first place, that section 27 A of the Act places a restriction on the power of the taxing authorities and so long as it stood unrepealed there was no pre existing law authorising the imposition of tax on sales made in the course of inter State trade or commerce and in consequence the Sales Tax Laws Validation Act, 1956 which merely lifted the ban and did not impose any tax, bad no application to the case of the appellant.
To put it differently, the contention of Mr. A. K. Sen was that before advantage could be taken of the Sales Tax Laws Validation Act, 1956 there had to be in existence a State Act imposing tax on such sales and section 27 A of the Act imposed no such tax on the sales.
We are unable to accept this argument as correct.
An identical question was the subject matter of consideration by this Court in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh & another(1) and it was held that section 22 of the Madras Sales Tax Act had a positive content and the Explanation in the context of section 22 authorised the State of (1) ; 96 Madras to impose tax on sales falling within its purview.
In the course of his judgment Venkatarama Aiyar, J., speaking for the Court, observed: "These considerations will clearly be inapposite in construing a taxing statute like the Madras Act, the object of which is primarily to confer power on the State to levy and collect tax.
When we find in such a statute a provision containing a prohibition followed by an Explanation which is positive in its terms, the true interpretation to be put on it is that while the prohibition is intended to prevent taxation of outside sales on the basis of the nexus doctrine, the explanation is intended to authorise taxation of sales falling within its purview, subject of course to the other provisions of the Constitution, such as article 286(2).
It should be remembered that unlike the Constitution, the law of a State can speak only within its own territories.
It cannot operate either to invest another State with a power which it does not possess, or divest it of a power which it does possess under the Constitution.
Its mandates can run only within its own borders.
That being the position, what purpose would the Explanation serve in section 22 of the Madras Act, if it merely meant that when goods are delivered under a contract of sale for consumption in the State of Madras, the outside State in which property in the goods passes has no power to tax the sale? That is not the concern of the State of Madras, and indeed, the Legislature of Madras would be incompetent to enact such a law.
In its context and setting, therefore, the Explanation to section 22 must mean that it authorises the State of Madras to impose a tax on sales falling within its purview.
Thus, while in the context of article 286(1) (a) the Explanation thereto could be construed as purely negative in character though positive in form, it cannot be so construed in its setting in section 22 of the Madras Act, where it must have a positive content.
" Section 22 of the Madras Act is couched in a similar language to section 27 A of the Act.
In our opinion, the principle of the decision in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh & another(1) therefore governs the present case.
We should also refer to the additional circumstance that in the present case the third Explanation to section 2(g)incorporates into the definition of 'sale ' the Explanation occurring in article 286 in contrast to the Madras Act where there is no such incorporation in the definition.of sale under section 2(h) of that Act.
We are accordingly of the opinion that the argument of the appellant must be rejected on this aspect of the case.
(1) ; 97 The next question to be considered in this appeal is whether the provisions of section 4(6) of the Act are attracted in the circumstances of the case.
It was submitted for the appellant that the section has no application because tobacco was not specified in the certificate of registration granted to the appellant "as intended for use by it as raw material in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State".
Section 2(j) of the Act, as it originally stood, was to the following effect : "Sales to a registered dealer of goods specified in such dealer 's certificate of registration as being intended for resale by him, or for use by him in the manufacture of any goods for sale or in the execution of any contract and on sales to a registered dealer of containers and other materials for the packing of such goods;" The section was amended from time to time until, with effect from December 1, 1953 it stood as follows: "Sales to a registered dealer of goods declared by him in the prescribed form as being intended for resale by him by actual delivery in Madhya Pradesh for the purpose of consumption in that State or of goods specified in such dealer 's certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State, and of containers and other materials used in the packing of such goods;" Section 4(6) of the Act was also inserted with effect from December 1, 1953 by the Madhya Pradesh Sales Tax (Amendment) Act 1953 (Act 20 of 1953).
In consequence of these amend ments it became necessary to amend the certificate of registration granted to the appellant before the amendment of the Act.
Therefore, on January 5, 1954, even before the relevant Rule was amended, the appellant applied for substitution of the words "raw materials" for the words "for the purpose of manufacture".
In allowing the application the Sales Tax Officer did not comply with the language of Form II but merely specified as raw materials "Tendu leaves, Tobacco, Yarn" The contention of the appellant is that the purchase of tobacco cannot be taxed because it was not "specified in the dealers ' certificate of registration as intended for use by him as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State" as required by section 4(6) of the Act.
We are unable to accept the argument of the appellant as correct.
It is true that there is a technical omission in the order of the Sales Tax Officer amending the certificate of registration, but the certificate must be fairly construed in the light of the language 98 of section 8 and other relevant provisions of the Act.
Before the amendment made by Act XX of 1953 section 8(3) read as follows: "8.
(3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which, in the case of a registered dealer who himself manufactures any goods for purposes of sale shall specify the class or classes of goods which are intended to be used by him in the manufacture of such goods." After the amendment the sub section was to the following effect: "8.
(3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which, in the case of a registered dealer who manufac tures any goods for purposes of sale by 'actual delivery in Madhya Pradesh for the purpose of consumption in that State shall specify the raw materials which are intended to be used by him in the manufacture of such goods.
" In this connection reference may be made to section 2(j) (a) (ii) Which states that a selling dealer is entitled to deduct from his turnover sales to a registered dealer of goods "specified in such dealer 's certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State".
It is manifest that the only legitimate object which the purchasing dealer seeks in having a class of good specified in the certificate of registration as "raw materials" is to purchase the goods tax free in the sense contemplated by the Act.
By asking for such specification the dealer represents that he intends to use the goods specified in the manufacture of other goods for the purpose of sale by actual delivery in the State of Madhya Pradesh for the purpose of consumption in that State.
In this context reference should be made to declarations made by the appellant to the Bombay dealers printed at page 88 of the Paper Book.
In these declarations the appellant stated that it was purchasing tobacco for use as raw materials in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and that tobacco was so specified in its certificate of registration.
As we have already said, the certificate of registration granted to the .appellant must be construed in the context of section 8 as it stood after ,its amendment and the declarations of the appellant made to the Bombay dealers.
If the language of the certificate is so construed 99 in the context of the amended section 8 of the Act and along with the declarations of the appellant, it is manifest that the appellant is liable to pay tax on tobacco imported from Bombay dealers for the relevant periods and that the requirements of section 4 (6) of the Act are satisfied in this case.
The view that we have taken is borne out by the decision of this Court in Modi Spinning & Weaving Mills Co. Ltd. vs Commissioner of Sales Tax Punjab, and another(1) in which it was held that the registration certificate was only evidence that the assessee was a registered dealer for purposes of certain commodities to be used in manufacture and any formal defect in the registration certificate was not material.
We therefore hold that the technical omission of the Sales Tax Officer to make a specific entry in the certificate will not confer any benefit on the appellant if there is other incontrovertible evidence in the case to show that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State.
We, therefore, hold that Mr. A. K. Sen has not been able to make good his argument on this aspect of the case.
For these reasons this appeal fails and must be dismissed with costs.
G.C. (1) 16 section T. C. 310.
Appeal dismissed.
[/INST]The appellant was a firm in Madhya Pradesh and was registered as a dealer ' under the Central Provinces and Berar Sales Tax Act, 1947 as amended by the Madhya Pradesh Sales Tax (Amendment) Act, 1953.
During 1951 and 1955 the firm imported tobacco from the State of Bombay on the declaration that it would be used as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for consumption in that State.
Tobacco was mentioned as one of the raw materials in the firm 's registration certificate issued under section 8 of the Act.
However the goods manufactured by the firm were utilised for a different purposes i.e. for export outside the State.
Under section 4(6) of the Act when goods were used for a different purpose other than the one declared and mentioned in the registration certificate the price paid by the dealer for such goods would be included in his taxable turnover.
However in a writ petition before the High Court the appellant firm contended that the goods exempt as interstate sales were exempted from levy of sales ,,tax under section 27A of the Act which incorporated the bans in article 286 of ,the Constitution.
The writ petition was allowed in September 1955.
However in '1956 the Sales tax Validation Ordinance and thereafter the Sales Tax Laws Validation Act were passed.
Accordingly the Sales Tax ,Authorities issued notices to the appellant firm proposing to levy purchase ,tax on the tobacco purchased by it from non resident dealers during the period November 7, 1953 to September 5, 1955.
The appellant thereupon filed another writ petition before the High Court challenging the levy but it was dismissed.
With certificate the appellant came to this "court.
It was urged on behalf of the appellant that (i) before advantage could be taken of the Sales Tax Laws Validation Act.
1956 there had to be in existence a State Act imposing tax on inter State.sales and section 27A of the Act imposed no such tax, (ii) section 4(6) had no application because tobacco was not specified in the certificate of registration granted to the appellant as intended for use by it as raw material in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State.
" HELD : (i) Read with the third explanation to section 2(g)of the Act section 27 A had a positive and not merely a negative content.
It gave power to the State of Madhya Pradesh, to impose a tax on a transaction falling 'Within its purview.
It was therefore a pre existing law validated by the Sales Tax Laws Validation Act, 1956 and the appellant could be taxed under it in respect,of inter State sales only during the relevant period.
[95 H; 96 G H] 89 M.P.V. Sundararamier & Co. vs The State of Andhra Pradesh, ; , relied on.
(ii)The declaration made by the appellant to the Bombay dealers was for the purpose of obtaining exemption from purchase tax.
The same was the purpose of the mention of tobacco in the registration certificate under section 8.
If the language of the certificate were construed in the context of the section 8.
of the Act (as amended) and along with the declaration of the appellant, it was manifest that the appellant was liable to pay tax on tobacco imported from Bombay dealers and that the requirements of a. 4(6) were satisfied.
The technical omission of the Sales Tax Officer to make a specific entry in the certificate would not confer any benefit on the appellant when there was other incontrovertible evidence to show that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State.
[98 F H; 99 A] Modi Spinning & Weaving Mills Co. Ltd. vs Commissioner of Sales Tax, Punjab & Anr.
16 S.T.C. 310, relied on.
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<s>[INST] Summarize the judgementivil Appeal No. 1484 of 1974.
From the Judgment and Decree dated 26.4.1974 of the Jammu & Kashmir High Court in Civil Second Appeal No. 4 of 1973.
A.K. Sen, E.C. Agrawala, Ms. Purnima Bhat, Atul Sharma and A. V. Palli for the Appellant.
S.K. Bhattacharya (NP) for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Hazrat Baba Ibrahim, a Saint, lived in the area called Rakhbahu in the city of Jammu.
After his demise in the year 1872 his grave became a place of worship for those who had faith in him.
The place was called Ziarat Hazrat Baba Ibrahim (hereinafter called "the Ziarat").
The Ziarat was managed by Sain Ladha, a nephew of Baba Hazrat Ibrahim After Sain Ladha 's death his son Mian Lal Din succeeded him.
At present the Ziarat is being managed by the sons of Mian Lal Din who died in the year 1963.
The Jammu & Kashmir Muslim Wakf Act came into force in the year 1959 (hereinafter called "the Act") whereunder a committee of muslim Wakf (hereinafter called "the Committee") has been incorporated.
The Committee filed a suit against Anayatullah and eight others (sons of Mian Lal Din) restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat.
According to the plaintiff, the Government of Jammu & Kashmir vide two orders dated September, 22, 1955 and November, 29, 1958 granted land measuring 3 acres and 6 acres 2 kanals 6 Marlas respectively to the Ziarat.
It was alleged that the defendants were treating the property to be their personal property.
They were mismanaging and also alienating the same.
The defendants in their written statement resisted the suit on a number of grounds and 256 stated that the land in dispute was transferred by the Government in favour of their father in lieu of his possessory right over about 400/500 Kanals of land which was taken over by the Government.
It was further claimed that the land was the absolute property of their father and the same has devolved upon the defendants by succession.
It was further claimed that notwithstanding the word "Ziarat" in the Government Orders the grants were in favour of the defendants father in his personal capacity.
The transfer of the land was not in the form of any dedication and as such was not a property of the Ziarat.
The defendants claimed the right to deal with the property in any manner they liked on the ground that the same belonged to them.
The Trial Court by its Judgment dated August 6, 1970 came to the conclusion that the two grants by the State Government were in fact made in favour of Mian Lal Din and not in favour of the Ziarat.
The suit of the committee was dismissed with costs.
The District Judge, Jammu by his Judgment dated February 28, 1973 upheld the findings of the Trial Court and dismissed the appeal of the committee.
The committee went up in second appeal before the Jammu & Kashmir High Court.
Murtaza Fazal Ali, C.J. (as the learned Judge then was) by his judgment dated April 26, 1974 set aside the judgments of the courts below and allowed the appeal of the committee.
The Learned Chief Justice decreed the plaintiff 's suit for injunction as prayed for.
This appeal via Special Leave Petition is against the judgment of the High Court.
Mr. Ashok Sen, learned counsel appearing for the appellant has taken us through the judgment of the Trial Court and that of the Lower Appellate Court.
According to him, the High Court has erred in upsetting the findings of the courts below based on appreciation of evidence.
Mr. Sen contended that the appellant 's ancestors were in possession of ' more than 140 Kanals of land for a very long period and had established possessory title over the said land.
According to him, the Government took over the said land from the father of defendants and in lieu of that two grants in the years 1955 and 1958 were given to Mian Lal Din in his personal capacity.
It was contended that on appreciation of the evidence produced before the Trial Court the courts below found as a fact that the defendants were the owners of the property subject matter of the Government grants and as such the High Court acted illegally in upsetting the same.
The learned counsel relied upon the following findings of the Lower Appellate Court in support of his contention: 257 "As discussed above, the possession of the defendants and their father and grand father and Hazrat Baba Ibrahim over 40 kanals of land as Arak and about 100 kanals of land under cultivation is proved, and it is further proved from the Government order Ext.
D.A./4 refusing the recommendation of the Financial Commissioner that the basis for the grant of proprietary rights in respect of 74 kanals of land was the personal possession of the father of the defendants and his predecessors and it was in lieu of the possession of that chunk of land that the Government parted with 74 kanals of land.
The counsel for the plaintiff has further argued that because the Government orders of 1955 and 1958 mentions the word "Ziarat" as the grantee it is not permissible for the Civil Court to hold that the grant was in favour of the father of the defendants.
Keeping in view the back ground as discussed above, I am unable to agree with the contention of the learned counsel for the plaintiff.
The mere fact that Mian Lal Din was associated with the Ziarat as a descendant of Hazrat Baba Ibrahim Sahib and the mere fact that the word "Ziarat" was used in the Government orders of 1955 and 1958 would not preclude this Court from holding that the grant was not in favour of the Ziarat but was in fact in favour of the father of the defendants.
The contents of the Government orders of 1955 and 1958 referred to above are to be considered with the facts that Mian Lal Din and his ancestor possessed the land in their individual capacity; that the Government repelled the claim of Mian Lal Din for additional grant of land on the simple ground that the land already granted to him was costlier than the land which he held in possession; that there was no intention on the part of the Government to dedicate the land to the Ziarat out of any pious intention; that it was a sort of bargain between Mian Lal Din, the father of the Defendants and the Government where under the land measuring 74 kanals was parted within the proprietary rights by the Government in consideration of Lal Din 's having abandoned possession of over 400 kanals Of land; the fact that the Committee plaintiff also treated the grant in favour of Lal Din as is evident from Ext.
PD also supports my view.
The fact that the defendants and their father leased out a part of the property on a long lease to third parties, the fact that the defendants got compensation for a portion of the land acquired by the Government; the fact that there was no claim laid to the land by the Wakf 258 Committee upto the year 1966 even when the Government orders were passed in 1955 and 1958, the fact that no demand was ever made from Lal Din to render accounts in respect of the income specially derived by him from the suitland, the fact that a large number of shops, khokhas and buildings have been constructed by the defendants (assuming that one room was constructed by the Wakf Committee) also is determinative of the fact that the transfer was infact made in favour of Lal Din and not in favour of the Ziarat as such.
" It is not disputed that the property which is subject matter of the dispute was granted by the State Government under the two orders dated September 22, 1955 and November, 29, 1958.
The respondent plaintiff claims that the grant was in favour of the Ziarat whereas the appellant defendants claim that the property was given to the father of the defendants absolutely and in his personal capacity.
The two documents of title by which the grant was made may now be referred to.
The Government order dated September 22, 1955 is as under: "It is ordered that 3 acres of land of Rakhbahu of the Rakhs and Farms Deptt.
surrounding the Ziarat Shareef of Baba ibrahim Shah be granted to the said Ziarat e Shareef permanently.
By order of the Cabinet.
Sd/ (G.M. Bakshi) Prime Minister".
The Government order dated November, 1958 runs thus; "(1) The confirmation of the action taken by the Prime Minister in granting land measuring 6 acres 2 kanals and 6 marlas to Ziarat Shareef Baba Ibrahim Shah Sahib at Ghandi Nagar Jammu and (2) The grant of compensation amounting to Rs. 12,500 by debit to Housing grant in favour of the said Ziarat for 12.5 kanals of land @ Rs. 1000 per kanal, taken over by the Public Works Department for development of Gandhi Nagar out of the area of 3 acres sanctioned vide Cabinet Order No. 1418 C dated 20.9.55.
By order of the Jammu and Kashmir Government Sd/ Noor Mohd Secretary to Government" 259 The above quoted orders of the Government are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to Ziarat alone and not to the appellant defendants in their personal capacity.
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders.
The High Court interpreted the above quoted two orders as under: " The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shared of Baba Ibrahim Shah be granted to the said Ziarat permanently.
The later order of 1958 also says the same thing.
It is nowhere mentioned in any of these orders that the land was given not to the Ziarat but to the defendant who was Mujawar of the Ziarat either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government.
Since the recitals in the documents are absolutely clear and are expressed in unmistakable terms, there is no room for adducing evidence adduced to contradict the recitals of these two documents.
Thus the evidence adduced by the defendants to show that the grant was made not to the Ziarat but to them is clearly hit by sections 91 and 92 of the Evidence Act and is, therefore, inadmissible.
Further more the grant was made in 1955 and 1958, that is to say several years before and the Government has not come forward after such a long lapse of time to support the stand of the defendants that the grant was intended for them in their personal capacity and not for the Ziarat.
I fail to understand how in face of such clear recitals in the documents the courts below have by a process of evisceration and interpolation construed the documents to means as if it was a grant in favour of the defendants.
The courts below appear to have been influenced by the fact that when the defendants represented to the Government that the lands in their cultivating possession had been taken over by the Government without paying compensation, some Government Officers replied that a substantial grant of land had been made to the Ziarat.
This obviously was a wrong stand taken by the Government Officers and could not clothe the defendants with the right of wiping out the legal validity of the grant made year before the officers gave this reply.
Indeed the remedy of the defendants was to sue for damages or for compensation for, the land unlawfully acquired by the Government.
There was no justification for the 260 defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same which was an managers or trustees and asset a hostile title to it.
The law on the subject is absolutely clear that a manager or a trustee in possession of a religious shrine cannot be allowed to asset a hostile title unless he formally surrenders possession to the lawful authority.
Before going into this point of law at some length it may be necessary to refer to certain proved facts in the case: (1) It is not disputed that the present Ziarat existed since a long time and became a Wakf by long public user.
(2) That the first defendant was the Sajadanashin or caretaker of the Ziarat.
(3) That the land belonged to the Government originally.
(4) That the Government granted the land in dispute to the Ziarat and not to the defendants.
(5) That the defendants were admittedly in possession of the Ziarat as also the properties appurtenant thereto.
In these circumstances it is clear that even if the defendants were in possession of the lands, their possession would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat.
In other words the possession of the defendants would be for the benefit of the Ziarat.
We agree with the above quoted findings of ' the High Court and approve the same.
We do not agree with the argument of Mr. Ashok Sen that the High Court was in error in upsetting the findings of the courts below.
The question before the High Court was the interpretation of two government orders which was essentially a question of law.
The High Court was justified in observing that in the face of clear and unambiguous terms of the Government orders it was not permissible for the appellant defendants to adduce evidence to show that the grant was made to them and not to the Ziarat.
No other point was raised before us.
We, therefore, dismiss the appeal.
The respondent plaintiff shall be entitled to costs throughout which we quantify as Rs. 15,000.
N. P. V. Appeal dismissed.
[/INST]The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of worship, in the Rakhbahu area of Jammu City was granted certain land to the Ziarat by the State Government vide two orders dated September 22, 1955 and November 29, 1958.
The Ziarat was being managed by the 1st appellant and his brothers, since the death of their father in 1963.
The Committee of Muslim Wakf, incorporated under the Jammu and Kashmir Muslim Wakf Act, which came into force in 1959, file a suit for restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat, on the allegation that the appellants defendants were treating the lands granted to the Ziarat, as their personal property and mismanaging and also alienating the same.
Resisting the suit, the appellants, defendants contended, inter alia, that notwithstanding the use of the word "Ziarat" in the two Government orders the transfer of the land in dispute was in their father 's favour in his personal capacity, in lieu of his possessory right over about 400/500 kanals of land which was taken over by the Government, and not in the form of any dedication, and as such the land was not the property of the Ziarat but their father 's absolute property, and had devolved upon them by succession and, therefore, they had the right to deal with the property in any manner they liked.
The trial court dismissed the suit, holding that the two grants were in fact made in favour of defendants ' father and not the Ziarat.
254 The first appellate court upheld the trial court 's findings.
However, in second appeal, the High Court held that from the recitals of the two orders of the Government of 1955 and 1958 it was clear that the two grants were in favour of the Ziarat.
Hence, the appellants defendants filed the appeal, by special leave before this Court contending that the High Court had erred in upsetting the findings of the courts below, based on appreciation of the evidence that, as a fact, the appellants defendants were the owners of the property, the subject matter of the Government grants.
Dismissing the appeal, the Court, HELD: 1.1 The two orders of the Government dated September 22, 1955 and November 29, 1958 are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to the Ziarat alone and not to the appellants defendants in their personal capacity.
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders.
The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said Ziarat permanently.
The later order of 1958 also says the same thing.
It is nowhere mentioned in any of those orders that the land was given not to the Ziarat but to the father of the appellants defendants, who was Majawar of the Ziarat, either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government.
[259A, B C] 1.2 A manager or a trustee in possession of a religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority.
[260B] In the instant case, there was no justification for the appellants defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same, which was as managers or trustees and assert a hostile title to it.
Even if they were in possession of the lands, it would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat.
In other words, the possession would be for.
the benefit of the Ziarat.
[259H, 260A, E] 1.3 In the face of clear and unambiguous terms of the Government orders, it was not permissible for the appellants defendants to adduce evidence to show that the grant was made to them and not to the 255 Ziarat.
The question was of interpretation of two Government orders, which was essentially a question of law.
[260G] In the circumstances, the High Court was not in error in upsetting the findings of the courts below.
[260F]
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 261 of 1976.
Appeal by Special Leave from the Judgment and order dated 2 12 1975 of the Andhra Pradesh High Court in Criminal Misc.
Petition No. 2064/75.
D. V. Patel, Naunitlal and Miss Kiran Singh for the Appellants.
P. P. Rao, K. Narayan Rao and G. N. Rao for the Respondent.
93 The Judgment of the Court was delivered by JASWANT SINGH, J.
The appellants who are Directors of Tandur and Navandgi Stone Quarries Private Limited and holders of a mining lease for extraction of lime stones (Shahabad Stones) are being prosecuted in the Court of Munsif, Judicial Magistrate, First Class, Tandur, for the alleged violation of Rule 21 (1)(ii) of the Mineral Conservation and Development Rules, 1958 which is made punishable under Rule 27 of the said Rules in that they failed to employ a qualified geologist or a mining engineer.
they made an application before the trial Magistrate urging by way of preliminary objection that the complaint against them was not maintainable in view of the fact that the 'Shahabad Stones ' Which were being extracted by them were used fol.
building and construction purposes and as such were minor minerals which were specifically excluded from the purview of the Rules.
The Magistrate dismissed the application holding that what was being operated by the appellants was 'a mine for the purpose of the provisions of Rule 21 of the Mineral Conservation and Development Rules, D, 1958 '.
The appellants thereupon moved the High Court for quashing the aforesaid criminal proceedings pending against them reiterating that as the Shahabad Stones which they were extracting were used for building purposes and were described as minor minerals in Item 15 of Schedule I to the Andhra Pradesh Minor Mineral Concession Rules, 1966 (hereinafter referred to as M.M.C. Rules, 1966), the complaint against them was not tenable. 'The High Court dismissed the application holding that the inherent powers possessed by it under Section 482 of the Code of Criminal Procedure 1973 could be invoked and exercised only when the facts alleged in the complaint if they are accepted to be correct at their face value, do not make out an offence with which the accused is charged.
The High Court further held that merely because the 'Shahabad Stones ' were included in Schedule I to Rule 10 of the M.M.C. Rules, it could not be said straightway that the Stones which were being extracted by the appellants were minor minerals and that some evidence regarding their user was necessary for determination of the question as to whether the appellants were entitled to the benefit of the provision of Rule 2 of the M.M.C. & D. Rules which Provided that the M.M.C. Rules do not apply to the minor minerals.
It is this refusal of the High Court to quash the proceedings which has given rise to the present appeal.
It is now well settled that the High Court does not ordinarily interfere at an interlocutory stage of a criminal proceedings pending in a subordinate Court.
Bearing in mind the well recognised principles of law governing the matter and taking into consideration the nature of 94 the impugned order, we think the High Court was right in declining to grant relief to the appellants.
It is also not a matter in which we may legitimately interfere in exercise of our extraordinary powers under Article 136 of the Constitution specially when the case is at its threshold and evidence has still to be adduced as to whether the minerals extracted could or could not be used as a major mineral for certain purposes.
It must be realised that it is not possible to determine difficult question of the kind involved in the instant case purely in abstract without relevant evidence bearing on the matter in issue.
Accordingly, we dismiss the appeal.
Our order will not, however, be interpreted as barring the appellants from raising any defence or contention that may be open to them before the trial court which will dispose of the same in accordance with law uninhibited by any observations made by it earlier or by the High Court in the course of its Order dismissing the application under section 482 of the Code of Criminal Procedure, 1973.
S.R. Appeal dismissed.
[/INST]"Shahabad Stones" are included under Item 15 in Schedule I to Rule 10 of the Andhra Pradesh Minor Mineral Concession Rules 1966.
The appellants, who are directors of Tandur and Navandgi Stone Quarries (Pvt.) Ltd. and holders of mining lease for extraction of lime stones (Shahabad Stones when being prosecuted, for the alleged violation of Rule 21(1)(ii) of the Mineral Conservation and Development Rules, 1958 which is made punishable under Rules 27 of the said rules in that they failed to employ a qualified geologist or a mining engineer, raised a preliminary objection as to the maintainability of the complaint in view of the specific exclusion of the "Shahabad Stones" from the purview of the 1958 Rules, being a minor mineral being used for building and construction purposes.
The trial magistrate dismissed the application and the High Court declined to interfere under Section 48 of the Criminal Procedure Code, 1973.
Dismissing the appeal by special leave the Court, ^ HELD: As the High Court does not ordinarily interfere at an interlocutory stage of a criminal proceedings pending in a subordinate Court, the A.P. High Court was right in declining to grant relief to the appellants, bearing in mind the well recognised principles of law governing the matter and taking into consideration the nature of the impugned order.
It is also not a matter in which Supreme Court may legitimately interfere in exercise of their extra ordinary powers under article 136 of the Constitution especially when the case at its threshold and evidence has still to be adduced as to whether the minerals extracted could or could not be used as a major mineral for certain purposes.
It is not possible to determine difficult question of the kind involved in the instant case, purely in abstract without relevant evidence bearing on the matter in issue.
[93G H, 94A B]
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<s>[INST] Summarize the judgementCivil Appeal No. 1381 of 1968.
(Appeal by Special Leave from the Judgment and Decree dated the 22 2 1967 of the Bombay High Court in First Appeal No. 12/1960).
M. N. Phadke, M. N. Shroff and section P. Nayar, for the appellant.
V. section Desai and D. Goburdhan, for the respondent.
981 The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short question as to whether the Watan held by the respondent at the date of coming into force of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 was a Watan of the soil, or a Watan of land revenue only, in respect of certain lands situate in village shirambe, Taluka Koregaon, District North Statara.
If the Watan was in respect of the soil, the respondent would not be entitled to any compensation for the resumption of the Watan lands, but if it was a Watan of land revenue only, the respondent would have a claim for compensation for a "a sum equal to ten times the amount of such land revenue" under section 6(2) of the Act.
The respondent claimed that the Watan was of land revenue only and not of the soil and he was, therefore, entitled to compensation as provided in section 6(2) of the Act and filed a suit for recovery of Rs. 15,074 4 0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, Satara.
The claim was decreed by the learned Civil Judge, Senior Division and on appeal by the State of Maharashtra the High Court affirmed the view taken by the learned Civil Judge, Senior Division.
The High Court construed the Sanad granted by the British government in favour of the ancestors of the respondent in the light of the surrounding circumstances and particularly the entries contemporaneously made in the alienation register and came to the conclusion that the grant embodied in the Sanad was not a grant of the soil but was merely a grant of land revenue and the respondent was, therefore, entitled to claim compensation the basis laid down in section 6(2) of the Act.
The State of Maharashtra being aggrieved by the decree passed by the learned Civil Judge, Senior Division and affirmed by the High Court preferred the present appeal with special leave obtained from this Court.
We have carefully gone through the judgment of the High Court and we find ourselves completely in agreement with the conclusion reached there.
The judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it.
The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent.
The Sanad undoubtedly used the word 'lands ' to describe the subject matter of the grant, but the word 'land ' is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word 'land ' in the Sanad, since the Sanad was apparently granted pursuant to the enquiry made under Bombay Act 2 of 1863.
The description of the subject matter of the grant as 'lands ' in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil.
In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as 'Darobast ' or 'Jal ', 'Taru ', 'Truna ', 'Kastha ' and 'Pashan. ' Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was a grant of land revenue only and not a grant of the soil.
The High 982 Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court.
The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of land revenue and not of the soil.
This position was in fact accepted by the Revenue officers all throughout and that is evident from the order of the District Deputy Collector, Satara dated 19th August, 1937 (exhibit 28) and the decision dated 28th February, 1951 (exhibit 331) given by the Collector of North Satara allowing an appeal filed by the respondent.
We are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the respondent was entitled to compensation in the sum of Rs. 15,074 4 0 under section 6(2) of the Act.
It is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all.
The judgment of the High Court was pre eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue officers over the last 75 years.
The learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reasoning of the judgment.
It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.
We do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected.
The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there are no chances of success.
It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who can not afford the large expense involved in fighting a litigation in this Court.
It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost.
The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.
We accordingly dismiss the appeal with costs.
S.R. Appeal dismissed.
[/INST]For a long period of time prior to 1950 the text books for recognised schools in the State of Punjab were prepared by private publishers with their own money and under their own arrangements and they were submitted for the approval of the Government.
The Government approved some books on each subject as alternative text books, leaving it to the discretion of the Head Masters of different schools to select any alternative book on each subject.
In May 1950 books on certain subjects (like agriculture, history, social studies, etc.) were prepared and published by the Government themselves without inviting offers from private publishers.
With respect to other subjects, offers were invited from "publishers and authors".
The alternative method was given up and only one text book on ,each subject was selected.
The Government charged as royalty 5% on the sale price of all the approved text books.
In 1952 a notification was issued by the Government which omitted the word "Publishers" altogether and invited only "authors and others" to submit books for approval by the Government.
The "authors and others" whose books were approved, had to enter into an agreement in the form prescribed by the Government the principal term of the agreement was that the copyright in these books would vest absolutely in Government and the authors and others" would get a royalty of 5% on the sale price of the text books.
It was contended that the publishing, printing and selling of text books was thus taken by the Government exclusively into its own hands and the private publishers were altogether ousted from the business.
The petitioners, who purport to carry on the business of preparing, printing, publishing and selling text books for recognised schools in the Punjab, pro29 226 ferred the present petition under article 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution.
Held that the action of the Government, whether it was good or bad, does not amount to an infraction of the fundamental right guaranteed by article 19(1)(g) of the Constitution.
In the present case no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government of the Punjab done by them in furtherance of their policy of nationalisation of the text books for the school students.
A more chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking within the meaning of article 31(2) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same.
Articles 73 and 162 of the Constitution do not contain any definition as to what the executive function is and what activities would legitimately come within its scope.
They are concerned primarily with the distribution of executive power between the Union on the one hand and the component States on the other.
They do not mean that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union executive or the State executive, as the case may be,can proceed to function in respect of them.
On the other hand, the language of article 162 Clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already.
The same principle underlies article 73 of the Constitution.
The Commonwealth and the Central Wool Committee vs The Colonial Combing, Spinning and Weaving Co. Ltd. (31 C.L.R. 421), Attorney General for Victoria vs The Commonwealth, ; and Motilal 1.
The Government of the State of Uttar Pradesh (A.I.R. 1951 Allahabad 257), referred to.
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<s>[INST] Summarize the judgementAppeal NO. 1317 of 1975.
(From the Judgment and Order dated 8 10 1974 of the Bombay High Court in Appeal No. 73 of 1974) P.H. Parekh and Miss Maniu Jetley, for the Appellant section K. Dholakia and R.C. Bhatia, for the respondent.
F.S. Nariman and B.R. Aggarwal, for the intervener.
The Judgment of the Court was delivered by CHANDRACHUD, J.
A question of practical importance concerning the dying profession of Solicitors arises in this appeal by special leave.
The question is whether the bill of costs of a Solicitor or an Attorney who has rendered profes sional services to his client in the City Civil Court can be taxed by the Taxing Master, Original Side, Bombay High Court, and if so, whether it can be taxed on the Original Side scale.
The dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and there fore the question is not of growing importance.
All the same, though the question will by and by cease to have the importance which it has to day, we are informed at the bar that quite a few cases are kept pending in Bombay to await the decision of this appeal.
Certain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary.
The appellants appeared in the execution proceedings through a firm of Solicitors, M/s Raghavayya Nagindas & Co., respondents herein, who by the vakalatnama executed in their favour by the appellants, agreed to act, appear and plead for them in the City Civil Court.
The respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment, which was eventually raised in about 1960.
Thereafter, they submitted three bills to the appellants for their costs and remuneration.
Since the bills remained unpaid, the respond ents obtained on February 8, 1972 an order from the Prothon otary of the High Court directing the TaXing Master to tax the bills 354 The appellants appealed against the order of the Prothono tary by way of Chamber Summons which was dismissed by the Chamber Judge on October 26, 1972 with liberty to the Taxing Master to decide whether respondents were entitled to be remunerated on the Original Side scale of fees, as between an Attorney and.
client.
The Taxing Master rejected the appellants ' contention, taxed the respondent bills according to the scale of fees applicable on the Original Side of the High Court and directed the issuance of an allocatur.
Before the respondents could obtain a payment order on the basis of the allocatur, the appellants took out a Cham ber Summons.on May 7, 1973 challenging the order of the Taxing Master.
That Chamber Summons was dismissed by the Chamber Judge whose decision has been confirmed in appeal by a Division Bench.
Three contentions were raised by the appellants in the High Court: (1) A Solicitor 's bill for costs and remunera tion in respect of the work done by him in the City Civil Court cannot be taxed by the.
Taxing Master, Original Side, High Court; (2) The bill, in any event, cannot be taxed according to the scale of fees applicable on the Original Side as between an Attorney and client; and (3) The recovery of the amount taxed by the Taxing Master is barred by limi tation under article 113 of the .
The High Court rejected all these contentions by its judgment dated October 8, 1974.
Mr. Parekh, appearing for the appellants before us, did not press the third point regarding limitation and rightly so.
Article 113 of the , though residuary, applies to suits and cannot govern the special form of remedy available to the Attorneys for recovering their fees.
Proceedings in pursuance of that remedy are governed by rule 573(ii)(a) of the Original Side RUles and the proviso there to.
The proceedings for recovery of fees under those provi sions are not barred by time.
Counsel has, however, pressed the first two contentions with some zeal.
We will first take up for consideration the primary question whether the Taxing Master has jurisdiction at all to tax an Attorney 's bill of costs for professional services rendered by him to his client in connection with a litigation in a court other than the Bombay High Court, in this case the City Civil Court.
Rule 569 of "The Rules of the High Court of Bombay (Original Side), 1957" affords, in our opinion, a complete .answer to the appellants ' conten tion that the Taxing Master who is an officer of the Origi nal Side of the High Court has no jurisdiction tot tax the Attorneys ' bills in regard to work done by them in matters other than those on the Original Side.
Rule 539 occurs in Chapter XXIX of the Original Side Rules under the rubric "The Taxing Office".
The rule reads thus: "569.
The Taxing Master shall tax the bills of costs on every side of the Court (except the Appellate Side) and in the Insolvency Court.
All other bills of costs of Attorneys shall also be taxed by him when he is directed to do ' so by a Judge 's order.
" 355 The rule consists of two parts of which the first part confers jurisdiction on the Taxing Master to tax the bills of costs on every side of the High Court including bills relating to matters in the Insolvency Court but excluding those on the Appellate Side of the High Court.
If the rule were to stop with the first part, it would have been possi ble to say that the Taxing Master has no Jurisdiction to tax the bills in regard to matters outside the High Court.
But the second parts of the rule puts the matter beyond doubt by providing that all other bills of costs of Attorneys shall also be taxed by the Taxing Master it is argued on behalf of the appellants that "other bills of costs ' must be construed to mean "other bills of costs relating to matters on the Original Side of the High Court" and bills relating to non contentious matters.
We see no jurisdiction for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein.
"All other bills of costs of Attorneys" to which the second part Of the rule refers must 'mean all bills of costs of Attorneys other than those which are referred to in the first part of the rule.
That we conceive to be the plain meaning of the particular provision.
Rule 573 which was amended by Slip No. 190 also shows that the Taxing Master has jurisdiction to tax the bills of Attorneys in regard to professional services rendered by them in matters outside the High Court.
Amended rule 573(i)(a) provides that subject to the proviso and subject to the discretion of the Chamber Judge to enlarge the time, in "every suit or proceeding in the High Court" an Attorney shall lodge his bill of costs for taxation within five years after the disposal of the suit or the proceeding, an.d if an appeal is filed in the .
High Court, w!thin five years from the disposal of the appeal.
Amended rule 573(ii)(a) pro vides that subject to the proviso and to the Chamber Judge 's discretion, "In the case of matters which are not the sub ject of any proceedings in the High Court, an attorney shall lodge his bill of cost 's for taxation within five years from the completion of the matter.
" This latter rule prescribes the time within which an Attorney must lodge his bill of costs in regard to matters which are not the subject of any proceedings in the High Court.
The necessity for making this provision arose evidently because rule 569 empowers the Taxing Master to tax the Attorneys ' bills of costs in all matters except those on the Appellate Side of the High Court.
The appellants ' contention, if accepted, will render rule 573(ii)(a) otiose because according to that contention, no matter which is not the subject of any proceeding on the Original Side of the High Court or in the Insolvency Court could be taken before the Taxing Master for taxation of the Attorney 's bills.
It was then useless.
to provide that bills in regard to matters which are not the subject of any proceeding in the High Court must be filed within a particu lar period.
Apart from what appears to us to be the only reasonable construction of rule 569, the Bombay High Court, over a long course of years, has consistently taken the view that the Taxing Master has jurisdiction to tax Attorneys ' bills of costs in relation to professional services rendered by them in all matters, contentious or non contentious, and whichev er be the Court in relation to which the services 356 are rendered, except the Appellate Side of the 'High Court ill regard to which an exception has been expressly carved out by the rule '.
In Nowroji Pudumji Sirdar vs Kange & Savani(1) the appellants were represented by the respondent firm .of
Solicitors in litigation in the District Court and the Subordinate Courts of Poona.
The appellants having declined to pay the respondents ' bills on the ground that, they were excessive, respondents obtained an order from the Prothonotary for having the bills taxed by the Taxing Mas ter.
In an appeal from the decision of the Chamber Judge who upheld the Prothonotary 's order, it was contended by the appellants that the Taxing Master had no jurisdiction to .tax the bills of the respondents, firstly because the bills pertained to work which was not connected with the Original Side of the High Court and secondly because the services were rendered to the appellants by a partner of the respondent firm in his capacity as a pleader.
These conten tions were rejected by a Division Bench consisting of Sir Norman Macleod, C.J., and H.C. Coyajee, 1. who could "see no reason" why a Solicitor practising in Bombay and performing professional Services for a client regarding business in the mofussil should not be entitled to get his bills taxed by the Taxing Master on the Original Side of the High Court.
In coming this conclusion, the High Court relied on rule 494 of the Original Side Rules, 1922 which was identical with rule 569 of the Rules of 1957.
The High Court observed in Nowroji 's case that it may, be that Attorney would fall within the provisions of the Bombay Pleaders Act, 17 Of 1920, with regard to any work done in mofussil Courts after the coming into force of that Act, but that it was unnecessary to consider that question because the work for which the respondents, had lodged their bills was done before that Act had come into force, Relying upon this observation, it was submitted by Mr. Parekh that the decision in Nowroji 's case is not good law after the coming into force of the Bombay Pleaders Act.
It is not possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowroji 's case and for good reason which we will expiate while dealing with the appellants contention bearing on i the scale of fees according to which the bills can be taxed.
The relevant rule, couched in identical language age, with which the High Court was con cerned from time to time leaves no doubt that the Taxing Master has the jurisdiction to tax all bills of costs of Attorneys, except those in regard to the work done by them on the Appellate Side of the High Court.
In Chitnis & Kanga vs Wamanrao section Mantri(2) the appel lants, a firm of Solicitors, had obtained from the Prothono tary of the High Court an order under rule 534 of the Rules of 1936, directing the Taxing Master to tax their bill of costs relating to (1) a suit filed on the Original Side of the High Court, (2) a petition for probate in the District Court at Satara, (3) an appeal in the High Court on its (1) (2) 48 Born.
L.R.76.
357 Appellate Side and (4) certain miscellaneous work done in the mofussil.
The respondent, to whom the appellants had rendered these professional services, contended before the Taxing Master that the order of the Prothonotary was ultra vires insofar as it related to items (2), (3) and (4).
The Taxing Master rejected that contention whereupon the re spondent took out a Chamber Summons submitting that it was not competent to the Attorneys to take advantage of the procedure that applies to taxation of Solicitors ' costs on the Original Side of the High Court in respect of costs incurred in the mofussil and on the Appellate Side of the High Court.
The respondent further contended by the Chamber Summons that the matter was governed by the Bombay Pleaders Act, 17 of 1920, and therefore the Taxing Master had no jurisdiction to tax the appellants ' bill in regard to items 2, 3 and 4.
The Chamber Judge set aside the ex parte order of the Prothonotary without a speaking order, against which the appellants filed .an appeal which was heard by Sir John Beaumont, C.J., and Kama, J. The Division Bench held that the order of the Prothonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision contained in rule 534 of the Rules of 1936.
As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara Dis trict Court and the miscellaneous work done in the mofussil, the Court following the decision in Nowroji 's case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master of the Original Side, although it related to work done in the mofussil.
Adverting to the observation made in Nowroji 's case in regard to the effect of the Bombay Pleaders Act of 1920, the learned Judges held that the provisions of that Act had no effect on the question in issue.
The learned Chief Justice referred in his judgment to section 17 of the Act of 1920 which provided that a legal practitioner (which expression includ ed an Attorney) may enter into a special agreement as to the terms of his remuneration and to section 18 which dealt merely with the amount of pleader 's fees which could be recovered against the opposite party.
These provisions, according to the High Court, had nothing to do with the question whether an Attorney 's bill of costs in regard to the work done by him in the mofussil could be taxed by the Taxing Master.
in Nowroji (supra), the learned Judge held that by reason of rule 569, age & Refrigeration Limited,(1) Mody J., sitting singly, took the same view of the Taxing Master 's power to tax the Attorneys ' bills.
In that case the appellants had rendered professional services to the respondents in respect of a petition for winding up which was filed in the High Court of Rajasthan.
Respondents raised the same contenions which are raised by Mr. Parekh before us, namely, that the Prothonotary had no jurisdiction to pass the Order direct ing the Taxing Master to tax the bill and secondly, that the bill of costs could not be taxed on the Original Side scale.
Relying upon the decision in Nowroji (supra), the learned Judge,held that by reason of rule 569, the very rule with which we are concerned in the instant case, an (1) 358 Attorney of the High Court was entitled to have his bill of costs taxed by the Taxing Master in respect of professional work done by him even in a Court other than the Bombay High Court.
The learned Judge also negatived the second conten tion of the respondents before him, but we will turn to that part of the judgment later.
These decisions of the High Court contain a correct exposition of the relevant rule which was numbered as Rule No. 494 in the Rules of 1922, No. 534 in the Rules of 1936 and is now Rule No. 569 in the Rules of 1957.
The Rules of 1909 also contained a similar .rule bearing No. 491.
It is important to mention from the point of view of 'legislative ' history, that prior to the framing of the 1909 rules, the corresponding rule was Rule 544 of the 1907 Rules which.
in material respects, was worded differently.
It said: "Rules 544.
The Taxing Officer shall tax the bills of costs on every side of the Court (Except the Appellate Side) and in the Insolvency Court.
He .shall also tax all such attorney 's bills of costs as he may be directed to tax by a Judge 's order on consent of the parties, or on the application by any party chargeable with the bill.
" Under this rule, the Taxing Officer could tax the bills referred to in the second part of the rule by consent of parties only of if an application was made for taxation of the bill by a person chargeable with the bill.
Further, the second part of Rule 544 did not contain the expression "All other bills of costs" (emphasis supplied) which is to be found in the corresponding rule since the framing of the 1922 Rules.
The significant changes introduced in 1922 are directed at conferring on the Taxing Master the power to tax all bills of Attorneys, including those for work done in any other Court save the appellate side of the High Court.
It is argued on behalf of the appellants that assuming that the Taxing Master has jurisdiction to tax the bills in regard to the work done by the respondents in the City Civil Court, the bills cannot be taxed on the Original Side scale in view of the provisions contained ' in the Legal Practi tioners (Fees) Act, 21 of 1926.
We see no substance in this submission.
The statement of Objects and Reasons of the 1926 Act shows that the Act was passed in order to give effect to the recommendation of the Indian Bar Committee that in any case in which a legal practitioner has acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fees, Prior to the Passing of the Act of 1926, various High Courts in India had held almost consistently that Vakils could be.
sued for negli gence in the discharge of their professional duties and were entitled to sue for their fees but .Barristers could neither be sued for negligence nor could they sue for their fees.
The Indian Bar Committee recommended by paragraph 42 of its report that in practice the distinction relating to suing for negligence and being sued 359 for fees was not of great importance since suits by or against legal practitioners 'in respect .of fees and the conduct of cases were extremely rare; but it was necessary to provide that in any case in which a legal practitioner had 'acted ' or 'agreed to act ', he should be liable to be sued for negligence and be entitled to sue for his fees.
The long title of the Act of 1926 describes it as an Act "to define in certain cases the rights of legal practitioners to sue for their fees and their liabilities to be sued in respect of negligence in the discharge of their professional duties.
" The preamble of the Act is in the same terms.
Section 2(a) of the Act defines a 'legal practitioner ' to mean a legal practitioner as ' defined in section 3 of the according to which a 'legal practi tioner ' means "an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue Agent".
Section 3 of the Act of 1926 provides that any legal practitioner who acts or agrees to act for any person may by private agree ment settle with such person the terms of his engagement and the fee to be paid for his professional services.
Section 5 of the Act provides that no legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
Section 4 of the Act of 1926 which is the sheet anchor of Mr. Parekh 's argument reads thus: "4.
Right of legal practitioner to sue for fees.
Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner." ' In the first place, as explained above, the Act of 1926 was passed for an entirely different purpose with which we are not concerned in the present case.
Secondly, and that is more important, section 4 on which the appellants rely deals, as shown by its marginal note, with a limited ques tion viz., the right of a legal practitioner to sue for his fees.
It may be that since an Attorney is included within the meaning of the expression 'legal practitioner ', he will be governed by the provisions Contained in section 4 of the Act of 1926 if he brings a suit for the recovery of his fees.
But we are not concerned in this case to determine_ the scope and extent of an Attorney 's right to sue for his fees.
It must further be borne in mind that section 4, which iS in two parts, provides in the first place that a legal practitioner 'shall be entitled ' to institute and maintain a legal proceeding for the recovery of any fee due to him under an agreement.
This part of the section confers an additional entitlement on legal practitioners and cannot justifiably be construed as detracting from any other right which they may possess in regard to the taxation and re covery of their fees.
Section 4 provides by its second part that if there is no agreement between the legal 'practition er and his client in regard to the fees payable to him, he shall be entitled to institute and 360 maintain legal proceedings for the recovery of a fee comput ed in the manner provided therein.
This also is in the nature of an entitlement, the right recognised thereby being .the right to bring a suit to recover the fees in the absence of an agreement.
Any legal practitioner who wants to enforce the right which is specially created and con ferred by the Act of 1926 will have to comply with the conditions on which that right is conferred.
When a statute creates a special right, it can only be enforced in the manner and subject to the conditions prescribed by the statute.
Therefore, the fees for the recovery of which legal proceedings are brought under section 4 cannot be any.
larger than the fees computed in accordance with the law for the time being in force in regard to the ' computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.
But, as we have stated earlier, the provisions of the Act of 1926 are ,entirely beside the point.
They have no bearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in courts other than the High Court of Bombay and if so, on what scale.
The Bombay High Court in the judgment under appeal thought that there was an apparent conflict between section 4 of the Act of 1926 and the Original Side Rules relating to the taxation of an Attorney 's bill of costs.
We would like to make it clear that bearing in mind the true object and purpose for which the Act of 1926 was passed and the drive of section 4 thereof, there is no conflict, apparent or real, between any of the provisions of the Act of 1926 and the rules of taxation contained in the Original Side Rules of 1957.
In that view, it is unnecessary to resort to the principle of harmonious construction which the High Court alternatively relied upon for holding that the Taxing Master has the jurisdiction to tax the respondents ' bill in the instant case and on the Original Side scale.
Mr. Parekh then relied upon the rules framed by the Bombay High Court under section 224(1)(d) of the Government of India ACt, 1935 which corresponds roughly to article 227(3) of the Constitution and contended that the respondents ' bills must be taxed in accordance with those rules and not accord ing to the scale prescribed by the Original Side Rules.
This contention too is unacceptable.
The rules on which counsel relies were framed by the High Court "for fixing and regulating by taxation or otherwise the fees payable as Costs by any party in respect of the fees of his adversary 's Attorney appearing, acting and pleading upon all proceedings in the Bombay City Civil Court." These rules, according to their very terms, have nothing to do with the taxation of any Attorney 's bill of costs as between himself and his own client.
The rules govern the fees payable by way of costs by any party in the City Civil Court, in respect of the fees of his adversary 's Attorney.
That is to say, if an order of costs is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recov er from his adversary by way of professional charges in curred by him, the fees computed in accordance with the rules framed under section 224(1)(d) of the Government of India Act and not what he has in fact paid to his 361 Attorney.
Rule 9 on which 'counsel relies particularly, makes this position clear by providing: "9.
Where costs are awarded to a party in any proceeding ' the amount of the Attor ney 's fee to be taxed in the bill of costs is recoverable by such party if represented by an Attorney from the adversary and shall be computed in accordance with the rules above unless such fee has been settled under the provisions of section 3 of the Legal Practi tioner 's (Fees) Act, 1926, for a lesser amount in which case not more than such lesser amount shall be recoverable.
" The combined effect of this rule and section 4 of the Legal practitioners (Fees) Act, 1926 is that if an Attorney who has appeared or acted for his client in the City Civil Court sues his client for fees, he cannot recover in the suit anything more than is permissible under the rules framed by the High Court under section 224(1)(d) of the Government of India Act, 1933.
Neither those rules nor anything.
contained in the Act of 1926 is calculated to affect the Attorney 's right to have his bill taxed by the Taxing Master on the Original Side scale, for work done by the Attorney in the City Civil Court.
The Bombay City Civil Court Act, 69 of 1948, provides by section 18(1) that all suits and proceedings cognizable by the City Civil Court and ,pending in the High Court, in which issues have not been settled or evidence has not been re corded shall be transferred to the City Civil Court.
By section 18(2), costs incurred in the High Court till the date of the transfer of the suit are to be assessed by the City Civil Court in such manner as the State Government may after consultation with the High Court determine by rules.
Mr. Parekh.
drew our attention to rule 8 framed by the Government of Bombay under section 18(2) but we do not see its relevance on the issue under consideration in the instant case.
That rule shows that even as regards the fees of Attorneys, the Registrar of the City Civil Court is given the power to tax and allow all such costs and out of pocket expenses as shall have been properly incurred by an Attorney up to the date of the transfer of the suit.
The rule further provides that after the date of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are commensurate with the work done by the Advocate having regard to the scale of fees sanctioned for the Advocate in the City Civil Court by the High Court.
Rule 2, being a rule framed under section 18(2) of the Act of 1948, governs transferred, suits only and it expressly authorises the Registrar to tax the Attorney 's bill for the work done in such suits both before and after the transfer of the suit from the High Court to the City Civil Court.
There is no corresponding rule which can apply,to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948 came into force and in the absence of such rule, the rules framed under section 18(2) cannot 'support the appellants ' contention.
Mr. Parekh also drew our atten tion to the "Rules of the Bombay City Civil Court, 1948" framed by the Bombay High Court under section 224 of the Govern ment of India Act, 1935 but we see nothing 362 in those rules either which can assist his contention re garding the power of the Taxing Master to tax an Attorney 's bill as between himself and his client.
While we are on this aspect of the matter it would be useful to refer to the Supreme Court Rules, 1966 and the Bombay High Court Appellate Side Rules, 1960.
The Supreme Court ' Rules contain elaborate provisions in Order XLI and XLII thereof regarding costs of proceedings and taxation of costs.
Rule 13 of Order XLII provides that except as other wise provided in the rules or by any law for the time being in force, the fees set out in the Second and Fourth Sched ules to the Rules may be allowed to Advocates and officers of the Court respectively.
Rules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation.
The Second Schedule contains detailed provisions under which fees are payable to Advocates.
for various types of profes sional services rendered by them.
Similarly, Chapter 14 of the Appellate Side Rules of the Bombay High Court contains various rules for computing the fees which an Advocate is entitled to charge his own client.
Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 (see The Annual Practice 1965, p. 1998/300).
Mr. Natman who appears on behalf ' of the Incorporated Law Society, Bombay, drew our attention to rule 29 of the last mentioned rules under which a Solicitor 's bill can be taxed as between himself and his client.
These provisions are on a par with the rules of taxation of the Original Side of the Bombay High, Court.
The important point to be noted is that the Rules of the City Civil Court do not, except in regard to suits transferred from the High Court, contain any provi sion under which an Attorney can have, his bill taxed as between himself and his client.
Perhaps there is good reason for this because though under section 224(1)(d) of the Government of India Act, 1935 and article 227(3) of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has not been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter.
The High Court did exercise its powers under section 224(1)(d) in relation to the City Civil Court but did not in the rules framed in the exercise of that power provide for taxation of an Attorney 's bill of costs as between him and his client.
It is not too much to suppose that the High Court did not want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfac torily.
Mr. Parekh sought to derive some sustenance to his argument from a decision of the Calcutta High Court in Messrs Sander sons & Morgans vs Mohanlal Lalluchand Shah(1) but we find that the question which arose for decision therein was entirely different.
The appellants therein, a firm of Solicitors, submitted to the respondents a bill of costs for the work done by them for the respondents on the (1) A.I.R. 363 Original Side of the Calcutta High Court.
The respondents challenged the bill by a Chamber Summons, which the appel lants resisted on the ground that there was a private agree ment between the parties to pay a particular amount by way of fees and therefore the bill was not liable to be taxed under the Original Side Rules.
On a cosideration of the Original Side Rules of the Calcutta High Court, Particularly rules 4 and 74 of Chapter 36, the High Court came to the conclusion that the solicitors were bound to have their bills taxed according to the Original Side scale, agreement or no agreement.
We are concerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules.
We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of.
course ', .my principle of general application is laid down.
We have already mentioned that i.n Messrs Pereira Fa zalbhoy & Co. Mody J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court.
For the various reasons mentioned above we endorse that view.
Before concluding, we ought to refer to a rather anxious plea made by Mr. Parekh.
which involves ethical considera tions.
Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules.
We find ourselves unable to share this concern.
If anything, Solicitors are subject to the watchful supervision of the High Court wherever they may render professional services.
The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners.
The object on the contrary is to ensure that Attorneys shall always be subject.
to the juris diction of the High.
Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court.
The only exception is made by rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees 'as between an Advocate and his client.
In fact, we are unable to see why a power similar to the power of taxation of a. bill of costs between an Advocate and his.
client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court.
Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present.
In this very case, a. bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850/ only.
If there were no machin ery for taxing the bill, the appellants might perhaps have got off with the demand.
We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master ' must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court.
A judi cious exercise of 364 disecretion postulates elimination of unfair play, particu larly where one party to a transaction is in a position to dominate the will of the other.
The client must receive.the protection of the Court and its officers, whenever neces sary.
For these reasons we confirm the judgment of the High Court and dismiss the appeal.
There will however be no order as to costs.
[/INST]The appellants and respondents Nos. 3 to 37 herein, were allottees of houses in Chandigarh constructed by the State Government for low paid industrial workers under the Industrial Housing Scheme subsidised by the Central Govern ment.
The Labour Inspector, Union Territory, Chandigarh gave them notices in terms of the proviso to, rule 4(3) of the Punjab Industrial Housing Rules, 1956, as amended vide Notification dated November 7, 1972, to.
show cause why their allotments should not be cancelled.
The income of each of them exceeded Rs. 350/ per mensem, which disenti tled them to retain their allotments.
The appellants and the said respondents filed a joint petition in the High Court for a writ to quash the amendment to rule 4, and to restrain the Government from cancelling their allotments and evicting them.
The writ petition was dismissed.
The appel lants contended firstly, that rule 4(3) was ultra vires the Punjab Industrial Housing Act, 1956 as it took out industri al workers with income exceeding Rs. 350/ p.m. from the scope of section 2(e) of the Act which defines industrial workers; and secondly, that the authority competent to make rules u/s 24 of the Act cannot frame rules having retrospec tive effect, and as the amended rule 4(3) operates retro spectively it is invalid Dismissing the appeal by special leave, the Court, HELD: (1) The allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it under section 24 of the Act.
Section 24 specifically empowers the State Government to make rules to provide inter alia for the manner of allotment of accom modation and conditions relating to its occupation.
The impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24, was validly made, and was not ultra vires.
[331 G H, 331 (a) C] (2) Section 7 of the Act embodies a deeming provision and gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act, but also if being an allottee, he ceases to fulfil any of the prescribed conditions then in force, including the one relating to the limit of his income, and thereby becomes amenable to action under section 9(2) of the Act.
[331(a) A B] (3) The proviso to rule 4(3) clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/ per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/ per mensem but on the expiry of one month 's notice in writing of the can cellation.
The rule is not intended to operate retrospec tively on industrial workers who had been allotted and were in occupation of industrial houses immediately before, 328 the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972.
[331(a) E F] The Court observed The scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government could legiti mately evolve the method which it did, to disentitle indus trial workers whose monthly income was relatively large, to retain the houses.
[331 (a) C D]
</s>
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<s>[INST] Summarize the judgementAppeal No. 39 of 1955.
Appeal from the judgment and decree dated August 28, 1953, of the Calcutta High Court in Appeal from Original Decree No. 97 of 1950 arising out of the judgment and decree dated April 27, 1950, of the Court of Second Sub Judge of Zillah Hooghly in Rent Suit No. 3 of 1949.
B. Bagchi and P. K. Chosh, for the appellant.
N. C. Chatterjee and D. N. Mukherjee, for the respondents.
March 24.
The following Judgment of the Court Was delivered by SINHA J.
The main controversy in this appeal on a certificate granted by the High Court of Calcutta, against the concurrent decisions of the courts below, centers round the true interpretation and effect of sections 15 and 16 of the Bengal Tenancy Act Act VIII of 1885 (hereinafter referred to as the Act).
The courts below have substantially decreed the plaintiff 's suit for arrears of rent in respect of a se patni tenure.
Hence, the appeal by the defendant.
The plaintiffs ancestor, Nirmal Chandra Benerjee, was a durpatnidar under the patnidar in respect of the tenure in question.
He died leaving him surviving, his three sons Satya Ranjan, Satya Jiban and Satya Kiron who became the durpatindars in respect of the tenure by succession, and there is no dispute that they were so mutated in the superior landlord 's office.
There was a partition suit between them in the court of the 228 subordinate judge at Alipur, being Title Suit No. 128 of 1946.
During the pendency of that suit, Promode Kumar Banerjee was appointed Receiver of the properties under partition.
Satya Jiban died during the pendency of the partition suit.
The exact date of his death does not appear in the record.
His heirs are: his widow Tusharika Debi and his two sons, Uptal Kumar Banerjee who is of unsound mind, and Ujjal Kumar Banerjee, a minor.
The Receiver aforesaid, instituted the suit out of which this appeal arises, for arrears of rent, against the first defendant, now appellant, in respect of the years 1352 to 1355 B. section He put the total claim inclusive of interest, at Rs. 40,000 and odd, which was subsequently reduced to Rs. 27,000 and odd.
It is not necessary to go into the details of the claim, because the amount decreed is no more in controversy.
To the suit for rent, being Rent Suit No. 3 of 1949, in the court of of Second Subordinate Judge, Hooghly, the heirs aforesaid of Satya Jiban were impleaded as proforma defendants Nos. 2, 2(a) and 2(b), and so were Satya Kiran and Satya Ranjan as defendants 3 and 4, respectively.
During the pendency of the rent suit, the partition suit was compromised, with the result that the durpatni tenure in question was allotted to Satya Jiban 's branch of the family.
Hence, the plaint was amended by an order of the court, dated July 25, 1949, by substituting the aforesaid heirs of Satya, Jiban as the plaintiffs in the place of the Receiver aforesaid, who was the original plaintiff and who was discharged from the record.
The suit was contested on a number of grounds, but it is now necessary only to refer to the plea in bar of the suit, namely, that the plaintiffs substituted as aforesaid, and by transposition from the category of proforma defendants to that of plaintiffs, were not entitled to sue for rent on the ground that they had not got themselves mutated in the place of their predecessors in title in the landlord 's records and that, therefore, this suit was barred under section 16 of the Act.
It is no more necessary to set out the facts bearing on the devolution of title to the property in question, 229 because that was not a controversy raised in the High Court, and the arguments in this Court were, therefore, confined to the technical plea aforesaid.
After hearing the parties, the learned trial judge decreed the suit for Rs. 25,000 and odd.
The first defendant preferred an appeal to the Calcutta High Court, and a Divisional Bench of that Court, after hearing the parties, directed a limited remand to the trial court, for taking additional evidence in proof of certain documents filed by the plaintiffs but not properly proved at the original trial.
The trial court was also directed to submit its findings on the question of the right of the plaintiffs to maintain the suit in view of the provisions of sections 15 and 16 of the Act.
After remand, the documents on proof were again, marked as exhibits I and 2, and the finding was returned by the trial court in due course.
After the receipt of the finding, the High Court heard the appeal once again and dismissed it with costs.
The appellant moved the High Court and obtained the necessary certificate.
Hence this appeal.
In this Court, it was argued on behalf of the appellant that the provisions of section 15 are mandatory; that those provisions not having been complied with, the bar imposed by section 16, operates against the plaintiffs, with the result that they are not entitled to recover the arrears of rent by suit.
Sections 15 and 16 are in these terms: " 15.
When a succession to a permanent tenure takes place, the person succeeding shall give notice of the succession to the landlord or his common agent, if any, in the prescribed form within six months from the date of succession, in addition to or substitution of any other mode of service, in the manner referred to in sub section (3) of section 12: Provided that where, at the instance of the person succeeding, mutation is made in the rent roll of the landlord within six months of the succession, the person succeeding shall not be required to give notice under this section." " 16.
A person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit or other proceeding any rent payable to him as 230 the holder of the tenure, until the duties imposed upon him by section 15 have been performed.
" It is common ground that the notice contemplated by section 15, was not given, but it was contended on behalf of the plaintiff respondents that the proviso to that section had been complied with inasmuch as evidence had been adduced by the plaintiffs and accepted by the courts below, that the superior landlords accepted rents from the plaintiffs and granted them rent receipts in respect of the tenure in question, after ordering mutation of their names in the rent ,roll.
In order to bring the case within the proviso to section 15, quoted above, the plaintiffs served a requisition on the landlords (I) Maharajadhiraj of Burdwan, and (2) Sri Ramlal Bandopadhyaya, to produce all papers in respect of mutation of names regarding the tenure in question.
Those documents were not produced, but the plaintiffs examined P. W. 2 an employee of the Burdwan Raj and P. W. 3 their own employee to prove the necessary mutation.
P. W. 2 deposed that the plaintiffs paid Rs. 101 as fee for mutation of their names in the office of the Maharajadhiraj of Burdwan and that they were mutated in respect of the 8 annas ' interest.
P. W. 3, similarly, proves mutation in the office of Ramlal Babu, in respect of the other 8 annas ' share.
In pursuance of the mutation, rent was paid and accepted by the landlords.
The necessary order of mutation and the rent receipt exhibits 2 and respectively were produced and placed on record after being duly proved Nothing has been brought out in the cross examination of these two witnesses to detract from the value of their evidence.
Naturally.
therefore.
the courts below had no difficulty in accepting their evidence corroborated by those pieces of documentary evidence.
But it was contended on behalf of the appellant that section 15 requires proof of mutation in the rent roll of the landlord, and the rent roll or its certified copy, should have been adduced in evidence, and in the absence of the primary evidence of mutation contained in the rent roll the plaintiffs have failed to prove the requisite mutation.
In our opinion, there is no substance in this contention.
The landlords rent roll 231 was not in the custody or control of the plaintiffs.
They served requisition on their landlords to produce those documents.
As those documents were not produced by the parties who would ordinarily be in possession of their rent rolls, the plaintiffs had no option but to adduce secondary evidence of the mutation, namely, the order sanctioning mutation and the payment of rent to the superior landlord, in pursuance of the sanction of mutation.
Like any other disputed fact, the factum of mutation in the landlords rent roll can be proved by the production of the original rent roll or by its certified copy, if available, and failing those, by other secondary proof of mutation.
In the circumstances, we are inclined to hold that in this case, the courts below were justified in coming to the conclusion that there was the necessary mutation of the plaintiffs in the landlords ' rent roll.
It was next contended that there is no proof that the mutation, even if made, had been made " within six months of the succession ".
It is true that the date of the death of Satya Jiban, plaintiffs predecessor in title, is not known, if that is the point of time with reference to which the six months ' period has to be calculated.
If the starting point of time is the date of the allotment of the tenure in question to the plaintiffs ' share as a result of the partition, we know that June 20, 1949, is the date of the compromise, as appears from the list of dates supplied by the counsel for the appellant.
The rent receipt, exhibit 1, is dated January 4, 1950, and the order of mutation passed by the Burdwan Raj, is dated January 20, 1950.
Apparently, therefore, the mutation must have been effected within six months from the date of the compromise, as a result of which the entire tenure was allotted to the plaintiffs ' share.
If was not argued be fore us that this was not a case of succession, as contemplated by section 15, namely, the death of the last holder on the happening of which event, the succession to the tenure opened in favour of the plaintiffs.
Satya Jiban had only one third share in the entire tenure by inheritance from his father.
The other two thirds shares had been inherited by his two brothers aforesaid.
Hence, strictly speaking, succession to only 232 the one third share of Satya Jiban, could open on his death.
But as this aspect of the case was not canvassed before us, we need not express any opinion on it.
As already indicated, the date of the death of Satya Jiban not having been brought on record and if the six months ' period has to be counted from that date, it has got to be assumed in favour of the appellant that the mutation even if effected as found by the courts below, was not done within the prescribed time.
It may also be mentioned that it was not argued before us that the rent suit having originally been filed by the Receiver pendente lite, who represented the entire 16 annas interest in the tenure, the suit had been properly instituted, and no question under sections 15 and 16 of the Act, would, therefore, arise if any devolution of interest took place during the pendency of the suit.
For the purpose of determining the present controversy, we proceed on the assumption that the mutation had not been made within six months as prescribed by section 15, and that this defect affected the entire interest in the tenure in spite of the fact that the two thirds interest which originally belonged to Satya Jiban 's brothers, came to the plaintiffs as a result of the compromise in the partition suit.
Section 16 as it stands after the amendment by the Bengal Act IV of 1928, does not impose an absolute bar on the recovery by suit of the arrears of rent.
The bar is there only " until the duties imposed upon him (that is, the plaintiffs) by section 15, have been performed.
" Now, section 16 does not speak of any time limit.
It only speaks of the bar to the recovery of the arrears until the performance by the landlord of the duty of giving notice of the succession or getting mutation made on the succession.
It was argued on behalf of the appellant that the performance of the duty aforesaid is inextricably bound up with the period of six months, and that the performance of the duty beyond that period, is no performance at all in the eye of law.
We are not impressed by this argument, and there are several very good reasons for holding to the contrary.
The provisions of section 15 are meant not only for the benefit of the landlord or of the inferior tenant, but of the intermediate landlords also, that is to say, the 233 provision for notice, or in the alternative, for mutation .of names in the landlord 's rent roll, is meant to protect the interest of the superior landlord in that it ensures payment of his dues by the intermediate landlord before the latter can realise the same from his tenant, in this case, the se pataidar.
Those provisions also ensure that the rightful persons entitled to the durpatni interest, get themselves mutated in the superior landlord 's office, so that the inferior tenants may know who their new landlords are as a result of succession to their old landlords.
The legislature,, by fixing the limit of six months, intended to indicate that the notice of the mutation should be effected within six months, that is to say, within a reasonable time from the date of the devolution of interest, even as there are similar provisions in respect of the mutation of proprietors in the Collectorate for the purpose of regular realization of public demands.
But the legislature did not intend to make it mandatory in the sense that failing to observe the time limit, the landlord completely deprives himself of his right to receive rent from his tenant, even though otherwise due.
That is the reason why, in section 16, there is no indication of time limit.
On the other hand, there is an indication to the contrary in so far as the last clause quoted above, provides that the bar against the recovery by suit of any rent payable to the holder of the tenure, operates only until he performs the duties imposed upon him by section 15.
Section 16, being in the nature of a penal provision, has to be strictly limited to the words contained in the penal clause, and the penalty should not be extended by implication.
If the legislature had intended that the penalty should operate for all times if the duty were not performed within the time specified in section l5, the legislature would have used the words " within the prescribed time "; or some such words.
Instead of laying down such a time limit, the legislature has, by the amendment aforesaid by Act IV of 1928, made it clear that the bar operates only so long as the duty has not been performed.
No authority has been cited before us in support of the extreme proposition that 30 234 the failure on the part of the landlord to serve the requisite notice or to get the necessary mutation effected within six months, has . he effect of wiping out the landlord 's right to receive rent.
There may be rulings to the contrary, but this Court has to resolve the controversy on the language of the relevant sections of the statute, quoted above.
That language does not clearly indicate that the result contended for on behalf of the appellant, must necessarily ensue on his making a default to take those necessary steps within the time specified.
The language of the statute is not so peremptory in express terms or by necessary implication.
On the other hand, as already indicated the language easily lends itself to the construction that the prescribed time is not in the nature of a statutory bar to the exercise of the landlord 's right to recover rent.
in this connection, it has to be remembered that patni tenure and all other subordinate tenures under the patnidar, are permanent tenures.
Hence, the relationship of landlord and tenant, continues from generation to generation without there being any necessity of fresh attornment on the death of a durpatnidar or other grades of tenants in the process of sub infeudation.
The relationship is all the time there, only the landlord 's record has to be kept up to date by making the necessary substitution in the rent roll or by giving notice of the change in the succession to the landlord 's interest.
The legislature had to indicate a time by way of laying down the ordinary procedure for taking the steps indicated in section 15.
Six months ' period was deemed by the legislature to be a sufficiently long period to enable those steps being taken in the ordinary course of business.
But it is not difficult to imagine cases where such steps may not be feasible within the prescribed time.
For example, where the landlord dies leaving him surviving only an infant heir without a proper guardian to protect the infant 's interest, it may take a considerably longer period than six months to have a proper guardian appointed, if necessary, through court.
It may well be that the succession itself is disputed, and the controversy may take some years to get determined finally.
It cannot be reasonably 235 suggested that because the requisite notice or the mutation has not been given or effected within the prescribed period of six months, the landlord 's right to recovery` of rent, disappears.
That could not have been the intention of the legislature.
Again, it may easily be supposed that an honest tenant goes to his new landlord and pays him rent hand to hand, even though there has been no such step taken within the time as contemplated by section 15.
It cannot be said that such a payment of rent out of court, will not be recog nized by a court, if and when a controversy about such a payment were to arise.
In this way instances maybe multiplied where the provisions of section 15 of the Act, have not been strictly complied with, but still the receipt and payment of rent as between the patnidar and his tenant, have continued for a sufficiently long period, to prove what was required to be done under that section.
In our opinion, the inference is clear that the provision as regards the time limit, is not mandatory but only directory, and that transgression of that directory provision has the effect of only delaying the landlord 's remedy of recovery of arrears of rent by suit so long as the landlord has not done what he is required by law to do.
But that provision has not the effect of absolutely depriving the landlord of his remedy by suit for all times; he may recover through court, of course, subject to the law of limitation.
In our opinion, therefore, acceptance of the appellant 's arguments would be nothing more than " piling unreason upon technicality", which no, court of justice can countenance.
In view of these considerations, it must be held that there is no merit in this appeal which is, accordingly dismissed with costs.
Appeal dismissed.
[/INST]The terms and conditions of service including the rates of wages and other allied matters were decided and settled through mutual negotiations between the trade union represented by respondent No. 3, its General Secretary and respondent No. 4, President of the Employers Association.
Respondent Nos. 1 and 2 were workers and were members of the trade union.
Under an agreement entered into in October, 1973 an amount equivalent to 10 paise out of every rupee earned by the workers was deducted by the management towards the gratuity fund and transferred to the trade union for and on behalf of the workers.
Under another agreement a sum equivalent to 10 paise per rupee in the wages of the workers was paid by the management to the trade union towards accident benefit fund of which the workers were the beneficiaries.
The amounts so collected were entrusted to the petitioner, who was also the treasurer and custodian of these funds of the trade union.
The petitioner deposited the amounts received by him in his personal name in his bank account, and no account of these amounts was rendered by him to the members of the trade union.
He did not call any general body meeting and the members of the trade union could not ventilate their grievance regarding mismanagement of the funds.
In view of the aforesaid difficulty, 85 workers including Respon PG NO 258 PG NO 259 dent Nos. 1 and 2 and three others resigned from this trade union on January 13, 1976, and formed a separate trade union of their own and A registered the same under the .
Respondent Nos. 1 & 2 and three other persons instituted five suits in the Munsiff Court against the petitioner and respondent No. 3 for a decree directing the petitioner and respondent No. 3 to render an account of the amounts collected on their behalf from December, 1969 towards the accident benefit fund and from October, 1973 'towards the gratuity fund.
The petitioner who was the President and the Treasurer of the trade union resisted the suits and contended that since the plaintiffs had resigned and ceased to be members of the trade union they had no right to claim the refund of the sums due to them from out of the funds of the trade union and that the suits were not maintainable in the Civil Courts in view of the provisions of the and the .
All these suits were tried together and the Munsiff passed a preliminary decree against the petitioner and respondent No. 3 directing them to render an account of the amounts received by them, and further directed that each of the plaintiffs was entitled to get his proportionate share of the amount due to him from out of the total amount received by the petitioner and respondent No. 3.
The petitioner filed an appeal and the Additional Sub Judge found that the petitioner and respondent No. 3 had received from the management amounts on behalf of the workmen, but held that the plaintiffs were not entitled to any decree at the hands of the Civil Court since the suits were not maintainable in view of the provisions of the , l972 and the .
Second Appeals were filed in the High Court by respondent Nos. 1 & 2 and the High Court by a common judgment set aside the judgment and decree passed by the First Appellate Court and restored the judgment and decree passed by the Trial Court.
In the appeal by Special Leave to this Court it was contended that the provisions of the and the have debarred the filing of the suit, that respondent Nos. 1 & 2 could not claim the amount after resigning from the PG NO 260 membership of the trade union as the said amounts formed part of the general fund of the trade union, and that only on the dissolution of the trade union its funds could be distributed as per the rules of the trade union, and where the rules did not provide for the same, then the fund was liable to be distributed as per Rule 11(1) of the Central Trade Union Regulations, l938.
On the question: whether a member of the trade union is entitled to ask for an account and to claim refund of sums received by the trade union from the management for and on his behalf on his ceasing to be a member.
Dismissing the Special Leave Petition, HELD: 1.
The civil suits filed by the workers Respondent Nos. 1 & 2 were not barred under the provisions of the and the .
[264C] 2.
The amounts were received by the trade union from the employer concerned towards the gratuity and accident benefit to which the workers were entitled.
There was no scheme drawn up by the trade union regarding the payment of the gratuity amount and the accident benefit fund received on behalf of the workmen to the workmen concerned.
There was no agreement between the trade union and its members that the amount received towards gratuity and accident benefit should form part of funds of the trade union.
Any amount received for and on behalf of the members is liable to be refunded to the workmen concerned.
[264D] In the instant Case, the amount which had been received on behalf of Respondent Nos. 1 & 2 by the petitioner and Respondent No. 3 had, therefore, to be refunded to them on their resignation from the membership of the trade union.
[264E] 3.
There is no warrant for the view that only on the dissolution of the trade union its funds could be distributed as per the rules of the trade union and that where the rules did not provide for the same, the fund was liable to be distributed as per Rule 11(1) of the Central Trade Union Regulations 1938.
[264B] Balmer Lawrie Workers Union.
Bombay and Anr.
vs Balmer Lawrie and Co. Ltd. and Ors., [l985] 2 S.C.R. 492 distinguished.
PG NO 261
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<s>[INST] Summarize the judgementivil Appeal No. 1012 of 1987.
From the Judgment and Order dated 24.9.86 of the Gujarat High 415 Court in B.I .P.A.
No. 259 of 1986.
B. Datta, P.H. Parekh and Ms. Shalini Soni for the Appel lants.
T.U. Mehta and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellants are in the cadre of Talatiscum Mantries (Patwaries) in the Panchayat Service of the State of Gujarat.
In the year 1982/83 they were sent on deputation to the higher cadre of Circle Inspectors in the State service.
The question for consideration is whether in the facts of this case the appellants have a right to be absorbed in the cadre of Circle Inspectors.
The appellants were originally appointed as Talatis in the Revenue Department of the State of Gujarat.
Under the Gujarat Panchayat Act (hereinafter called 'the Act ') which came into force with effect from April 1, 1963, Panchayat Service was constituted and under the Act all the posts of Talatis along with the incumbents stood transferred to the Panchayat Service.
On that date there was a cadre of Circle Inspectors in the State Service which was bifurcated and 50% of the posts continued in the State Service and the remain ing 50% were transferred to the Panchayat Service.
The appellants were sent on deputation as Circle Inspectors in the State Cadre.
In January 1986 qualified officials became available for promotion to the post of Circle Inspectors in the State cadre and as such the appellants were reverted to their parent cadre of Talatis in the Panchayat service.
The appellants challenged the reversion by way of writ petition in the Gujarat High Court primarily on the ground that their options for absorption in the State Service were pending with the State Government which the State was bound to decide in their favour.
The High Court dismissed the writ petition holding that there was nothing on the record to show that the appellants gave any option to be absorbed in the State cadre.
The High Court also found that they, being on deputation, have no legal right to be absorbed in the State Service.
This appeal by special leave is against the judgment of the High Court.
We have heard learned counsel for the parties.
The State by a circular dated February 8, 1965 asked the Talatis among others to give their options as to whether they want to remain in the Panchayat Service or to be re allocated to the State Service.
Section 206A(2) of the Act is as under: 416 "Any officer or servant who is not reallocated under sub section (1) and continues in the Panchayat Service immediately before the expiry of the aforesaid period of four years, shall on such expiry, be deemed to be finally allocated to the Panchayat Service.
" It is clear from the above quoted provision that a Panchayat servant who is not reallocated within a period of four years from.
April 1, 1963 would be deemed to be finally allocated to the Panchayat Service.
The High Court has held that the appellants have not been able to show that they made any such options before March 31, 1967.
Even if it is assumed that the appellants gave some sort of option the same having not been accepted before March 31, 1967, the appellants stood finally allocated to the Panchayat Service.
The appellants being on deputation they could be revert ed to their parent cadre at any time and they do not get any right to be absorbed on the deputation post.
We see no infirmity in the judgment of the High Court and as such we dismiss the appeal.
There shall be no order as to costs.
T.N.A. Appeal dismissed.
[/INST]The lands in question are situate in lot Ahiyapur which is one of the villages forming part of the permanently settled estate of Burdwan and had been set apart as Chaukidari Chakaran lands to be held by the Chaukidars for rendering service in the village as watchmen.
At the time of the permanent settlement the income from these lands was not taken into account in fixing the jama payable on the estate.
Some time before the enactment of the Bengal Patni Taluks Regulation, 1819, the entire village of Ahiyapur was granted by the then 1310 Zamindar of Burdwan, to the predecessors in title of the defendants on Patni settlement.
In 1870 the Village Chaukidari Act came into force and acting under the provisions of that Act the Government put an end to the services of the Chaukidars resumed the lands and imposed an assessment thereon, and, subject to it, transferred the lands to the Zamindar.
On June 3, 899, the Zamindar granted the suit lands on Patni to the predecessors in title of the defendants who were the then holders of the village in Patni.
In proceedings taken by the Zamindar under the provisions of the Bengal Patni Taluks Regulation, 1819, the suit lands were brought to sale for arrears of rent and purchased by him.
On February I3, 1941, the Zamindar sold the lands to the appellant who sued to recover possession thereof from the defendants.
The defendants resisted the suit on the ground, inter alia, that the effect of the grant of the Chaukidari Chakaran lands on June 3, 1899, was to make them part and parcel of the Patni settlement of the village of Ahiyapur and that, in consequence, the sale of those lands, apart from the village of Ahiyapur, was bad as being a sale of a portion of the Patni.
Held, that when the Zamindar made a grant of the Chaukidari Chakaran lands which formed part of a village which had previously been settled in Patni, it was open to the parties to agree that those lands should form a new and distinct Patni and the result of such an agreement would be that while the grantee would hold those lands in Patni right, that is to say, that the tenure would be permanent, heritable and alienable, so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there was a default in the payment thereof were concerned, the new grant would be a distinct Patni, independent of the original Patni.
Held, further, that construing the grant dated June 3, 899, as a whole, the intention of the parties as expressed therein was that the Chaukidari Chakaran lands were to be treated as a distinct Patni and that, therefore, the sale of the lands for arrears of rent was valid.
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<s>[INST] Summarize the judgementCivil Appeal No. 8454 (NL) Of 1983.
From the Judgment and order dated the 8th August, 1980 of the Madhya Pradesh High Court Bench at Gwalior in Civil Miscellaneous Petition No. 127 of 1972.
H.K. Puri, for the Appellant.
A.K. Sanghi for the Respondent.
J. This is an appeal, by special leave, against the Judgment dated 8th August, 1980, by the High Court of Madhya Pradesh at Jabalpur in Civil Miscellaneous Petition No. 127 of l972.
The appellant is a trade union registered under the Trade Union Act.
It represents employees in the Chambal Hydel Irrigation Scheme under the Department of Chambal Project of Government of Madhya Pradesh in Gwalior Division.
The union raised three demands and served notices of these demands on the Deputy Chief Engineer, Major Project, Chambal, Bhopal.
The demands were: (1) Chambal allowance; (2) Dearness allowance equal to that of the Central Government employees; and (3) Wages for the 1022 period of strike lasting 20 days in the year 1966.
Copies of these notices were sent to the Assistant Labour Commissioner, Indore and the Secretary, Government of Madhya Pradesh.
The Deputy Chief Engineer did not respond to the demands.
There upon, the Assistant Labour Commissioner, Gwalior, at the instance of the union tried for a settlement, but did not succeed.
He sent a report under Section 12(4) of the Industrial Disputes Act.
The State Government, the first respondent in the appeal refused to refer the matter to the concerned Tribunal by its order dated 15.3.1969.
The appellant took the matter before the High Court by filing Miscellaneous petition No 29/69 for a mandamus to the State Government to refer the dispute for adjudication.
The High Court allowed the writ petition.
quashed the order of the State Government dated 15th March, 1969, and directed it to consider the question whether a reference was necessary or not.
When the matter went back to the Government, the Government took the stand that the provisions of the Industrial Disputes Act were not applicable to the workmen in the Chambal Hydel Irrigation Scheme since the Scheme was not an Industry and hence again refused to refer the dispute to the Tribunal.
The appellant pursued the matter further by filing miscellaneous petition No. 45 of 1970 before the High Court.
The High Court allowed the petition and directed the Government to take suitable action under Section 12(5 of the Act.
The Government challenged this decision before this Court by filing S.L.P.No.
933 of 1972, without success.
The matter, therefore, went back to the Government again. 'By its order dated 13.1.1972, the State Government referred only one question to the Tribunal and that related to the wages for the strike period but declined to refer the other two questions.
The reason given for this was: (1) that the Government was not in a position to bear the additional burden; and (2) that grant of the special allowance claimed would invite similar demands by other employees which would affect the entire administration.
Miscellaneous Petition No. 127 of 1972 was, therefore, filed for a direction to the State to refer the other two demands also.
In the meanwhile, this Court as per its decision dated July 20, 1978, bad confirmed the decision of the High Court that Chambal Project was an Industry within the meaning of the Industrial Disputes Act.
After this decision was rendered by this Court, the Government reviewed the matter and passed an order on 3.5.1979 giving additional reasons for refusing to refer the dispute for adjudication.
The reasons stated were as under: 1023 "(1) That the State Government was not in a position A to pay dearness allowance equal to that of Central Government employees.
In the present situation the State Government would not pay dearness allowance equal to that of Central Government employees to any particular department.
the question of such payment to the petitioners, therefore, does not arise.
B (2) The work charged employees were already given a consolidated pay.
Therefore, there was no justification for paying such employees the Chambal allowance.
The rules regulating the service conditions of the work charged employees of the Chambal division do not provide for payment of Chambal allowance to them. ' ' 3.
Before the High Court, it was contended by the appellant that the State Government had by refusing to refer the dispute to the Tribunal giving the above reasons taken upon itself the power to decide the dispute and had usurped the powers of the Tribunal.
It was further contended that the question raised related to the conditions of service of the employees and was, therefore, a matter primarily to be decided by the Tribunal The High Court repelled the contention and held as follows: "It is now 12 years that the matter has been pending.
But it would appear from the history of the case that the delay has been mostly due to the fact that the case was pending before various Courts.
The Government has not materially changed its stand.
As regards Chambal allowance, they were, from the very inception, taking the stand P that the work charged employees of the Project were given a consolidated salary and the service conditions did not warrant payment of extra allowance.
Now the rules regulating service conditions of the work charged employees of the project did not contain the provision for payment of Chambal allowance to them.
The Government was of the opinion that prima facie no case arises, particularly, when the extra benefit was already being granted to them.
The Government undoubtedly could no decide the matter finally, but they could certainly consider whether a prima facie case for reference has been made out on merits.
If no case is made out, it would be open to the Government to refuse 1024 to refer such a question and it could not be said that the Government was usurping the functions of the Tribunal and deciding the case finally.
In our opinion, the State Government 's order could not be said to be punitive and it takes into account the entitlement of the Chambal employees for the Chambal allowance.
As regards the other question, the State Government are on a firmer ground.
Since the Government is not paying dearness allowance equal to that of the Central Government employees to the employees in any other department in the State, there is no reason to discriminate and pay the same to the Chambal employees.
This is what the State Government have stated and we think that if the allowance at the rate payable to the Central Government employees is not paid to any one in the State, the Government was justified in holding that no prima facie case has been made out by the petitioner for referring this dispute to the Tribunal.
The State Government have also considered the question of expediency that by payment of such allowance to the Chambal employees alone, there would be dissatisfaction amongst the other employees of the State.
Both these reasons are germane and relevant.
The Government here was not deciding the case finally.
It has to decide question of expediency and whether a prima facie case has been made out. " In support of this conclusion the High Court relied upon the observations made by this Court in Bombay .
Union of Journalists P vs State of Bombay(l) and held that the Government was not precluded from making a prima facie examination of the merits of the dispute while considering whether a reference was necessary or not.
It was further held that "the two reasons given by the State Government fulfilled necessary test laid down by the orders of this Court earlier and the various Supreme Court decisions cited by the petitioners.
In the appeal before us, it was contended that the approach made by the High Court was erroneous and that the High Court had failed to properly delineate the jurisdiction of the Government under Section 10 read with Section 12(5) of the Industrial Disputes (1) ; 1025 Act.
It was contended before us that the question raised by the appellant had to be decided by the Tribunal on evidence to be adduced before it and it could not be decided by the Government on a prima facie examination of the facts of the case.
This submission was met with the plea that the Government had in appropriate cases at least a limited jurisdiction to consider on a prima facie examination of the merits of the demands, whether they merited a reference or not.
We have considered the rival contentions raised before us The High Court apparently has relied upon the following passage in Bombay Union of Journalists vs State of Bombay, (Supra) C ". .But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5) or not.
If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference.
Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. ' ' We find that the approach made by the High Court was wrong and the reliance on the above passage on the facts of this case, is misplaced and unsupportable.
This Court had made it clear in the same Judgment in the sentence preceding the passage quoted above that it was the province of the Industrial Tribunal to decide the disputed questions of fact. ".
Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. " Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made 1026 by workmen should be left to the Tribunal to decide.
Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended ' and then refer it for adjudication on merits.
The demarcated functions are (1) reference, (2) adjudication when a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an administrative authority namely the Appropriate Government.
In our opinion, the reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act.
What the State Government has done in this case is not a prima facie examination of the merits of the question involved.
To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion.
This virtually amounts to a final adjudication of the demand itself.
The demand can never be characterised as either preverse or frivolous.
The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand.
Same is the case with the conclusion arrived at by the High Court accepting the stand of the State Government that the employees were not entitled to the Chambal allowance as the same was included in the consolidated pay.
This question, in fact, relates to the conditions of service of the employees.
What exactly are the conditions of service of the employees and in what manner their conditions of service could be improved are matters which are the special preserve of the appropriate Tribunals to be decided in adjudicatory processes and are not ones to be decided by the Government on a prima facie examination of the demand.
This demand again can never be said to be either perverse or frivolous.
There may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference.
Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid dis 1027 putes.
To allow the Government to do so would be to render A Section 10 and Section 12(5) of the Industrial Disputes Act nugatory.
We have no hesitation to hold that in this case, the Government had exceeded its jurisdiction in refusing to refer the dispute to the Tribunal by making its own assessment unilaterally of the reasonableness of the demands on merits.
The High Court erred in accepting the plea of the Government that refusal to refer the demands in this case was justified.
The demands raised in this case have necessarily to be decided by the appropriate Tribunal on merits.
In the result, we set aside the Judgment of the High Court, allow this appeal and direct the State Government to refer all the questions raised by the appellant to the appropriate Tribunal.
The appeal is allowed with costs to the appellant quantified at Rs.2,500 n S.R. Appeal allowed.
[/INST]The appellant is a trade union registered under the Trade Unions Act.
It represents employees in the Chambal Project of Government of Madhya Pradesh in Gwalior Division.
The union raised three demands, namely, (1) Chambal allowance; (2) Dearness allowance equal to that of the Central Government employees; and (3) Wages for the period of strike lasting 20 days in the year 1966 and served notices of these demands on the Deputy Chief Engineer, Major Project Chambal Since the attempts for settlement by the canciliation officer failed, a full report of the dispute under section 12 (4) of the Act was sent to the State Government which, by its order dated 15.
3. 1969, refused to refer the matter to the concerned Tribunal.
The appellant took the matter before the High Court by filing Miscellaneous Petition No 29169 for a mandamus to the State Government to refer the matter for adjudication.
The High Court allowed the writ petition, and directed the State Government to consider the question whether a reference was necessary or not.
The Government again refused to refer the dispute to the Tribunal, taking the stand that the provisions of the Industrial Disputes Act were not applicable to the workmen in the Chambal Scheme as it was not Industry '.
The appellant approached the High Court for the second time by filing Miscellaneous Petition No. 45 of 1970 and challenged the said orders.
The High Court allowed the petition and directed the Government to take suitable action under section 12 (5) of the Act.
The Government challenged the said decision before the Supreme Court by filing SLP No. 933 of 1972 without success.
Later, by its order dated 13.
1. 72, the State Government referred to the Tribunal only the third question of payment of wages for the strike period and declined to refer the other two questions for the reasons that (a) the Government was not in a position to bear the additional burden and (b) the grant of the special allowance claimed would invite similar demands by other employees which would affect the entire administration.
The appellant was perforced 1020 to approach the High Court, for the third time, by way of a miscellaneous Petition No. 127 of 1972 for a direction to the State to refer the other two demands also.
In the meanwhile, the Supreme Court by its decision dated July 20, 1978 confirmed the High Court 's order that Chambal Project was a 'industry ' within the meaning of the Act.
whereupon the Government reviewed the matter and passed an order on 3. 79 giving additional reasons for declining to refer the dispute for adjudication namely, (a) the State Government was not in a position and therefore cannot pay Central DA to any of its employees in any department and (b) the work charged employees who get a consolidated salary are not entitled to Chambal allowance under the rules.
The High Court, by its decision dated 8th August 1980 dismissed the petition holding that the reasons given by the Court are germane and relevant.
Hence the appeal by special leave.
Allowing the appeal, the Court, ^ HELD: 1.1 The reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act.
[1026C] 1.2 While conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide.
Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended" and then refer it for adjudication on merits.
The demarcated functions are (1) reference, (2) adjudication.
[1025H; 1026A] 1.3 When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an administrative authority namely the Appropriate Government.
What the State Government had done in this case is not a prima facie examination of the merits of the question involved.
To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion.
This virtually amounts to a final adjudication of the demand itself.
The demand can never be characterized as other perverse or frivolous.
The conclusion so arrived at robs the & employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand.
[1026B E] 1.4 What exactly are the conditions of service of the employees and in what manner their conditions of service could be improved are matters which are the special preserve of the appropriate Tribunals to be decided in adjudicatory processes and are not once to be decided by the Government on a prima facie examination of the demand.
The question whether the emp 1021 loyees were/were not entitled to the Chambal allowance as they are in A receipt of a consolidated pay relates to the conditions of service of the employees Further this demand also cannot be said to be either perverse or frivolous.
[1026F G] 1.5 However, there may be exceptional cases in which the State Government, may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference.
Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes.
To allow the Government to do so would be to render section 10 and section 12 (5) of the Industrial Disputes Act nugatory.
[1026G H; 1027A] C Bombay Union of Journalists vs State of Bombay ; , explained and followed.
</s>
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<s>[INST] Summarize the judgementminal Appeal No. 167 of 1968.
Appeal from the judgment and order dated January 18, 1968 of the Allahabad High Court in Criminal Revision No. 1482 of 1966.
O. P. Rana, for the appellant.
Bashir Ahmed and section Shaukat Hussain, for the respondent.
The Judgment of the Court was delivered by Dua J.
The State of U.P. has appealed to this Court on certificate of fitness granted by the Allahabad High Court from 495 that court 's order dated January 18, 1968, acquitting the respondent of an offence punishable under section 14 of the Foreigners Act (Act No. 31 of 1946).
This appeal was originally heard by us on January 11 & 14, 1971, when it was considered desirable to send for the original records of the case from the courts below and also to call for the Me relating to the inquiry held by the Central Government under section 9(2) of the (Act No. 57 of 1955) into the question of the acquisition of citizenship of Pakistan by the respondent.
On July 11, 1963, the respondent was arrested for 'over staying in India as a, foreigner and on March 6, 1965, he was charged by the City Magistrate, Varanasi, with the commission ,of an offence punishable under section 14 of the Foreigners Act (Act No. 31 of 1946).
The charge reads : "I, D. section Sharma, City Magistrate, Varanasi, hereby charge you Rahmatullah as follows : That you being a Pakistani Citizen entered into India on 1 4 55 on Pakistani Passport No. 283772 dated 15 3 55 and Indian visa No. 16326 Category C dated 22 3 55 and got your extension to stay in India up to 25 5 56 after which date you are overstaying in India illegally without any passport and visa : and thereby committed an offence punishable u/s 14 of Foreigners Act within my cognizance, and hereby I direct you to be tried on the said charge by me." According to the prosecution case against the respondent as put in the Trial Court, he was a Pakistani national and had on April 1, 1955, entered India on a Pakistani passport dated March 15, 1955, and an Indian Visa dated March 22, 1955, obtained by him as a Pakistani national, but even after the expiry of the permitted period he was overstaying in India without a valid passport or visa).
The original visa, it is not disputed, expired on June 21, 1955, but it was extended thrice, the last extension being valid only up to May 25, 1956.
Thereafter the respondent went underground and has since been residing in India illegally.
He was treated after several years and was arrested on July 11, 1963.
The respondent pleaded in defence that though he had entered India on a Pakistani passport he was not a Pakistani national.
On the contrary he claimed to be an Indian citizen and therefore rightfully living in India.
According to him he had been born in India of Indian parents in 1932 and was an Indian citizen under the Constitution.
496 During the pendency of the present criminal proceedings an inquiry was made by the Central Government under section 9(2) of the read with r. 30 of the Citizenship Rules, 1956, and by means of an order dated November 5, 1964, it was determined that the respondent had acquired citizenship of Pakistan after January 26, 1950, and before March 15, 1955.
March 15, 1955 was apparently fixed because on that date the respondent had secured his Pakistani passport.
In that inquiry the respondent was given full opportunity of adducing proof in support of his plea.
The respondent was informed of the determination of the Central Government on March 29, 1965 in the Trial Court.
The City Magistrate, Varanasi, trying the case came to the conclusion that the respondent had voluntarily gone to Pakistan and had stayed there for 8 or 9 months.
The fact that he had obtained a Pakistani passport was in the opinion of that court an indication of his intention to have gone to that country with the object of becoming a Pakistani national.
The argument that the determination in regard to the respondent 's citizenship was made by the Central Government after the commencement of the present proceedings was considered by the Trial Court to be irrelevant because the determination by the Central Government was immune from challenge and whether it was made before or after the framing of the charge was immaterial.
The respondent was held to be a Pakistani national and as it was not denied that he had entered India on a Pakistani passport and also that on the expiry of the period for which he had been permitted to stay in India including the extended period, he had stayed on in this country without obtaining valid permit, he was convicted of an offence under section 14 of the Foreigners Act.
He was sentenced to rigorous imprisonment for 18 months and to pay a fine of Rs. 200/ and in default of payment of fine to rigorous imprisonment for a further period of three months.
The Sessions Judge dismissed the respondent 's appeal holding that the charge had been framed against him several months after the determination by the Central Government that he was a Pakistani national.
According to that court the order of the Central Government was dated November 5, 1964, and it was communicated by the Sahayak Sachiv, U. P. to the Senior Superintendent of Police, Varanasi, on December 28, 1964.
On revision the High Court disagreed with the view of the courts below.
According to the High Court the respondent was not a foreigner when he entered India though he had obtained 497 a Pakistani passport.
Having not entered as a foreigner the respondent 's case was held to be outside para 7 of the Foreigners Order, 1948, made under section 3 of the Foreigners Act.
The High Court held the respondent to be a foreigner when he was prosecuted for an offence under section 14 of the Foreigners Act.
But in its opinion that fact could not attract para 7 of the Foreigners Order, 1948 made under section 3 of the Foreigners Act.
On this reasoning the respondent 's conviction was set aside and he was acquitted.
In this Court, to begin with, it was argued on behalf of the State that section 2(a) of the Foreigners Act defines a "foreigner" to mean a person who is not a citizen of India.
If, therefore, the respondent is not a citizen of India, then being a foreigner his prosecution and conviction under section 14 of the Foreigners Act was unassailable, contended Shri Rana.
The order of the High Court acquitting the respondent was, therefore, contrary to law, he added.
This submission is misconceived.
The definition of the word "foreigner" relied upon by the counsel was substituted for the earlier one by the Foreigners Law (Amendment Act 11 of 1957) with effect from January 19, 1957.
Quite clearly the new definition is of no assistance in determining the status of the respondent at the time of his entry into India in 1955.
The word "foreigner" according to the definition as in force in 1955 meant, a person who (i) is not a natural born British subject as defined in sub sections (1) and (2) of section 1 of the British Nationality and Status of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalization as a British subject under any Jaw for the time being in force in India, or (iii) is not a citizen of India.
The , having been published in the Gazette of India on December 30, 1955, was also not in force at the time when the respondent entered India.
We may, therefore, turn to the Constitution to see if the respondent was a citizen of India at the time of the commencement of the Constitution.
Clause (a) of Article 5 clearly covers the case of the respondent who was born in the territory of India, and had his domicile in this territory at the commencement of the Constitution.
Being a citizen of India at the commencement of the Constitution in 1950, unless he lost his citizenship under some law between the commencement of the Constitution and his entry into India in 1955, the respondent would continue to be an Indian citizen till such entry.
Even on behalf of the appellant no serious attempt was made to show that the respondent had lost his Indian citizenship in any other manner except on the basis of his having obtained a Pakistani passport and on the basis of the determination of the question of his citizenship by the Central Government on November 5, 1964.
Indeed after some faint argument the appellant 's learned counsel based his case exclusively on the determination 32 1 section C. India/71 498 by the Central Government, and in our opinion on the existing record rightly so.
According to his submission the determination made by the Central Government under section 9(2) of the is final and since the respondent has been held to have acquired citizenship of Pakistan before March 15, 1955, his entry into India after that date and his subsequent continued stay in this country after the expiry of the extended period on May 22, 1955, would amount to an offence punishable under section 14 of the Foreigners Act.
As will presently be shown the real question which arises for our decision lies in a short compass and the relevant facts essential for the decision are no longer in dispute.
When the respondent entered India on April 1, 1955, he was in possession of a Pakistani passport and a visa to which no objection was taken by the Indian authorities.
He did not enter India clandestinely, and he is not being tried for having entered India in violation of any law.
Indeed his visa was, admittedly extended by the appropriate authority up to May 22, 1965.
As he was clearly a citizen of India at the commencement of the Constitution and the question arose whether he had lost Indian citizenship thereafter, the Central Government had to determine under section 9 of the the question of the acquisition of Pakistan nationality by the respondent.
This Court in Government of Andhra Pradesh vs Syed Mohd. Khano after referring to its earlier decision in lzhar Ahmad Khan vs Union of India(1) made the following observation : "Indeed, it is clear that in the course of the judgement, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner.
It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has "acquired the citizenship of the foreign country" , but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question.
Therefore, there is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State (2) [1962] Supp.
3 section C. R. 235.
(1) [1962] Supp. 3 section C. R. 288.
499 and have lost in consequence the citizenship of this country, it is essential that question should be first considered by the Central Government.
In dealing with the question, the Central Government would undoubtedly be entitled to give effect to the impugned R. 3 in Sch.
III and deal with the matter in accordance with the other relevant Rules framed under the Act.
The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him." In that case an argument was raised on the authority of lzhar Ahmad Khan 's case(1) that as soon as a person acquired a passport from a foreign Government his citizenship of India automatically came to an end, but it was repelled.
in Shuja Ud Din vs The Union of India and Another(2) this pondent there was born in India in 1924 and had lived in this 'Country all along tiff about the end of 1954.
At the end of 1954 or the beginning of 1955 he went to Pakistan from where he returned on January 20, 1955 on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in this country upto April 1955.
He applied to the Central Government for extension of the time allowed by the visa, but there was no material to show what orders, if any, were made on it.
The respondent having stayed in this country beyond the time specified in the visa, on September 3, 1957 he was served with an order under section 3(2)(c) of the Foreigners Act, requiring him to leave India.
On his failure to comply with this order he was prosecuted under section 14 of the Foreigners Act.
His defence was that he was an Indian national.
The Magistrate trying him rejected his defence and convicted him holding that he had disowned Indian nationality by obtaining a Pakistan passport and that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner under section 8 of the Foreigners Act and that such a decision was final.
He was convicted by the Trial Court and the conviction was upheld by the Sessions Judge.
The High Court in revision set aside his conviction.
On appeal this Court held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respondent, an Indian national, had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the that decision could only be made by the prescribed authority.
The respondent in that case, according to this Court, had become an Indian citizen under article 5(a) of.
the Constitution when it (1) [1962] Supp.
3 section C. R. 233 (2) ; 500 came into force and there being no detention by the Central Government that he had lost his nationality thereafter.
the order of the High Court acquitting him was upheld.
in Shuja Ud Din vs The Union of India and Another (1) this Court speaking through Gajendragadkar, J. as he then was, said: "it is now well settled that the question as to whether a person who was a citizen of this country on January 26, 1950, has lost his citizenship thereafter, has to be determined under the provisions of section 9 of the (No. LVII of 1955).
There is also no doubt that this question has to be decided by the Central Government as provided by Rule 30 of the Rules framed under the in 1956.
The validity of section 9 as well as of Rule 30 has been up held by this Court in the case of Izhar Ahmad Khan and Ors.
vs Union of India and Ors.
It has also been held by this Court in The State of Madhya Pradesh vs Peer Mohd. and Anr.
Appeal No. 12 of 1961 decided on Sept. 28, 1962) that this question has to be determined by the Central Government before a person who was a citizen of India on January 26, 1950, could be deported on the ground that he has lost his citizenship rights thereafter under section 9 of the .
Unless the Central Government decides this question, such a person cannot be treated as a foreigner and cannot be deported from the territories of India.
" In Abdul Sattar Haji Ibrahim Patel vs The State of Gujarat(2), Gajendragadkar, C. J., speaking for a bench of five Judges approved the decisions in the cases of Izhar Ahmed Khan(3) and Syed Mohd. Khan(4), it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his citizenship of India and has acquired that of a foreign country.
That an inquiry under section 9 of the can only be held by the Central Government was again reaffirmed by this Court in Mohd. Ayub Khan vs Commissioner of Police, Madras (5).
In view of these decisions it seems to us to be obvious that till the Central Government determined the question of the respondent having acquired Pakistan nationality and had thereby (1) C. A. No. 294 of 1962 decided on Oct. 30, 1962.
(2) Cr.
A. No. 153 of 1961 decided on Feb. 17,1964.
(3) [1962] Supp.
3 section C. R.235.
(4) [1962] SUPP.
3 section C. R. 288.
(5) 501 lost Indian nationality, he could not be treated as a foreigner and no penal action could be taken against him on the basis of his status as a foreigner, being national of Pakistan.
It is not the appellant 's case before us that any directions under the law governing foreigners were given to the respondent after November 5, 1964, which were disobeyed entailing his prosecution, and indeed it is admitted that he was not even informed of the decision of the Central Government till March 29, 1965.
It is also noteworthy that at the time when the Central Government determined his nationality he was being tried in this country by the criminal court after having been arrested and bailed out, and he was not free to leave this country for proceeding to Pakistan.
In the background of these facts it appears to us that the wide charge as framed against him was misconceived and he could not be convicted of overstaying in this country at least till he was duly found to be a Pakistani national and to have ceased to be an Indian citizen.
The order of the Central Government is clearly final, and it has remained unchallenged by the respondent even after he was informed of this order on March 29, 1965.
We have seen the proceedings of the Central Government and we find that the respondent had been given full opportunity of putting forth his case.
The binding nature of that order was not, and indeed it could not be, questioned before us.
The determination by the Central Government in this case could not have the effect of retrospectively rendering a penal offence an act which was not so at the time of its commission.
The respondent even though held to be a Pakistani, and therefore a foreigner, before the charge was framed against him is entitled to the protection of our laws.
As a result of the foregoing discussion, the High Court was in our opinion right in setting aside the respondent 's conviction on the charge framed.
It will of course be open to the Central Government to take such suitable action against the respondent under the Foreigners Act or under any other provision of the law which may be applicable to him, for the purpose of either deporting him or otherwise dealing with him as is thought fit.
This appeal, however, must fail.
Y.P.S. Appeal dismissed.
[/INST]It is well settled that while Article 14 of the Constitution forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and, (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases; namely geographical, or according to objects or occupations or the like.
What is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration.
Further Article 14 condemn,,; discrimination not only by a substantive law but also by a law of procedure.
The Constitution does not assure unanimity of decisions or immunity from merely erroneous action, whether by the courts or the executive agencies of a State.
Section 30 of the Code of Criminal Procedure does not infringe the fundamental right guaranteed by Article 14 of the Constitution.
Chiranjit Lal Chowdhuri vs The Union of India ( ; , The State of Bombay vs F.N. Balsara ([1951] S.C.R. 682), The State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284), Kathi Raning Rawat vs The State of Saurashtra ([1952] S.C.R. 435), Lachmandas Kewalram Ahuja vs The State of Bombay ([1952] S.C.R. 710), Qasim Razvi vs The State of Hyderabad ([1953] S.C.R. 581), Habeeb Mohamad vs The State of Hyderabad ([1953] S.C.R. 661), The State of Punjab vs Ajaib Singh ([1953] S.C.R. 254), Yick Wo vs Peter Hopkins ([1886] ; 29 L. Ed. 220) and Snowden vs
Hughes ([1944] ; ; , referred to.
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<s>[INST] Summarize the judgementivil Appeal No. 2588 of 1966.
Appeal from the judgment and decree dated January 14, 1964 of the Patna High Court in First Appeal No. 572 of 1958.
D. Goburdhun and R. Goburdhun, for the appellants.
A. N. Sinha and P. K. Mukherjee, for respondent No. 1.
640 The Judgment of the Court was delivered by Mitter, J.
The only question involved in this appeal is, whether the direction of the High Court that the partition suit launched in 1943 should be allowed to proceed in view of the provisions of section 6 of the Bihar Land Reforms Act, 1950 which came into force on 25th September, 1950, is correct.
The suit had a chequered career.
It was instituted against a number of persons the main relief asked for being partition of four annas Milkiat interest in Touzi No. 702, Tappa Haveli, Pargana Maheshi, District Champaran, Bihar.
The Subordinate Judge of Motihari made a preliminary decree for partition declaring the first respondent 's share in the property as claimed by him.
The High Court in appeal modified the decree reducing the plaintiff 's share to Rs. 0 1 4 interest only.
In further appeal to these Court the trial court 's preliminary decree was upheld on 5th ,October 1953.
In the meanwhile the Bihar Land Reforms Act of 1950 effecting far reaching changes in the incidents of land tenure and land holdings had been passed.
The first appellant made an application to the trial court in June 1958 prayina that the proceedings for final decree be treated as having abated in view of the vesting of all estates in land in the State of Bihar.
This was accepted by the Subordinate Judge by an order dated July 12, 1958.
The High Court allowed the appeal with the direction above mentioned which the appellants now seek to have set.
aside.
The bone of contention between the parties is the extensive "bakasht ' lands in the aforesaid Mouza.
The appellants contend that under section 6 (1) of the Act all these lands vested in the State and came to be held by the persons in "khas possession" thereof as raiyats under the State.
To appreciate the plea it is necessary to make a brief reference to some of the provisions of the Act.
As is well known the object of the Act was to cause transference to the State of the interest of proprietors and tenure holders in land as also of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals and to provide for certain consequences following there from and connected therewith.
section 3 of the Act ,enabled the State Government to declare by notification that the estates or tenures of a proprietor or tenure holder specified therein 'would pass to and become vested in the State.
The consequences ,of such vesting are set forth in section 4.
Under cl.
(a) : "Such estate or tenure including the interests of the proprietor or tenure holder in any building or part of a building comprised in such estate or tenure and used 641 primarily as office or cutchery for the collection of rent of such estate or tenure, and his interest in trees, forests, fisheries, jalkars, sairati interest as also his interest in all sub soil including any rights in mines and minerals whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interest in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act.
" section 6 of the Act provides for such saving and the relevant portion thereof runs as follows "(1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including (a) (i) proprietor 's private lands let out under a lease for a term of years or under a lease from year to year. . . (ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under ,a lease, written or oral, for, a period of one year or less, referred to in section 43 of the Chota Nagpur Tenancy Act, 1908, (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and (c) lands used for agricultural or horticultural purposes forming ' the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof; shall. . . be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupying rights in respect of such lands subject to the payment of such fair and equit able rent as may be determined by the Collector in the prescribed manner.
642 The broad proposition which was advanced before the High Court and rejected by it and reiterated before us is that the consequence of section 6, was to put an end to the character of the possession of the bakasht lands to the malik by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof.
There is no dispute that bakasht lands fall under categories (b) and (c).
We are not here concerned with category (c) and have quoted it to appreciate some decisions relied on where there are references to that category.
This question has engaged the attention of the Patna High Court more than once and it would appear that the views expressed in different cases have not been uniform.
So far as the said High Court is concerned the point was settled by a decision of the Full Bench in Mahanth Sukhdeo Das.
vs Kashi Prasad Tewari and Shrideo Misra vs Ramsewak Singh(1).
The main questions before the Full Bench were whether on the vesting of an estate which was mortgaged at the material time the bakash lands therein which are deemed to be settled with the ex proprietor in khas possession would form substituted security for the purpose of the mortgage, and whether a co sharer proprietor not in actual possession of such lands had Any claim thereto on the basis of his constructive possession.
The High Court answered both the above in the affirmative.
One of the earliest cases in which this Court had to interpret section 6 of the Act was that of Surajnath Ahir vs Prithinath Singh (2 ) .
There the question which engaged the attention of this Court was whether the appellants who had originally gone into possession on the strength of a mortgage lost their right to continue in possession even if they claimed to be trespassers after the redemption of their mortgage by reason of the estate vesting in the State on the passing of the Act.
Although the case is not directly in point, it bears upon the identical provisions of law which have to be applied to the facts of the case before us.
The facts in that case were that the appellants had entered into possession of kasht lands of the mortgagors on the strength of a mortgage deed.
The mortgagors thereafter executed another mortgage with respect to their milkiat (proprietary) interest in favour of certain persons.
The plaintiff respondents bought the milkiat rights together with "kasht" lands from the mortgagors and entered into possession of the milkiat property and subsequently redeemed the mortgage deeds in 1943.
The appellants however did not make over possessions of the lands in dispute even after the redemption of the mortgage.
It was held by this Court that the respondents could not take advantage of section 6 (1) (c) of the Act as no mortgage subsisted on the date of vesting and the mere fact that the proprietor had a subsisting (1) I.L.R. 37 Patna 918.
(2) [1963] 3 S.C.R. 290 643 title to possession over certain land on the date of vesting could, ' not amount to that land being treated as under his "khas possession" for the purposes of the Act.
Referring to the definition of "Khas possession" in section 2(k) of the Act as meaning "the possession of such proprietor or tenure holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock".
it was held that in order that the respondents could take advantage of the provision of section 6 (1 ) (c) of the Act they had to, establish a subsisting mortgage on the date of vesting which was inclusive, of the land subject to their right of redemption.
On the question of possession of the lands it was observed "On the date of vesting, the appellants were not in possession as mortgagees.
The mortgages had been redeemed in 1943.
Thereafter, the possession of the appellants was not as mortgagees.
It may be as trespassers or in any other capacity.
The land in suit, therefore, did not come within cl.(c) of section 6 of the Act.
" Rejecting the construction put on the expression 'khas possession by the High Court in Brijnandan Singh vs Jamuna Prasad(1) it was said : " The mere fact that a proprietor has a subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas possession '.
" The Full Bench decision of the Patna High Court, came up for consideration by this Court in Ram Ran Bijai Singh vs Behari Singh alias Bagandha Singh(2).
There the appellants before this, Court were the plaintiffs who had filed a suit for a declaration that a certain plot of land was their zeraiti land and that the persons impleaded as the defendants 1st and 2nd parties had no right or title thereto and for recovery of possession of the said land by dispossessing them therefrom.
It was argued that in view of the concurrent findings of the courts below that the lands were the zeraiti lands of the plaintiffs they would not vest in the State because of the saving in section 6 of the Act and the appellant should be deemed to have been in khas possession of the land under section 6 (1) (c).
The respondents contended that it was not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed to remain in possession by asserting a title which was as much against the mortgagors as against the mortgagees.
Reference was made in the (1) A.I.P. 1958 Patna 580.
(2) (3) I.L.R.37Pat.
644 course of arguments to the Full Bench decision in Sukhdeo Das 's case(3) and it was submitted that a mortgagee continuing in possession of the mortgaged property after payment of the :mortgage amount must hold the same on behalf of the mortgagor and in trust for him.
Counsel further relied on certain observations in the judgment of the Full Bench in aid of his proposition and submitted on the basis thereof that even the possession of a trespasser who had not perfected his title by adverse possession for the requisite period of time under the Limitation Act should be considered as in khas possession of the true owner.
Turning down this submission it was observed by this Court (p. 378) : "We consider that this equation of the right to possession with 'khas possession ' is not justified by principle or authority.
Besides this is also inconsistent with the reasoning of the Full Bench by which constructive pos session is treated as within the concept of khas possession.
" The Court went on to add that "The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came to court." Noting the statement of the plaintiffs in their plaint that the mortgagees had fulfilled their obligations and the obstruction to possession was put forward only 'by persons who claimed occupancy rights this Court concluded that, in the circumstances of the case, it was not possible for the appellants to contend that these tenants (defendants 1st and 2nd parties) were in possession of the property on behalf of the mortgagor or by virtue of any right through the mortgagor.
The case is not therefore an authority for the proposition that a co sharer 's constructive possession is to be ignored under section 6 (1) (c) of the Act.
Counsel for the appellants also referred us to a recent decision of this Court in section P. Shah vs B. N. Singh(1) in aid of his contention that the true effect of section 6 of the Act was to create a new right ,of tenancy in favour of the person in khas possession and consequently even if the plaintiff in the partition suit had a right to ask for demarcation of his Rs. 0 4 0 share of the bakasht lands before the passing of the Land Reforms Act, he could not pursue his claim by a prayer that he be considered a tenant along with those who were in actual khas possession.
In our view the above decision is no authority for this broad proposition.
In that case the appellants who were mortgagees of an estate including bakasht lands and other lands filed a suit on (1) ; 64 5 their mortgage and tried to follow up the preliminary decree which was obtained before the Act came into force by a petition for passing a final decree.
One of the questions before this Court was whether the mortgage decree had become unexecutable in view of the provisions of the Act.
It was held that the net effect of sections 3, 4 and 6 was that although on the vesting of the, lands in the State a settlement was deemed to be effected with the person in khas possession in law, there were two different transactions and the deemed settlement was in effect a separate transaction creating new rights.
The Court came to the conclusion that the only remedy open to the decree holders wag that provided in Chapter IV of the Act i.e. a claim under section 14 before the Claims Officer for determining the amount of debt legally and justly payable to each creditor in respect of his claim.
The Court was there dealing with the rights of the mortgage creditors after the Act had come into force.
Chapter IV of the Act made special provisions for dealing with the rights of secured creditors and section 4 (1) (d) expressly provided for the abatement of all suits and proceedings for the recovery of any money through proceedings which might be pending on the date of vesting arising out of securities created by mortgage or a charge on an estate or tenure.
Here however we are not dealing with the claims of mortgagees under Chapter IV.
In this case we have to consider whether the appellants had laid a claim which a co sharer could not put forward except by pleading ouster or any other independent ground.
Even if they were in actual khas possession within the meaning of section 2 (k) of the Act it must be held that the plaintiff who was a co sharer was in constructive possession through the appellants as "under the law possession of one co sharer is possession of all the co sharers".
We see no reason to hold that the observations of this Court to the above effect in P. L. Reddy vs L. L. Reddy(1) are not applicable to the case before us.
The appellants do not claim to be trespassers on the property neither did they claim any title to the lands adversely to the plaintiff respondent.
The deeming provision of section 6 must therefore enure for the benefit of all who in the eye of law would be regarded as in actual possession.
It follows that the plaintiff had not lost his share in the bakasht lands and had a right to them though not as tenure holder or proprietor but certainly as a raiyat under the provisions of the Land Reforms Act. ' The appeal must therefore be dismissed with costs.
V.P.S. Appeal dismissed.
(1) ; , 202.
[/INST]Serious allegations of corruption and malpractices had been made against the respondent, a member of the Indian Police Service, serving in the State of Bihar.
Inquiries made by the State Government revealed that there was a prima facie case made out against him.
He was suspended by an order which stated that disciplinary proceedings were contemplated against the respondent.
On the question whether the suspension of a member of the service can only be ordered after definite charges have been communicated to him in terms of r. 5(2) of the All India Services (Discipline and Appeal) Rules, 1955, or whether the Government is entitled to place him under suspension even before that stage has been reached after a preliminary investigation, HELD : (1) The fact that in other rules of service there is specific provision for an order of suspension even when disciplinary proceedings were contemplated, does not mean that a member of the All India Service should be dealt with differently.
It would not be proper to interpret the Rules, which from a self contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President of India.
[718 F G] (2) Rule 7 expressly provides for suspension of a member of the service, having regard to the nature of the charges, for the purpose of disciplinary proceedings.
The word 'charges ' in the rule means accusations or amputations against a member of the service.
If the disciplinary authority takes note of the allegation and is of the opinion after preli minary inquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed it would not be improper to remove the officer from the sphere of his activity either by transfer or suspension inasmuch as it may be necessary to find out facts from people working under him or look into papers which are in his custody.
Ordinarily when serious imputations are made against the conduct of an officer, the disciplinary authorities cannot immediately draw up the charges and in some cases a considerable time may elapse before the superior authority can come to a conclusion that definite charges can be levelled against the officer.
Merely because the order mentions that the disciplinary proceedings were contemplated it cannot be held that the situation in the present case had not reached the stage which called for an order of suspension.
In substance, disciplinary proceedings can be said to have been started when complaints about the integrity of an officer are entertained, followed by a preliminary inquiry into them culminating 716 in the satisfaction of the Government that a prima facie case has been made out against him for the framing of charges.
When the order of suspension itself shows that the Government was of the view that such a prima facie case for launching departmental proceedings has been made out the fact that the order also mentions that such proceedings were contemplated makes no difference.
1721 B F; 723 G; 724 G H; 725 B C] section Govinda Menon vs Union of India, ; , followed.
</s>
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<s>[INST] Summarize the judgement: Criminal Appeal Nos.
423 425 of 1986.
From the Judgment and Order dated 4.4.1986 of the Patna High Court in Death Reference No. 3 of 1984 and in Crl.
Appeal No. 676, 647 and 627 of 1984.
R.L. Kohli and S.P. Singh for the Appellants.
Jaya Narayan and D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These appeals by special leave are directed against a common judgment of the Patna High Court rendered in Death Reference 3 of 1984 and Criminal Appeal No. 627,647 and 676 of 1984.
Each of the appellants in the two appeals has been sentenced to death under section 302 read with section 120 B of the Indian Penal Code.
Appellant Yadav has independently been convicted under section 302 of the Code and has been sentenced to death.
He has also been convicted under section 3 of the Explosive Substance Act and has been sentenced to ten years ' rigorous imprisonment.
Two other accused persons who had been put on trial along with the appellants were 408 acquitted by the trial court and their acquittal has become final.
Mahesh Narain Prasad Sharma, the victim, was a Member of the Indian Administrative Service and was posted as Collec tor and District Magistrate of Gopalganj District in the State of Bihar on the 11th of April, 1983 Mahesh Narain went to his court to work in the morning and after he finished his work, both he and his brother, P.W.62, who was waiting in the chamber of the victim started going down from the first floor of the Collectorate to reach the portico where the Collector 's car was parked.
Mahesh Prasad was followed by his Orderly Peon, P.W. 19, and his brother one after the other.
When the deceased came on the landing, Yadav who was following them suddenly took out a bomb from the bag which he held and threw it at the Collector.
The bomb exploded with a loud noise and as a result of the burst Mahesh Prasad fell rolling on the ground and part of his body was blown off.
Yadav jumped off from the stairs through the side railing but was chased by P.W.62 and others and was appre hended near a fruit stall.
He readily confessed to his guilt but gave out that he had committed the ghastly murder at the behest of appellant Tripathi.
According to Yadav, Tripathi had prevailed upon him to kill the Collector by way of retaliation for demolishing the Ashram after getting Tripa thi detained in jail.
Yadav further maintained that Sadiq, one of the accused persons, had supplied the bomb to him.
P.W.14, the Inspector of Police, who was attracted to the scene by the sound of the bomb burst recorded the first information given by P.W.62, arrested Yadav and sent him to Gopalganj Police Station.
At the trial, 75 witnesses were examined for the prose cution.
Out of them, the evidence of 14 had been tendered.
So far as Yadav is concerned, there was direct evidence of his involvement and he had also confessed to his guilt.
Special leave, so far as he is concerned, is limited to the question of sentence.
We have, therefore, heard learned counsel for Yadav on the question of sentence and see no justification to take a view different from what has been said about him by the High Court.
His appeal, therefore, is dismissed and his conviction as also sentence as awarded by the trial court and confirmed by the High Court shall stand.
We shall now deal with the appeal filed by Sadanand Tripathi.
Sadanand came from a poor family and started his career as a Bus Conductor.
While in employment, he obtained the Degree in Law and started practice as a lawyer in Uttar Pradesh for some time.
Thereafter, he started giving reli gious discourses and styled himself as Sant 409 Gyaneshwar Maharaj.
He tried to make his followers believe that he had seen God and if they followed him and his preachings, they too could see God.
Soon he picked up con siderable following.
He used to tell his followers that they should surrender their body, wealth and mind so that the prospect of seeing God would be bright.
He encroached upon a plot of Government land and built his Ashram thereon.
As he had easy access to resources, the Ashram got fitted with all modern amenities.
Soon his followers, however, started realizing that they had been duped and tricked and began to withdraw from him.
Sadanand had employed a band of muscle men to carry out his nefarious designs.
His followers often became apprehensive of their own security and approached the local authorities for protection.
The Ashram, as the prose cution has tried to show, turned into a den of criminals.
Ultimately the authorities raided the Ashram, recovered bombs and several other objectionable articles therefrom.
Sadanand and many others were taken into custody on 10.7.1982.
The deceased, Mahesh Prasad, who was Collector of Gopalganj made an order under the Crime Control Act detain ing Sadanand in jail.
Eviction proceedings from the en croached land had already been undertaken.
On 14.7.1982 the Commissioner dismissed the appeal filed on behalf of the Ashram and on 15th July, 1982, the entire structure of the Ashram was demolished under the direct supervision of the Collector.
It is not disputed that from th July, 1982 Sadanand had continuously been detained in jail till the Collector 's murder on 11.4.1983.
In view of this fact, the prosecution has relied upon the allegation of conspiracy, confession and other features to establish the complicity of Sadanand in the murder of the Collector.
There are two confessions a judicial confession before a Magistrate, being Exhibit 44 and the other is extra judi cial confession.
Dealing with Exhibit 44, the High Court has observed: "So far as the confession before the Magis trate, Exhibit 44, is concerned, the trial court has itself, hesitatingly, accepted the same.
From the confession I find that it was in the nature of the cross examination which is not permissible under the law and has been depricated by the Supreme Court and different courts of the country.
Mr. Pandey, learned counsel appearing on behalf of the State, has fairly submitted that Exhibit 44 cannot be used in this case.
Therefore, it has to be excluded from consideration.
" 410 Before us Mr. Jai Narain for the State initially placed reliance on the confession but later conceded that apart from what the High Court has observed with regard to the confession, it appeared to be exculpatory in nature and, therefore, would not be admissible against the co accused.
In these circumstances, the judicial confession has to be kept out of considerations.
Coming to the extra judicial confession it has to be remembered that the same related to the point of time con temporaneous to the incident.
There is evidence that Yadav was beaten up badly after being apprehended by the mob soon after the bomb burst.
Several prosecution witnesses have spoken about Yadav confession before them.
There is clear material that Yadav was man handled.
P.W.3 has stated: "He was held by me and other persons chasing him.
We began to assault him and make en quiries from him.
Then the said person himself said, 'why you people are assaulting me.
I have killed the Collector by bomb at the orders of Guru Sant Gyaneshwar and one bomb has been left in the Jhola".
P.W. 10 stated: "The people who caught of him began to assault him and began to ask him why has he killed the Collector.
On being asked, he replied that he had killed the Collector under the orders of Baba . . . " P.W. 11 stated: "On being caught hold of, he was assaulted with slaps, fists and asked as to why he did so.
On being asked, the said person replied that he had hit the Collector by bomb at the orders of Guru.
" Several other witnesses have also spoken in the same trend about Yadav being assaulted by the angry mob soon after his apprehension.
It is a fact that a set of witnesses who, according to the prosecution, were present when Yadav was taken into custody following the incident, have not spoken about any confession.
They are P.Ws. 5, 12, 15, 40 and 57.
In his own statement recorded under section 164 of the Code on 13.4.1983, Yadav denied to have made any statement fol low 411 ing his apprehension.
Even accepting the prosecution story that Yadav made this statement, he appears to have made the statement following assault on him.
Even if it is accepted that Yadav has made the statements as alleged, can the same be utilised against Sadanand is the next aspect for consid eration.
Obviously, when Yadav was beaten up, he must have been anxious to ensure that the assault stopped.
His plea in such a situation would neither be voluntary nor natural.
It would not be proper to rely upon the same for any purpose.
It is well settled that the confession of a co accused is not substantive evidence against other co accused persons in the same trial.
As this Court pointed out in Kashmira Singh vs State of Madhya Pradesh, ; the confes sion of a co accused is not substantive evidence against the other accused persons at the trial but could only be used for lending reassurance if there by any other substantive evidence to be utilised or acted upon.
In Hari Charan Kurmi & Anr.
vs State of Bihar, ; this Court observed: "Thus, the confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act.
The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the con fession of a co accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence." ". . . that the confession of a co accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence .
" It is now to be found out if apart from the confession there is any substantive evidence from which the prosecution can have support for its case.
According to the prosecution, Yadav was staying with 412 Sadanand in the Ashram.
Learned counsel for Sadanand has argued that the prosecution evidence on this score should be rejected as when on 10th July, 1982 Sadanand was taken into custody following the raid on the Ashram, Yadav was not found there.
Again on the 15th when the Ashram was demol ished and most of the inmates were taken into custody, Yadav was not arrested.
Several other witnesses were examined to show that Yadav was very close to Sadanand.
But as has been rightly pointed out the source of their knowledge appeared to be statement of Yadav and independently they had no personal knowledge of the fact.
Prosecution sought to place reliance upon motive.
Un doubtedly, Sadanand must have had grudge against the Collec tor for his detention as also for the demolition of the Ashram.
As a matter of fact, that must have been the common reaction of all the ashramites including Yadav and Sadiq.
Thus, this could not be a feature to supply the link for establishing conspiracy.
Prosecution also relied upon a feature, which if accept ed, could provide some link between the two for the commis sion of the offence.
According to the prosecution, Yadav was regularly visiting Sadanand at the jail.
The jail records do not support such visits.
According to the prosecution case, Yadav was bribing the jail officials for meeting Sadanand.
The prosecution has further led evidence to show that after the arrival of Sadanand at the jail, enforcement of rules became slack and there was a regular flow of food from outside.
Jail officials were also entertained by Sadanand.
This type of evidence, even if accepted, does not establish conspiracy because Yadav, being a follower, was likely in the usual course to meet Sadanand and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy.
Prosecution relied on an event of 11th April, 1983 by examining P.W.4.
This witness who was a convict staying in the same jail stated that his wife had an interview with him in the jail by paying bribe of Rs.2 or Rs.3 on 11.4.1983.
While he was talking to his wife, he saw accused Yadav talking to Sadanand.
He over heard Yadav telling Tripathi that his work would be done within an hour or so.
Sadanand appeared to be happy on being told so.
P.W.4 has admitted that he has been convicted in three cases of murder and several dacoities.
It appears that by then he had some pending cases against him where final reports were later given by the police.
His wife who was a material witness has not been examined in the case.
413 Obviously, as the jail records did not show that P.W.4 had an interview with his wife that day, the story of brib ing the jail officials has been introduced.
We are prepared to accept the criticism of counsel for the appellant that if the wife had been called she would not have supported the version that she met her husband P.W.4 on that day.
Adverse inference for not examining the wife has to be drawn against the prosecution.
This would thus be the net position.
It is true as argued by Mr. Jai Narain for the State that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted.
Keeping the nature of the offence in view and the conclusions drawn by the High Court, we have not been able to agree with the High Court that the prosecution has established by circumstantial evidence the complicity of Sadanand in the conspiracy to kill the Collector through Yadav.
In these circumstances, Sadanand has become entitled to the benefit of our doubts and his conviction is not sustainable.
His appeal has to be allowed.
He is acquitted and is directed to be set at liber ty forthwith.
Before we part with the case, we must point out that in a case involving the killing of the District Magistrate in his office, better investigation was expected and the State should have taken great care to ensure that every loophole in the investigation was plugged at the fight time in ac cordance with law.
It is unfortunate that lapses have oc curred.
P.S.S. Appeals dis posed of.
[/INST]The appellants were alleged to have conspired to kill the Collector cure District Magistrate.
The latter died in a bomb attack by the first accused appellant.
He was caught red handed and when given a beating by eye witnesses he readily confessed to his guilt, but gave out that he had committed the ghastly murder at the behest of the second appellant, who was at that material time detained in jail.
He made a similar confession before the Magistrate.
They were both convicted under s.302 read with section 120B of the Indian Penal Code and sentenced to death.
Their sentence was confirmed by the High Court.
Disposing of the appeals, this Court, HELD: 1.
There was direct evidence of first appellant 's involvement in the crime and he had also confessed to his guilt.
There was, therefore, no justification to take a view different from what has been said about him by the High Court.
His conviction as also sentence shall stand.
[408F G] 2.1 The prosecution has failed to establish by circum stantial evidence the complicity of the second appellant in the conspiracy to kill the Collector through the first accused.
He was, therefore, entitled to the benefit of doubt and his conviction was not sustainable.
[413D] 406 2.2 Where the prosecution relies upon circumstantial evidence to support the charge of conspiracy, a clear link has to be established and the chain has to be complete, otherwise it would indeed be hazardous to accept a part of the link as the complete one.
On the basis of such incom plete circumstantial evidence, the allegation of conspiracy cannot be accepted.
[413C] 3.1 The confession of a co accused is not substantive evidence against other co accused persons in the same trial but could only be used for lending reassurance if there be any other substantive evidence to be utilised or acted upon.
[411C] Kashmira Singh vs State of Madhya Pradesh, ; and Hari Chand Kurmi & Anr.
vs State of Bihar, ; , referred to. 3.2 The judicial confession of the main accused in the instant case was exculpatory in nature and, therefore, would not be admissible against the co accused.
It has, to be kept out of consideration.
[410A B] 3.3 The extra judicial confession of the main accused relates to the point of time contemporaneous to the inci dent.
There was evidence that he was beaten up badly after being apprehended by the mob soon after the bomb burst.
Several prosecution witnesses have spoken about his confes sion before them.
There was clear material that he was manhandled.
[410B C] 3.4 In his statement recorded under s.164 of the Code on 13.4.1983, the main accused denied to have made any state ment following his apprehension.
Even accepting the prosecu tion story that he made this statement, he appears to have made the statement following assault on him.
Even if it is accepted that he has made the statements as alleged, the same cannot be utilised against the co accused.
Obviously when the accused was beaten up, he must have been anxious to ensure that the assault stopped.
His plea in such a situa tion would neither be voluntary nor natural.
It would not be proper to rely upon the same for any purpose.
[410H; 411A B] 4.
The 2nd appellant might have had grudge against the Collector for his detention as also for the demolition of his Ashram.
That must have been the common reaction of all the ashramites, including the co accused.
This could not, therefore, be a feature to supply motive for establishing conspiracy.
[412C D] 407 5.1 Several witnesses were examined to show that the main accused was very close to the co accused.
But the source of their knowledge appeared to be statement of the main accused and independently they had no personal knowl edge of the fact.
[412B C] 5.2 P.W.4, who testified that during his interview with his wife in the same jail, he had overheard the alleged conversation between the accused and the 2nd appellant, was himself a convict in three cases of murder.
His wife, who was a material witness has not been examined in the case.
Adverse inference, has to be drawn against the prosecution for not doing so.
[413A B] 5.3 This type of evidence, even if accepted, does not establish conspiracy because the accused being a follower of the 2nd appellant, a religious preacher, he was likely in the usual course to meet the latter and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy.
[412F]
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<s>[INST] Summarize the judgementAppeal Nos.
2182/93 with 2181/93.
From the Judgment and Order dated 30.4.1992 of the Gauhati High Court in Civil Rule No. 166 of 1984.
A.M. Mazumdar, Attorney General, Arunachal, K.K. Venugopal, Shahid Rizvi and Ms. Manjula Gupta, Appellant in C.A. No. 2182 of 93 and for the Respondent in C.A. No. 2181/93.
Govind Mukhoty and S.K. Bhattacharya for the respondent in C.A. No. 2182/93 and for the Appellant in C.A. No. 2181/93.
The Judgment of the Court was delivered by MOHAN.J.
Leave granted.
Both these civil appeals arise out of the judgment of the Gauhati High Court dated 30th April, 1992 rendered in CR.
No. 166 of 1984.
The short facts are as under: The parties will be referred to as the appellant and the State of Arunachal Pradesh.
The appellant alongwith his family members and other 56 families migrated to India on 30th March, 1964 from erstwhile East Pakistan, now Bangladesh, due to disturbances prevailing at that time.
They took shelter in a government camp at Abhayapur Block in Tirap District.
The appellant and other 56 families are known as Chakmas of the erstwhile East Pakistan.
They being the refugees were given shelter in government camp at Ledo in the District of Dibrugarh, Assam.
Later on, in 1966, they were shifted to the Camp at Miao within the State of Arunachal Pradesh.
Arunachal Pradesh was called NEFA (North East Frontier Agency) prior to 1972.
On 21st January, 1972 it was given the status of Union Territory of 406 Arunachal Pradesh.
It became a full fledged State on 20th February, 1987, Geooraphically, it is situated on the north east of India and has a long international border with Bhutan, China and Burma (Burma presently called Myanmar).
It is the largest State areawise in the north east region, even larger than Assam which is the most populous State.
The population of Arunachal Pradesh, according to the 1981 census is 6.32 lakhs.
It is scattered over 12 towns and 3,257 villages.
There are 26 Major tribes.
Broadly speaking, the people in the State can be divided into three cultural groups, on the basis of their socio regional affirmities.
i) The monpas and Sherdukpens of Tawang and West Kemeng District; ii)Khamptis and Singhphos inhabiting the entire easternpart of the State , and iii)The Neotes and Wanchos adjoining, Negal and in the Tirup District; In the year 1966, the State Government drew the Scheme known as Chakma Resettlement Scheme for these refugees.
Areas were earmarked for their settlement at different parts of the State and accordingly they were asked to move to the areas earmaked for them, In all, 5 Schemes were sanctioned for their settlement (comprising of about 3100 families of refugees) at the cost of more than Rs. 2 crores.
The appellants along with 56 families were allotted lands in the villages of Gautampur and Maitripur.
There were already a good number of Chakma refugee families who were allotted lands and were living there peacefully.
The appellants instead of residing in the said allotted areas under the Resettlement Scheme drawn by the Government, strayed away from it and negotiated with the Local Raja namely Nigrumong Singpho of Damba for an area of one sq.
mile of his private land and got the same from the said Singpho through an unregistered deed dated 20th November, 1972.
The State would contend that the said transfer is illegal because as per section 7 of the BEFR, 1873 (Regulation 5 of 1873) no person, who is not a native of the District, would acquire any interest in the land or the produce of the land beyond the inner line without the sanction of the State Government or such officer as the State Government may appoint in this behalf.
On the contrary, the stand of the appellant is that since the date of donation they have been residing and cultivating 407 the said land and they have developed the area for habitation purposes.
It is further alleged on behalf of the appellant that in 1975, a village panchayat of Joypur village was formed after election of the members.
The appellant was appointed as the Gaon Bura of the village.
This was with the approval of the Government, in token of which a sanad dated 20.11.75 was issued in his name.
The Deputt Commissioner at kenosa approved the transfer and the Extra Assistant Commissioner, Miao by his memorandum No. MR S (A) n5/8648 51 dated 26.4.70 issued instructions against any attempt to allot the land to other and generally against any eviction of the appellants from the said land.
Some Deori families who were allotted lands in the adjacant area of Joypur village attempted to encroach upon the lands of the appellant and on a complaint lodged, the authorities concerned i.e. Executive Magistrate at Miao by his letter dated 30.5.77 issued instructions to Ningronong Singpho Rajkumar to turn out the extra families from the appellant 's village with a direction to the Circle Officer, Diyun to report compliance.
It was after such intervention that such outsiders in due course were expelled.
After obtaining the donation from the Raja by dint of hard labour they developed the jungle area which was a hillly uneven tract of land.
In view of the tremendous agricultural success the Tirup District authorities granted two Rice Hullar Units in the name of the appellant.
The Chakmas transformed the land into a truly self sufficient village.
In view of prosperity and growth of land the nearby villagers sought to dislodge the appellant and families by raising various disputes, one of which was that the place cannot be utilised as refuge settlement and that they should be shifted to another place.
Circle Officer, Diyun issued an order dated 15.2.84 directing the appellant to shift to the vacant land at Gautampur and Maitripur villages latest by 24th of February, 1984.
The representation requesting the Chief Minister of Arunachal Pradesh to interfere was of no avail.
The appellant after settling in this unauthorised land started committing criminal and illegal activities.
There were several complaints to the effect that the appellant is encroaching upon the private lands illegally in connivance with the local people, particularly, Singphos.
In order to investigate the matter fully, the Government, vide its letter dated 4.4.1979, directed an enquiry into the whole matter through a Committee compris 408 ing of 9 persons with the Deputy Commissioner of the area as the Chairman.
The said committee after the investigation submitted its report on 11.6.79, stating therein that about 788 families of Refugees (Chakmas, Deori, and Bhufia) have illegally encroached upon about 872 Hectares in Miao Sub Division alone.
The said Committee observed that: "7.
The fear of the local people regarding heavy growth of population among the Chaknias has already been stated above and it is also well known to the Government.
But such fear maybe true in the case of Deoris and Ahoms too because it has been seen that in their case too the irpopulation is increasing by leaps and bounds, for instance it is learnt that when they were inducted there were only 6 Ahom families and 32 Deoria, where as this has now increased to 23 and 106 respectively, We should, therefore, watch by one method or the other that flow of Chakmas, Deoris and Ahoms does not at all take place.
For this purpose formal allotment of land to each family is very necessary and further in order to guard against new entrents, the DCs office is said to be taking up the issue of identity cards." "9.2 Land is still available in Innano, Dumba and Modoi, especially after the eviction of four Chakma villages during March last.
Singphos have been known to induct outsiders not only without Govt.
's approval but also by various undesirable mathods, this has to be properly watched and if found necessary we may have to give exemplary punishment to those who indulge in such practice.
Already there is some sign of dissension among the local people due to the activities of one Nirunong of Kumchai village who was mainly responsible for inducting Chaknias in Jaipur village, 10 Deori families and some other from outside.
It has also been seen that in Innano village there are six tea garden tribals who have been living and working since the last 10 years with Inner Line passes renewed from time to time but obviously with the understanding that the local people would subseqently give them land for permanent resettlement.
" The State received complaints that Chakma people were indulging in illegal activities such as commission of offences under various lands, collection of arms and anununitions, establishing conteracts with the Extremist groups, encroachment of adjoining areas.
The State, therefore, found it necessary to shift them to 409 a site where other Chakma families were already residing.
It was in these circumstances, by order dated 15.2.84, the State directed the appellant and the other Chakmas to shift.
The said order is to the following effect: "In connection to this office memoranodum No. LS 4/83/84/ 2478 79 dated 6.2.84, the Chakma of Joypur village are hereby directed to shift to the vacant land allotted at Gautampur and Maitripur village latest by 25.2.1984.
This may be treated as final notice, failing whichlegal action will be taken against the defaulters.
" Questioning the correctness of the order CR No. 166 of 1984 was filed before the High Court of Gauhati: It was urged: (i) The petitioners are citizens of India.
(ii) Their fundamental rights have been infringed.
(iii) The impugned notice dated 15th of February, 1984 is illegal, arbitrary and had been issued in violation of the principles of natural justice.
The High Court of Gauhati formulated three questions for determination: 1.
Whether the writ petitioner and the 56 chakma familes now settled in Joypur village, Miao subdivision, Arunachal Pradesh are citizens of India or foreigners, 2.
If they are not citizens of India, whether the authorities concerned have right to give direction to these Chakma people to move to another place.
Whether the impugned order dated 15.2.1984 is arbitrary, devoid of reason and violative of the provisions of the Constitution.
While urging the first question it was contended that the petitioner and the other Chakma families came to Assam in 1964 and stayed there for some time.
They were shifted to Miao Sub Division in Arunachal Pradesh.
In 1964, the territory of Arunachal Pradesh was included in Assam.
Since they stayed in Assam 410 they must be deemed to be citizens of India within the meaning of Section 6 A of the as amended in 1985.
They also contended that proviso to Section 2 of Immigrants (Expulsion from Assam) Act, 1950 would also protect them.
The High Court, on an elaborate consideration of the provisions of , came to the conclusion that language of Section 6 A of the is very clear.
It states that person who have come into Assam before January 1966 from the specified territory and who have been ordinarily resident in Assam since the date of their entry shall be deemed to be citizens.
Admittedly, the petitioners therein would not fell under this category as they stayed in Assam for a short while in 1964.
Accordingly, they will not be citizens of India.
On the second question, the High Court referred to Section 7 of the Bengal Eastern Frontier Regulation, 1873.
That section specifically prohibits the acquisition of interest in land by other than the natives of the district without the sanction of the State Government.
Admittedly, there was no sanction of the State Government in favour of the petitioners under the said Regulation which is applicable to Arunachal Pradesh.
Besides, clause 9 (2) (a) of the Foreigners Order 1948 prohibits acquisition of land or any interest thoreon or within the prohibited area by any foreigner.
Clause 9 (2) (b) states that the local authority may impose conditions regarding acquisition of land or any interest thereof or any other matter deemed necessary in the interest of public safety.
There was no controversy that the place where chakmas were staying is within the inner line which is protected area notified by the State Government.
In view of the facts, the High Court came to the conclusion that the petitioners had no right to seek a permanent place of abode in that area.
The authority had every right requiring them to shift.
On the third question.
after going through the various files produced by the State Government, in the court, the High Court found various complaints against these chakmas.
They were indulging in procuring arms and ammunation and were actively, associating with anti social elements Accordingly, it was concluded that the impugned order is not devoid of any reason.
Lastly, the High Court, on humanitarian grounds, directed the State Government to give adequate compensation in the event of these chakmas being evicted from the place.
The State of Arunachal Pradesh has preferred S.L.P. (C) No. 12429 of 1992 while Khudiram Chakma has filed S.L.P. (C) No. 13767 of 1992.
411 Mr. Govind Mukhoty, learned counsel for the appellant urges that in 1947 the appellants were Indian citizens.
Because of the partition of the country they went over to the then East Pakistan, presently Bangladesh.
But when they returned in 1964 to the erstwhile Assam State they stayed there for some time and shifted to Arunachal Pradesh.
To deprive them of the citizenship would be violative of Article 14 of the Constitution of India.
By mere accident of their going over to Arunachal Pradesh, they cannot lose their citizenship.
The learned counsel referred us to the various provisions of the .
He urges that there is evidence, in this case, of donation of lands in favour of these appellants by Raja Nirunong Singpho of Dumba.
That was approved by the Deputy Commissioner as seen from memorandum dated 26th of April, 1976.
The appellant was appointed Gaon Bura of Joypur village.
In proof of that Sanad was issued by the Deputy Commissioner.
Again, the Executive Magistrate had directed the Raja to turn out the extra families occupying lands at Joypur in the area allotted to the appellants and other Chakmas.
There is also evidence on record to show that chakmas have been paying taxes including house tax.
When that be the position, there is no justification at all calling upon the appellants and the other 56 families to shift.
There was no notice before calling upon the appellants to shift.
This Court in Scheduled Caste and Weaker Section Walfare Association vs
State of Karnataka ; , a case arising under karnataka Slum Areas (Improvement and Clearance) Act, 1973, held that before eviction a slum dweller does have a right to say.
Therefore, it is submitted that the principle of natural justice applies to noncitizens also.
In Louis De Raedt vs Union of India ; this Court took the view that the fundamental rights are available to foreigners as well, including Article 21 of the Constitution.
Mr. K.K. Venugopal, learned senior counsel, appearing for the State of Assam contends in opposition: The appellants cannot claim to be citizens of India by invoking Section 6 A of the as amended and incorporated on 7.12.85 in pursuance of the Assam Accord.
In order to get the benefit of Section 6 A two conditions mentioned in sub section (2) of the said Section must be satisifed simultaneously: (i) The persons who are of Indian origin (viz. undivided India) came before 1.1.66 to Assam from the specified territory ', and 412 (ii) have been "ordinarily resident ' in Assam (as it existed in 1985) since the date of their entry into Assam.
In so far as the appellants were residing in Miao sub division of Tirup District, Arunachal Pradesh since 1968 they did not satisfy these conditions.
As to what exactly is the meaning of "ordinarily resident" could be seen from Shanno Devi vs Mangal Saini ; at 590.
It is true that this Court in Louis De Raedt (supra) took the view that even foreigner has a fundamental right, but that fundemental right is confined only to Article 21 and does not include the right to move freely throughout and to reside and stay in any part of the territory of India, as conferred under Article 19(1) (d) and (e).
Such a right is available only to the citizens.
The appellants being foreigners, cannot invoke Article 14 of the Constitution to get the same right denied to them under Article 19 since Article 14 cannot operate in regard to a right specifically withheld from non citizens.
In support of this submission, reliance is placed on Indo China Steam Navigation Co vs Jasjit Singh 94 at 621 to 622 and Louis De Readt (supra).
The land donated in favour of the appellants by Raja Nirunong Singpho of Dumba by donation deed dated 20.11.72 is illegal.
Section 7 of the Bengal Eastern Frontier Regulation 1873 and clause 9 of the Foreigners under 1948, which are applicable to Arunachal Pradesh, specifically prohibit such transfer without prior permission of State Government.
No such permission, in this case, was obtained.
The tribals of North eastern States are historically protected races.
Part x of the Constitution of India contains provisions and laws goveming them.
The decision re arding settlement of foreigners is a matter of policy.
It is well settled in law that the Court does not interfere in a matter of governmental policy since it is for the Government to decide.
On the quesion of natural justice before passing the impugned order dated 15.2.84 the learned counsel.
, producing the relevant material from the file, would urge that it is not correct to state that the order came to be issued all of a sudden.
There is abundant material to show that the question of eviction was an ongoing process.
right from 1978.
Many notices were issued over a period of years to shift to villages Maitripur and Gautampur.
There were protests from chakmas.
From the file it is seen that the appellant was aware of the shift order dated 26.9.83.
There was also an oral hearing of the same.
It was because of the complaints filed by the residents of the locality against the appellant and in view of the report that they were induling in procuring arms and ammunition and were in close contact with anti social elements.
Taking an overall view of the matter, the impugned order 413 came to be passed.
On ground realities, natural justice is fully satisfied.
In support of the above submissions, the learned counsel relied on the following cases: p. 331 A to 332 H, 334 A to J: R.v.
Secretary of State for the Home Department ex party Cheblak.
; , Lord Bridge of Harwich, p. 723 F to 724G Lord Templeman, p. 725 J, 726 A to C. Lord Ackner.
p. 73 1 H 732G H 735 F J Lord Lowry, p. 737 D J. Brind vs Secretary of State ; Council of Civil Service Unions vs Minister for the Civil Service D) p. 219, 223 A J, 229 McInnes vs onslow Farne & Anr.
; at p. 722 723 para 12, 13 JR Vohra vs India Export House Pvt. Ltd. at p. 738 para 20 22 Maharashtra State Board of Secondary & Higher Education.
vs KS.
Gandhi at p. 263 Satya Vir Singh vs Union of India However, the learned counsel fairly conceded that the Chief Minister was willing to hear the appellants or any representative of their group, additionally, as a post decisional hearing, even though they had full opportunities over a period of four years.
It is his submission that it must be a post decisional hearing as otherwise, if the decisions were against the appellants a further round of litigation would be embarked upon.
We will proceed to consider the correctness of the above submissions 414 providing the necessary background and the factual matrix.
The history of the mountainous and multitribal north east frontier region which is now known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology.
According to Puranic legend, Rukmini, the daughter of king Bhishmak, was carried away on the eve of her marriage by Lord Krishna himself.
the ruins of the fort at Bhalukpung are claimed by the Akas as the original home of their ancestor Bhaluka, the grandson of Banna Raja, who was defeated by Lord Krishnaat Tezpur (Assam).
A Kalita Kinu, Ramachandra, driven from his kingdom in the plains of Assam, fled to the Dafla (now Nishan) foothills and established there his capital of Mayapore, which is identified with the ruins on the It a hill.
A place of great sanctity in the beautiful lower reaches of the Lohit River, the Brahmakund, where Parasuram opened a passage through the hills with a single blow of his mighty axe, still attracts the Hindu pilgrims from all over the counrty.
In the year 1838, when the British took over the administrative control of Assam from the last Ahom king, Shri Purander Singh, it was thought necessary to extend elementary regular administration to the adjoining north east frontier region.
The first import and step in this direction was as such initiated with adoption of Regulation V of 1873 empowering the then Lieutenant Governor of Assam to prescribe a Line, called 'Inner Line ' with a view (1) "to bring the commercial relations of the hills with the plains under more, stringent control, (2) to prevent of operation of speculators in "caoutchouc" (raw rubber), (3) to prevent the spread of tea gardens, and (4) to lay down rules for the possession of land and property beyond the 'Inner Line ' without special permit.
" A Notification bearing No. 1486, dated June 21, 1876 was issued by the Government of India, foreign Department to the effect that the Governor General was pleased to prohibit all British Subjects from going beyond the inner line without a pass under the hand and seal of Deputy Commissioner.
After covering the hilly areas administratively, the whole of tribal region was divided into two Frontier Tracts in 1915.
By 1937, the administrative status of North East Frontier Tract could be effected to under the Govemment of India 's (Excluded and Partially Excluded Area) Order of 1936.
Under the effective provision of the Section 91 (i) of the governmentoflndia Act, 1935, the above Frontier Tract came to be known as Excluded Area of Assam.
Again, the 1942 administrative change took place as a consequence of which Tirap Frontier Tract was carved out of the Sadiya Frountier Tract.
In 1943.
an adviser was appointed as the administrative head with a purpose to develop the region 415 through gradual penetration of the administrative machinery.
Another change was effected in the administrative set up on the 26th of January 1950 when the Government of Assam was relieved of its responsibility for looking after the administration of the Excluded Area.
However, the discretionary power was vested in the Governor of Assam, under the provision of the paragraph 18 of the Sixth Schedule to the Constitution and Part 8 of the Table 20 of the Schedule, who served as the agent of the President of the Union of the Republic of India.
In the course of administrative and political events Arunachal Pradesh has travelled from the Tract to the Union Territory.
Under the provision of (Central Act 81 of 1971), the present status of Union Territory was granted to the erstwhile North East Frontier Agency and renamed as Arunachal Pradesh on January 21,1972.
The Union Territory of Arunachal Pradesh was placed under the charge of Chief Commissioner during that year.
The year of 1975 also proved eventful for Arunachal Pradesh.
On 15 August, 1975, then existing Pradesh Council was constituted into the Union Territory legislature.
The panel of then existing five counsellors was constituted into provisional Council of Ministers.
Consequent upon the above change, the post of Chief Commissioner was further elevated to the position of Leutenant Governor on 15 August, 1975.
The first general election to Arunachal Legislature was held in the month of February, 1978.
The Arunachal Pradesh Legislative Assembly has 33 members in total, out of which 3 members are nominated.
Earlier, Arunachal Pradesh had nominated a representative in the Parliament.
By an Act of the Government of India in 1971, the Union Territory was provided with one seat each in Lok Sabha and Rajya Sabha, but these representatives were nominated by the President of India.
But at present, Arunachal Pradesh enjoys two elective seats in the Lok Sabha based on the Universal franchise.
On 20th of February, 1987 Arunachal Pradesh was made a full fledged State.
Thus, it will be seen that at no time Arunachal Pradesh was part of the Territory of the State of the Assam though it was being administered by the Governor of Assam or the President of India, as the case may be.
The following Charonological Statment of changes in the pattern of Administration in NEFA occuring in P.N. Luthra 's constitutional and Administrative Growth of the North East Frontier Agency is useful: 416 1 2 3 4 5 6 1914 1919 1937 1947.
1950 1965 Adminis Administ Adminis Adminis Admin Admini tered by ered by tered by tered by tered by tered the Gove the Gov the Gov the Gov the Pre as be rnment of ernment ernor of ernor of sident fore by Assam of Assam Assam Assam through theGov with acting in acting on the Gover erner special his disc the nor of as agent safe retion advice of Assam as of the guards.
indepen the Pro his agent Presi dently of vincial acting in dentbut the provi Ministry, his disc under ncial Minis retion the try underthe general general supervi super sion and visionand control control of the of Mini Minis try of try of External Home Affairs.
Affairs.
Arunachal Pradesh is situate in the North East of India skirted by Bhutan in West, Tibet and China in North and North East, Burma (Myanmar) in East and Assam in South.
It consists of the sub mountains and mountainous ranges sloping to the plains of Asswn.
It 's capital is Itanagar.
It is the largest state areas wise (33,743 sq kms.) in the North East region even larger than Assam which is the most populous.
Arunachal Pradesh is the most thinly populated state in India.
According to 1991 census the population of Arunachal Pradesh is 6.32 lakh and is scattered over 12 towns and 3,257 villages.
There ate 26 major tribes in Arunachal Pradesh.
Broadly speaking, the people in the state may be divided into three cultural groups on the basis of their socio regional affinities.
i) The Monpas and Sherdukpens of Tawang and West Kemeng District; ii) Khamptis and Singphos inhabiting the entire eastern part of the State; and 417 iii) The Noetes and Wanchos adjoining Negaland in the Tirap District.
This is the history of Arunachal Pradesh, a rich land and poor people.
It was in the year 1964 thousands of chakma families migrated from the then East Pakistan to India.
The appellant along with other 56 families also migrated to India.
Being refugees they were given shelter in government camps at Ledo within the district of Dibrugarh, Assam.
Later on they were shifted to the camp at Miao subdivision in Tirap District, now within the State of Arunachal Pradesh which was then known as North East Frontier Agency (NEFA).
In the years 1966 68 the then Government drew up the Chakma resettlement schemes.
Altogether 5 schemes were sancitioned for settlement of 3100 families at a cost of more than rupees two crores.
The appellants were allotted lands in the villages of Gautampur and Maitripur.
The other Chakmas were also staying there.
As stated earlier, on 2 1st January, 1972 NEFA was given the status of Union Territory and was renamed as Arunachal Pradesh.
The appellants strayed away from the original settlement area allotted to them by the Government under the schemes.
They got donation from the local Raja namely Ningrunong Singpho of Dumba, an area of 1 sq. mile at Joypur village which is inside the Inner Line.
Earlier we were referred to Bengal Eastern Frontier Regulation 1873.
Clause 2 of the said Regulation states thus: "It shall be lawful for the State Government to prescribe and from time to time to alter by notificaton in the Official Gazette line to be called "The inner Line" in each or any of the above named districts.
The State Government may, by notification in the Arunachal Pradesh Gazette prohibit all citizens of India or any class of such citizens or any persons residing in or passing through such districts from going beyond such line without a pass under the hand and seal of the Chief Executive Officer of such district or of such other officer as he may, authorise to grant such pass ', and the State Government may, from time to time, cancel or very such prohibition.
" Clause 7 is important.
That reads as follows: "It shall not be lawful for any person, not being a Native of the district comprised in the preamble of this Regulation, to acquire any interest in land or the product of land beyond the said "Inner Line" without the sanction of the State Government or such officer as the 418 State Government shall appoint in this behalf.
Any interest so acquired may be dealt with as the State Government or its said officer shall direct.
The State Government may also, by notification in the Arunachal Pradesh Gazette extend the prohibition contained in this section to any class of persons, natives of the said districts, and may from time to time in like manner cancel or very such extensions Under Section 3 of the of 1946, the central Government may.
by order, make provision for prohibiting regulating or restricting the entrt of foreioners into India.
In exercise of power conferred under Section 3 of the said Act Foreigners Order of 1948 dated 10.2.48 was issued.
Under clause 9 of tile said Order the Central Government or with prior sanction, a civil authority may, by order, declareany area to be a protected area for the purposes of this order.
On such declaration, the civil authority may, as to any protected area ,prohibit any forging or any class of foreigners from entering or remaining in the area, impose on any foreigner or class of foreigners entering or being entered in the area.
such conditions as may be mentioned under clause 9.
Clause 9 of the Foreigers Order of 1948 in sub clause (2) prohibits the acquisition of any land or anv interest thereon within the prohibited area by any foreigner.
Under Clause 9 the authorities concerned, by an order, may prohibit any foreigner from remaining in any part of the protected area as stated in the Foreigners Protected Area 0rder of 1958 which includes the territory of arunachal Pradesh.
Examined in this light, the donation by Raja is clearly invalid.
However, the memorandum dated 26th of April, 1976 issued by the Extra Assistant Commissioner Miao states that the agreement between the 'appellant, Khudiram Chakma and the local Raja dated 20.11.72 has been approved by the Deputy Commissioner.
That is again mentioned in the direction given by the Executive Magistrate Miao on 30th of May, 1977.
The effect of approval by the Deputy Commissioner will be considered later.
In this factual background, the question arises whether the appellants could claim citizenship under Section 6 A of of 1955.
We will now extract the said Section: 419 "6 A. Special Provisions as to the citizenship of persons covered by the Assam Accord: (1) For the purposes of this section: (a) "Assam" means the territories included in the State of Assam immediately before the commencement of the citizenship (Amendment) Act, 1985; (b) "detected to be a foreigner" means detected to be a foreigner in accordance with the provisions of the (31 of 1946) and the Foreigners (Tribunals) Order 1964 by a Tribunal constituted under the said Order, (c) "specified territory" means the territorises included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985; (d) a person shall be deemed to be of Indian origin, if he, or either of his parents or any of his grandparents was born in undivided India; (e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opnion to the effect that he is a foreigner to the officer or authority concerned.
(2) Subject to the provisions of sub sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.
(3)to(8). . . (unnecessary)" As rightly urged by Mr. K.K. Venugopal, learned counsel for the State of Assam, two conditions are required to be satisfied under sub section (2).
They are: (i) Persons who are of Indian origin (undivided India) came before 1.1.66 to, 420 Assam from the specified territory; and (ii) have been "ordinarily resident" in assam as it existed in 1985 since their date of entry in Assam.
The appellants were no doubt persons of Indian origin.
They came to Assam prior to 1. 1.66, namely, 3 1.3.64 from the then East Pakistan, (presently Bangladesh) which is undoubtedly one of the specified territories under Section 6 (1) (c).
Assam, as seen from 6A (a), means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985.
It is the common case that chama people entered into Assam and stayed their for some time in Ledo within Dibrugarh District.
Thereafter they shifted to Miao, Arunachal Pradesh.
According to the appellant, since the territory of Arunachal Pradesh in 1964 was included in the State of Assam they would be entitled to the benefit of Section 6A.
This contention overlooks the fact the Immigrants (Expulsion from Assam) Act, 1950 (Act X of 1950) applied to the territories presently forming part of Meghalaya, Nagaland and Arunachal Pradesh.
However, by the , 197 1, the territories of Arunachal Pradesh were excluded from the purview of the Immigrants (Expulsion from Assam) Act of 1950.
Turning to Condition No. 2 the requirement is ordinarily resident in Assam from the date of entry till the incorporation of Section 6A, namely, 7.12.85.
As to the meaning of "ordinarily resident" we may refer to Smt.
Shanno Devi vs Mangal Saini ; We find the following observations at page 590 apposite: "It is not necessary that for every day of this period he should have resided in India.
In the absence of the definition of the words ,. 'ordinarily resident" in the constitution it is reasonable to take the words to mean "resident during this period without any serious break".
In so far as the appellants and the chakmas were residing in Miao subdivision of Tirap District in Arunachal Pradesh long before 1985, they cannot be regarded as citizens of India.
We find it difficult to appreciate the argument of Mr. Govind Mukhoty, learned counsel, that the accident of the appellants living in Arunachal Pradesh should not deprive them of citizenship.
In this connection, it 421 is worthwhile to note that Secion 6A of the came to be incorporated by Amending Act as a result of Assam Accord.
If law lays down certain conditions for acquiring citizenship, we cannot disregard the law.
As laid down in Kennedy, vs Mendoza Martinez ; , 159 [1963] "Citizenship is a most precious right.
" Aristotle, Politics, III, 5 States thus: "From earliest times, it has been such status alone that has enabled the individual to share fully in the benafits of the community in which he resides: "Compare Homer 's words, like some dishonored stranger ': he who is excluded from the honors of the state is no better than an alien.
" That is the position of appellant and the other 56 families.
If they are aliens, the donation deed dated 20th November, 1972 is illegal.
The Raja did not obtain any permission for sale from the Government.
From the records it is also clear that the Rajs had been donating the lands and wag indulging in anti social activities for which he was warned.
We do not know how the Deputy Commissioner or the Extra Assistant Commissioner ever approve of this donation without there being an express authorisation by the State.
It is an admitted fact that the place where the chakma families are residing is within the inner line notified by the State Government.
Therefore, the argument that they have cleared the forest and reclaimed the land and as such would be entitled to a permanent abode, cannot be accepted.
Now we come to the validity of the impugned order.
Mr. K.K. Venugopal, learned counsel has filed various notings and the orders from the relevant files.
From the files it is clear that there have been complaints against chakmas that they were procuring arms and ammunition and indulging in anti social activities.
The Deputy Commissioner, Tirap District on 19.8.81 wrote to the Extra Assistant Commissioner, Miao as follows: "Please refer to your report under reference, wherein it is indicated that a large number of arms and ammunitions seized from the possession of the Chakmas and are still kept in Quarterguard.
It is, therefore, requested to send us a detailed report indicating datails of arms and ammunitions seized.
422 2.It is further seen from your report regarding judicial cases, submitted to this office, that there are altogether 76 cases registered upto November, 1979 against the Chakmas and most of them were related to theft, assault and offences under Forest Act.
It is also therefore requested that more details on specific offences and results thereof may be furnished urgently.
3.The above two informations are urgently required by the Govt.
" A list of cases including ones under Section 302 I.P.C. and other offences under Section 25A of the Arms Act is enclosed to the letter quoted above.
The chakmas also encroached Upon the neighbouring area by unfair means and created trouble to the local people.
An appeal was made to the Chief Minister in 1980 itself that because of these criminal activities they should be removed.
It is not correct to state that the impugned notice came to be issued like a bolt from the blue.
The following letter of the appellant addressed to the Deputy Commissioner speaks eloquently: "With reference to the subject quoted above, 1 on behalf of the villagers of Joypur Village have the honour to draw your kind attention to the following few lines for favour of your needful action.
That, being landless in Abhoypur Village, a few Villagers consisting of fifty six families have been settled in Joypur Village in the year, 1968 with the mutual help of Sri Ningronong Rajkumar (Singphoo) and the same was approved by the then Deputy Commissioner, Khonsa in accordance with the agreement adopted by Sri Rajkumar Singphoo dated 20th Novn2.
Now, the most regretful matter is that in spite of our permanent cultivation on the area for long sixteen years.
keeping all conformities with the Govt.
as well as the neighbouring local people, we are being harassed by notice after notice to shift from the area.
On the contrary, I am to state that the land where we have been directed to shift is quite short and extremely unfit for cultivation due to which those vacant lands are not yet accupied by anybody in spite of lying considerable landless families in the said villages.
423 All documents created in regard to this matter are attached herewith for favour of your kind perusal necessary action.
Under the circumstances stated here, I earnestly pray and request you afresh to look into the matter and thereby revoke the shifting order at an early date.
I shall remain greteful to you thereor From the endorsement.
it is also seen that two representatives met the Deputy Commissioner on 13th Februaty, 1984.
Therefore, there was an oral hearing.
The above letter mentions notice after notice to shift.
It was alleged by a petition to the Chief Minister that the Extra Assistant Commissioner had been paid handsomely to allow chakma families to stay on illegally.
On 16th of November, 1982 the Extra Assisstant Commissioner called upon the Circle Officer, Diyum to issue notices to the chakms families 'staying at Joypur village to return to their original place of settlement within 31.12.82.
The survey Reports for resettlement of these chakmas dated 27.4.83 inter alia states: "Survey had been done in Maitripur and Gautampur areas where they have found 110 acres and 245 acres respectively which are liable for settlement of Chakma settlers.
" Thus, it will be clear that the reason for shifting these chakma families are: (1) They are in illegal occupation of the protected area.
(ii) They are indulging in procurement of arms and ammunition.
(iii) They are indulging in criminal activities and associating with anti social elements.
(iv) They have been source of constant/trouble to the other tribals.
As regards notice, it is seen from the above, that the very appellant had notice after notice proposing to evict which was resisted.
Therefore, as rightly urged by Mr. K.K. Venugopal, learned counsel on ground realities, the plea of natural justice is fully satisfied.
424 Ruling in Scheduled Caste and Weaker Section Welfare Association vs State of Karnataka ; affording a hearing to slum dwellers under the Karnataka Slum Areas (Improvement and Clearance) Act, 1973, relied on by Mr. Govind Mukhoty, learned counsel, has no application in the above circumstances.
Even then what is that is sought to be done to the appellants? They are asked to settle in Maitripur and Gautampur villages from Miao.
Cartainly, settling the chakmas in a particular place is a matter of policy.
This Court cannot enter into the wisdom of such a policy, in view of what has been stated above, Arunachal Pradesh is strategically important with Bhutan in the West, Tibet and China in the North and North East, Burma (Myanmar) in the East.
It is true that fundamental right is available to a foreigner as held in Louis De Raedt vs Union of India ; at 562.
"The next point taken on behalf of petitioners, that the foreigners also enjoy some fundamental rights under the Constitution of this country, is also of not much help to them.
The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19 (1) (e) which is applicable only to the citizens of this country As such Articles 19 (1) (d) and (e) are unavailable to foreigners because those rights are conferred only on the citizens.
Certainly, the machinery of Article 14 cannot be invoked to obtain that fundamental right.
Rights under Article 19 (1) (d) and (e) are expressly withheld to foreigners.
Now we come to the humanitarian grounds which prompted the High Court of Gauhati to direct compensation to the appellants in the event of their being evicted.
Blackburn and Taylor speaking on the right enjoy asylum in Human Rights for the 1990 s state at page 51 as under: "The most urgent need of a fugitive is a place of refuge.
His or her most fundamental right is to be granted asylum.
The Universal Declaration of Human Rights addressed this issue in deceptive language.
To the inexpert reader there is great comfort in Article 14 (1) of that Declaration, which provides that: 'Everyone has the right 425 to seek and enjoy in other cuntries ' asylum from persecution, it seems tolerably clear, however, that the right to enjoy asylum means no more than the right to enjoy it if is granted.
" Again at page 52 it is stated thus: "Article 14 of the Universal.
Declaration of Human Rights, which speaks of the right to enjoy asylum has to be interpreted in the light of the instrument as a whole; and must be taken to mean something.
It implies that although an asylum seeker has no right to be granted admission to a foreign state, equally a state which has granted him asylum must not later return him to the country whence he came.
Moreover, the Article carries considerable moral authority and embodies the legal prerequisite of regional declarations and instruments.
" Warwick Mckean, dealing with the equality in the treatment of aliens, states in Equality and Discrimination under International Law at pace 194 as under: "It has long been recognized that persons who reside on the territory of countries of which they are not nationals possess a special status under international law.
States have traditionally reserved the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals, e.g. the right to vote, hold public office or to engage in political activities.
Aliens may be prohibited from joining the, civil service or certain professions, or from owning some categories of property, and states may place them under restrictions in the interests of nations security or public order.
Nevertheless, once lawfully admitted to a territory, they are entitled to certain minimum rights necessary to the enjoyment of ordinary private life.
" At pages 195 196 it is stated thus: "General international law provides that aliens should not be discriminated against in their enjoyment of property rights once they have been acquired.
If alien property is nationalized whereas the property of nationals remains unaffected then that act is dis criminatory and prohibited under international law.
As Fitzmaurice points out, it has long been recognized that in certain matters, e.g. 426 the general treatment of foreigeners in a country, or compensation for property which may be expropriated or nationalized, non discrimination as between persons of different nationality or against foreigners as compared with persons of local nationality, amounts to a rule of international law, the breach of which gives rise to a valid claim on the part of the foreign government whose national is involved." Certainly, if the acquisition had been legal, compensation could have been awarded.
But in view of the Bengal Eastern Frontier Regulation, 1873 and clause 9 (2) of the Foreigners Order 1948 we do not think this is a case for award of ' compenstion.
Though we have held that the principles of natural justice have been fully complied with in this case, we record the statement made by learned counsel for the State that the Chief Minister is ready to hear the Respondents (appellants herein) or any representative of their group.
Accordingly we direct that an opportunity be afforded to the appellants by the Chief Minister and grant such relief as he deems fit.
We make it clear that it will be a post decisional hearing.
Accordingly we dismiss civil appeal arising out of SLP (C) No. 13767 of 1992 filed by Khudiram Chakma while civil appeal arising out of SLP(C) No.12429 of 1992 filed by State of Arunachal Pradesh is allowed.
However,there shall be no order as to costs.
R.P. SLP (C) No. 13767/92 dismissed.
SLP (C) No. 12429/92 allowed.
[/INST]The appellant in Civil Appeal No.481 of 1983, and thousands of other families, known as Chakmas, migrated from the erstwhile East Pakistan to Assam where they were given shelter as refugees in 1964.
In the year 1966 the Government drew up the Chakma resettlement Schemes whereunder they were allotted lands within the North East Frontier Agency, which later became State of Arunachal Pradesh.
The appellant and 56 other Chakma families strayed away from the original settlement area and negotiated with the local Raja who through an unregistered deed donated land to them inside the inner line which was a protected area under the Foreigners ' Protection Area Order 1958.
Later, the State Govenment received complaints that the 402 Chakmas were making encroachment on lands of local people, indulging in illegal collection of arms and ammunition and establishing contacts with the extremist groups.
An inquiry into the matter was directed.
The Government found it necessary to shift them, and by order dated 15.2.1984 directed the appellant and the other Chakma families to vacate the land and to shift to the original settlementarea where other Chakma families were already` residing.
The appellant challenged the order before the High Court by filing a writ petition which was dismissed.
However, the High Court, on humanitarian grounds, directed the State Government to give adequate compensation to the Chakmas.
Both, the appellant and the State Government filed the appeals by special leave.
It was contended on behalf of the appellant that the appellant and the other Chakmas being of Indian origin and having returned to Assam State in 1964, would be entitled to citizenship under Section 6A of the , and by mere accident of their going to Arunachal Pradesh they cannot lose their citizenship; and that the order dated 15.2.1984, besides being against the principles of natunal justice, was violative of Article 14 of the Constitution as it infringed the rights of the appellant and other Chakmas under Articles 19(1) (d) and (e) of the Constitution.
Dismissing the appeal on behalf of the Chakmas and allowing that of the State, this Court, HELD : 1.1 The appellant and other Chakmas residing in Arunachal Pradesh long before 1985 cannot be regarded as citizens of India.
[420 H] 1.2 Under Section 6 A of the , which was incorporated by the Amending Act, 1985 as a result of Assam Accord, two conditions are required to be satisfied: (1) Persons of Indian origin (undivided India) who came before 1.1.1966 to Assam from the specified territory; and (2) they have been "ordinarily resident" in Assam as it existed in 1985 since their date of entry in Assam.
[411 G H; 412 A] 1.3 Though the appellant and other Chakmas were of Indian origin and came to Assam prior to 1.1.1966 from the then East Pakistan, one of the specified territories but, in 1966 they shifted to the area within North East Frontier Agency which later became State of Arunachal Pradesh, and at no time was part of the Territory of the State of Assam though was being administered by the Governors of Assam or the President of India, as the case 403 may be.
Besides, bt the , the territories of Arunachal Pradesh were excluded from the purview of the Immigrants (Explusion from Assam) Act, 1950.
The appellant and the other Chakmas were residing in Arunachal Pradesh long before 1985, and as such cannot be said to be "ordinarly resident" in Assam as it existed in 1985 since their date of en try in Assam.
(420 A F) Smt.
Shanno Devi vs Mangal Saini ; , relied on.
1.4 If the law lays down certain conditions for acquiring citizenship, the same cannot be disregarded.
(421 A) Kennedy vs Mendoza Martinez ; ,159 [1963], referred to.
Arstotle, Politics, III, 5, referred to.
2.The place where the Chakma families are residing is within the inner line notified by the State Government.
The place is the protected one under the Foreigners 'Protection Area Order, 1958, wherein acquisition of any land or any interest thereon by any foreigner is prohibited as envisaged by clause section 7 of the Bengal Eastern Frontier Regulation, 1873 and Clause 9(2) of the Foreigners ' Order 1948 issued under Section 3 of the .
(410 DE) 2.2Accordingly, the donation deed through which the Raja gave land to the appellant and the other Chakmas is illegal.(421 D) 2.3Unlike article 21, rights under Articles 19(1) (d) and (e) of the Constitution are unavailable to foreigners because these rights are conferred only on the citizens and are expressly withheld to foreigners.
The machinery of Article 14 cannot be invoked to obtain that fundamental right.(424 E) Indo China Steam Navigation Co. vs Jasjit Singh, [1964]6 SCR 594 at 621 to 622, followed.
Louis De Raedt vs Union of Indian ; , referredto.(412 CD) 404 3.1 Settling the Chakmas in a particular place is a matter of policy.
This Court cannot enter into the wisdom of such a policy.
Besides, the reasons for shifting the Chakma families are : they are in illegal occupation of the protected are, they are indulging in procurement of arms and anununitions and other criminal activities; they are associating with anti social elements, and have been source of constant trouble to the local tribals.
Arunachal Pradesh being a Border State is stategically important (424B, 423EFG) 4.
In the instant case, the principles of natural justice were fully complied with.
It cannot he said that the order dated 15.2.1984 for shifting the Chakmas came to be issued like 'a bolt from the blue '.
The record mentions that before passing of the shifting order, notice after notice were issued to chakma families to return to their original place of settlement.
Survey Reports for their settlement were submitted and representation were made to the authorities concerned who gave oral hearing to the representatives of Chakmas.
(412 GH) Scheduled Caste and Weaker Section Welfare Association vs State of Karnataka, [1991]2 SCC 604, inapplicable.
R. vs Secretary of Stale for the Home Department, ; Brind vs Secretary of State ; ; Council of Civil Service Unions vs Minister for the Civil Service; ; ; McInnes vs onslow Farme & Anr., D) p. 219; JR Vohra vs India Export House pvt.
Ltd.; , ; Maharashtra State Board of Secondary & Higher Education vs K.S. Gandhi, and Satya Vir Singh vs Union of India, , referred to.
5.1 In view of the Bengal Eastern Frontier Regulation, 1873 and Clause 9(2) of the Foreigners 'Order 1948 the acquisition of the land being illegal, the instant one is not a case for award of compensation.
(426 C) 5.2 However, having regard to the statement made on bahalf of the State that the Chief Minister is ready to hear the Chakmas, an opportunity be afforded to them by the Chief Minister who may grant such relief as may be deemed fit.
It is made clear that it will be a post decisional hearing.
(426 D) 405 Blackburn and Taylor on the right to enjoy asyum in Hussan Rightsior the 1990s, 'Equality and Discrimination under International Law ' by Warwick Mckean, referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 763 of 1977.
From the Judgment and Order dated 30.7.1976 of the Calcutta High Court in Appeal No. 167 of 1972.
Raja Ram Agrawal, K.B. Rana and Praveen Kumar for Khaitan & Co. for the Appellant.
A. Subba Rao, P. Parmeshwaran and A.D.N. Rao for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been preferred against the judgment dated 30th July, 1976 of the Calcutta High Court in Appeal from Original Order No. 167/1972.
The facts in nutshell necessary for the decision of this appeal are that the Appellant Company, a licensee under the Central Excise and Salt Act, 1944 (hereinafter referred to as the Act) carried on during the relevant time, namely, 1st September, 1961 to 26th September, 1963, business of manufacturing different types of glasswared which were excisable goods under the Act.
The appellant used to present A.R.I. forms accompanied with price list of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods.
The appellant 's office was searched by the Excise Authorities on 26 September, 1963 and several documents, books and papers were seized.
As a consequence of this search and seizure it transpired that the appellant was maintaining two sets of bills.
The bills of one set were those on the basis of which the appellant used to pay excise duty 46 before clearance of the goods and those of the other were such which were never issued to the dealers.
In these two sets of bills inter alia the rate of discount was differently shown.
A notice dated 26th March, 1968 was served on the appellant by the Assistant collector of Central Excise, Calcutta II Division, Calcutta stating that it appeared that the appellant had, during the relevant period, not paid excise duty on the goods at the prices at which they were sold but duty was paid at lower rates declared by it.
The appellant was required to show cause as to why duty amounting to Rs. 1,43,633.84 p. on the prices at which the goods were actually sold, as found on scrutiny of sale vouchers/sale documents should not be recovered under rule 10A of the Central Excise Rule, 1944 (hereinafter referred to as the Rules.) The appellant, in reply to the show cause notice, inter alia asserted that it was the provisions of Rule 10 and not Rule 10A of the Rules which were attracted to the facts of the instant case and that consequently the initiation of proceedings against the appellant was barred by time.
This plea did not find favour with the Excise Authorities and the appellant was required, by order dated 26th August, 1968, to pay to the Central Government, an additional duty of Rs. 1,41,829.11 p.
This order was challenged by the appellant before the High Court under Article 226 of the Constitution of India.
A learned Single Judge of the High Court accepted the contention of the Rule 10 and not Rule 10A of the Rules was applicable and on this view the order dated 26th August, 1968 was quashed.
Aggrieved by that order, the respondents preferred an appeal before a Division Bench of the High Court.
The judgment of the learned Single Judge was reversed and on the finding that it was a case falling under Rule 10A, the writ petition was dismissed by the judgment under appeal.
The only point which has been urged by learned counsel for the appellant in support of this appeal is that the learned Single Judge was right in taking the view that the case fell within the purview of Rule 10 of the Rules and the Division Bench committed an error in reversing his judgment.
For the respondents on the other hand, it has been urged that on the fact found by the division Bench and indeed on the case set up by the appellant itself no exception could be taken to the finding of the Division Bench that it was Rule 10A of the Rules and not Rule 10 which was attracted to the facts of the instant case.
In order to appreciate the respective submissions made by learned counsel for the parties it would be useful to extract Rules 10 and 10A.
They read as hereunder: "10.
Recovery of duties or charges short levied or errones 47 ously refunded When duties or charges have been short levied through inadvertence, error, collusion or misconstruction on the part of an officer, or through mis statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owning to such cause, erroneously refunded, the person chargeable with the duty or charge so short levies, or to whom such refund has been erroneously made, shall pay the deficiency or the amount paid to him in excess as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owners ' account, current, if any, or from the date of making the refund." "10A. Residuary powers for recovery of sums due to Government Where these Rules do not make any specific provision for the collection any duty, or of any deficiency in duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall on a written demand made by the proper officer, be paid to such person and at such time and place as the proper officer may specify.
In elaboration of his submission that it was a case covered by Rule 10 of the Rules learned counsel for the appellant pointed out that since the case of the respondents was that on the basis of the documents seized during the search of the appellant 's office on 26th September, 1963 it was found that the duty paid by the appellant on the basis of price lists furnished by the appellant at the time of clearance of the goods was deficient, it was a case where duty had been short levied "through mis statement as to the quantity, description or value of such goods on the part of the owner" as contemplated by Rule 10.
We find it difficult to agree with the submission.
The procedure adopted by the appellant/was indicated by the appellant under its letter dated 23rd March, 1961, a portion whereof as extracted by the learned Single Judge reads as hereunder: "We enclose herewith our three price lists for 1) Bottles and phials 2) Glass Wares and 3) Fancy Wares for the purposes of provisional assessment.
These price are inclusive of Central Excise duty.
As regards Trade discounts to 48 be deducted from the said prices as per Section 4 of the Act we declare that 1) 25% should be deducted from the price list for bottles and phials.
2) 35% from the price list for glass wares and 3) 20% from the price list for fancy wares over and above necessary deduction for Central Excise duty included in the prices.
" The learned Single Judge has also pointed out that the appellant used to clear the goods by executing bond and that in the specimen copy of the bond produced in court it was stated that whereas final assessment of excise duty of glass and glasswares made by the appellant from time to time could not be made for want of full particulars as regards value, description, quality or proof thereof or for non completion of chemical or other tests and whereas the appellant had requested the Excise Authorities as per Rule 9B of the Rules to make provisional assessment of excise duty of the goods pending final assessment, the appellent was giving a guarantee to the extent of the sum mentioned in the bond for payment of the duties.
The learned Single Judge has also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by Excise Authorities, the appellant used to file the price list in advance and after acceptance provisionally of the price list, the goods used to be cleared and if subsequently and discrepancy was detected or found, the same used to be paid by the appellant.
The question as to whether Rule 10 or Rule 10A of the Rules was applicable has to be determined in the background of the appellant as indicated above.
The legal position that Rule 10A does not apply where the case is covered by Rule 10 of the Rules is well settle in view of the decision of this Court in N.B. Sanjana vs Elphinstone Mills, ; , on which reliance has been placed by learned counsel for the appellant.
Consequently, Rule 10A could be attracted only if the case does not fall within the purview of Rule 10.
It was conceded before the learned Single Judge on behalf of the respondents that the respondents were not proceeding under the provision of Rule 9B.
On this basis and on his own finding also that Rule 9B was not attracted, the learned Single Judge held that it was not a case of provisional assessment but a case of regular assessment in pursuance whereof duty was paid by the appelant and that since the case of the respondents was that the appellant had manufactured documents as was revealed as a consequence of the search and seizure referred to above it was a case of short levy due to mis statement by the appellant.
Consequently, the case clearly fell 49 within the purview of Rule 10 of the Rules.
The Division Bench of the High Court in appeal did not, and in our opinion rightly, subscribe to the aforesaid finding.
Simply because Rule 9B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment could be said to have come into existence in its statutory sense as contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had come into being at that time.
In our opinion, in view of the procedure adopted by the appellant referred to above it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent varification and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent verification.
In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood in the eye of law but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of an incomplete assessment which the Excise Authorities were entitled to complete under Rule 10A.
In taking this view the Division Bench of the High Court has relied on a decision of this Court in Assistant Collector of Central Excise, Calcutta Division vs national Tobacco Co. of India Ltd.; , In that case also the Company used to furnish quarterly price lists which used to be accepted for purpose of enabling the Company to clear its goods and according to the Excise Authorities these used to be verified afterwards by obtaining evidence of actual sale in the market before issuing final certificates that the duty had been fully paid up.
The prices of the goods to be cleared were furnished by the Company on forms known as A.R.I. forms in that case also.
It was held that only a mechanical adjustment for settlement of accounts by making debit entries was gone through and that it could not be said that any such adjustment was assessment which was a quasi judicial process and involved due application of mind to the fact as well the requirements of law.
With regards to the debit entries it was held that the making of such entries was only a mode of collection of tax and even if payment or actual collection of tax could be spoken of as a de facto "levy" it was only provisional and not final.
It could only be clothed or invested with the validity after carrying out the obligation to make an assessment to justify it.
It was also held that it was the process of adjustment that really determined whether levy was short or complete.
It was not a factual or presumed levy which could in 50 a disputed case prove an "assessment.
" This had to be done by proof of the actual steps taken which constitute assessment.
We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of national Tobacco Co. of India Ltd. (supra) it is not possible to take any exception to the finding of the Division Bench in the judgment appealed against that it was a case which fell within the purview of Rule 10A and not Rule 10 of the Rules.
In the result, we find no merit in this appeal.
It is accordingly dismissed with costs.
N.V.K. Appeal dismissed.
[/INST]The appellant company a licensee under the central Excises and Salt Act, 1944 and during the relevant period namely 1st September, 1961 to 26th September, 1963 carried on the business of manufacturing different types of glass wares which were excisable goods under the Act.
The appellant used to present A.R.I. forms accompanied with price lists of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods.
The office of the appellant was searched by the Excise Authorities on 26th September, 1963 and several documents, books and papers were seized, and as a consequence thereof it transpired that the appellants were maintaining two sets of bills.
The bills of one set were those on the basis of which the appellant used to pay excise duty before clearance of the goods and those of the other were such which were never issued to the dealers.
In these two sets of bills, the rate of discount was differently shown.
A notice dated 26th March, 1968 was served on the appellant by the Assistant Collector stating that it appeared that during the relevant period the appellant had not paid excise duty on the goods at the prices at which they were sold, but duty was paid at lower rates and requiring it to show cause as to why duty on the prices at which the good were actually sold, as found on scrutiny of sale vouchers/sale documents should not be recovered under Rule 10A of the Central Excise Rules, 1944.
In reply the appellant asserted that it was the provision of Rule 10 and not Rule 10A which was attracted to the facts and consequently the initiation of proceedings was barred by time.
This plea did not find favour with the Excise Authorities, and the appellant was required to pay the additional duty of Rs. 1.41 lakhs.
The aforesaid order was challenged by the appellant before the 44 High Court under Article 226 of the Constitution and a Single Judge accepted the contention of the appellant the Rule 10 and not Rule 10A of the Rules was applicable and on this view quashed the order dated 26th August, 1968 The respondents preferred and appeal to the Division Bench which has reversed the order of the Single Judge, on the finding that it was a case falling Rule 10A and dismissed the writ petition.
In the appeal to this Court it was contended that the single Judge was right in taking the view that the case fell within the purview of Rule 10 of the Rules and that the Division Bench committed an error in reversing the Judgment, while the Revenue contested the appeal urging that on the facts found by the division Bench, and indeed on the case set up by the appellant itself no exception could be taken to the finding of the Division Bench that it was Rule 10A and not Rule 10 which was attracted to the facts of the case.
Dismissing the Appeal, this Court, HELD: 1.
The question as to whether Rule 10 or Rule 10A was applicable has to be determined in the background of the procedure which was followed.
The legal position is that Rule 10A does not apply where the case is covered by Rule 10 of the Rules.
[48E] N.B. Sanjana vs Elphinstone Mills, ; relied on.
Simply because Rule 9B of the Rules, was conceded not to have been taken recourse to by the respondents so that provisional assessment could be said to have come into existence in its statutory sense as contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had came into being at that time.
[49A B] 3.
In view of the procedure adopted by the appellant it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification, and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent varification.
[49B C] 4.
The Division Bench of the High Court has found that there was no assessment as is understood in the eye of law, but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of incomplete assessment which the Excise Authorities were entitle to complete under Rule 10A.[49D] Assistant Collector of Central Excise, Calcutta Division vs National Tobacco Co. of India Ltd., ; , referred to.
The instant case therefore falls within the purview of Rule 10A and not Rule 10 of the Rules.
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<s>[INST] Summarize the judgementCivil Appeal Nos.
68 of 1974 and 936 of 1975.
Appeals by Special Leave from the Judgment and order dated 5 11 1973 of the Punjab & Haryana High Court in Sales Tax Reference Nos. 12 and 11 of 1969.
Desai, (In CA No. 936/75), P. C. Bhartari, R. Narain, K. J. John, O. C. Mathur for the Appellants.
B. Sen, (In CA No. 68/74), and R. N.Sachthey for the Respondent.
P. C. Bhartari for Applicant/Interveners (In CA No.68/74).
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is on the question whether the appellant is exempt from inter State tax on the sales of poles and cables to the Delhi Electric Supply Undertaking by reason of the provisions contained in section S(2)(a)(iv) of the Punjab Sales Act hereinafter referred to as the State Act.
Section 5(2) (a) (iv) of the State Act is as follows: "5(2) In this Act the expression "taxable turnover" means that part of a dealer 's gross turnover during any period which remains after deducting therefrom (a) his turnover during that period on (iv) sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the , of goods for use by it in the generation or distribution of such energy.
" Under section 8 of the hereinafter referred to as the Central Act, every dealer, who in the course of inter State 994 trade or commerce sells to the Government any goods; or sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under this Act, which shall be three per cent of his turnover.
The provisions in section 8(2A) of the Central Act are as follows : "Notwithstanding anything contained in sub section (1A) of section 6 or sub section (1) or sub section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than three per cent, (whether called a tax of fee or by any other name), shall be nil or, as the case may be, shall be calculated at the lower rate.
EXPLANATION: For the purposes.
, of, this sub section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the ' appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.
" The contention on behalf of the appellant is that by reason of the Explanation to section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act the appellant is exempt from payment of inter State sales tax.
The words "goods for use by it in the gene ration or distribution of such energy" occurring in section S (2) (a) (iv) of the State Act are said by counsel for the appellant to be descriptive of the goods.
In short, the appellant 's contention is that goods for use by the undertaking supplying electrical energy are generally exempt from taxation, and, therefore, they should not be included in the turn over.
The contention on behalf of the State is that the exemption granted under section 5(2)(a)(iv) of the State Act is exemption in specified circumstances and under specified conditions.
The specified circumstances are said to be sales to an undertaking supplying electrical energy to the public under the .
The specified conditions are that the goods are for use by the undertaking in the generation or distribution of such energy.
The answer to the question in this appeal is whether the exemption mentioned in section 5(2) (a) (iv) of the State Act is in specified cir circumstance or under specified conditions, as the Case may be, or it is a general exemption as the appellant contends in cases of sales of goods to an Electric Supply Undertaking for use by it in the generation or distribution of such energy.
995 The appellant referred to Schedule read with section 6 of the State Act and in particular Items 33 and 46 to illustrate what would be exemption under specified circumstances or specified conditions.
In Schedule there are two columns.
The first column describes the goods.
The second column describes the conditions which make the goods tax free.
In Item 33 in Schedule "Photographs including Xrays photographs" mentioned in the first column are tax free "when sold by photographers and radiologists preparing them" as mentioned in the second column.
In Item 46 "hand spun yarn" mentioned in the first column becomes tax free "when sold by one who deals in hand spun yarn exclusively" as mentioned in the second column Section 5(2) of the State Act deals with taxable turnover.
There is no dispute that electricity poles and cables sold to the undertaking supplying electric energy are exempt under the State Act from being included within the taxable turnover.
The question is whether such sales made in the course of inter State trade are also exempt from the levy of Central Sales Tax.
The appellant contends that the exemption in the State Act is general because exemption applies in respect of goods without any enumeration or classification of goods.
Further, it is said that exemption is general because the sales are for use in generation and distribution of electrical energy.
According to the appellants sales of all goods to the undertaking supplying electrical energy are exempt from being included in the taxable turnover as long as the goods answer the description that they are for use in the generation or distribution of electrical energy.
The appellant relied on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh vs Kapoor Dori Niwar & Co., Gwalior(1) tn support of the meaning of the expression "exempt from tax generally".
In the Madhya Pradesh case (supra) the State Government issued a notification in the year 1959 exempting from the payment of sales tax for a period of one year sales of niwar by a dealer registered under the 1958 relevant State Act.
The exemption was later on extended up to 31 March, 1963.
The assessee a registered dealer claimed exemption on inter State sales of niwar.
The Madhya Pradesh High Court held that during the period of the exemption, the sales of niwar by a registered dealer were exempt from tax generally within the meaning of section 8(2A) of the Central Act, and, therefore, the assessee 's inter State sales of niwar were exempt from tax under the Central Act.
The expression "exempt only in specified circumstances or under specified conditions" occurring in the Explanation to section 8(2A) of the Central Act was held to mean such circumstances or conditions the non existence or non performance of which precludes the grant of exemption.
In other words, if those circumstances do not exist or those conditions are not performed then the sales of goods cannot be exempted from tax even if they are effected by a class of dealers to whom exemption is granted and during the period for which exemption is granted.
996 In the Madhya Pradesh case (supra) there was no dispute that the sales effected by the assessee fell under section 8(1) of the Central Act.
The State Act granted exemption from sales tax on sales of niwar effected by a registered dealer.
The exemption granted to sales by a registered dealer under the notification was without any restriction or limitation so far as sales by a registered dealer were concerned.
Though the period of exemption was fixed, it was not regarded as a condition imposed in relation to the exemption.
It was also contended there that because the exemption was granted to the registered dealers the exemption was granted to a class of dealers, and, therefore, it should be construed to be an exemption in specified circumstances or under specified conditions.
The Court repelled the contention by stating that the exemption was to all registered dealers without any restriction or condition.
The other decision on which the appellant relied is of the Allahabad High Court in Hindustan Safety Glass Works (P.) Ltd. vs The State of Uttar Pradesh & Anr.(1) In the Safety Glass Works case (supra) the company manufactured toughened glasses and mirrors in its factories.
Under a notification issued by the State Government under the State Act sales of mirrors and safety glasses were liable to sales tax either at the point of sale by the importer of such goods or at the point of sale by the manufacturer thereof.
Subsequently, a notification was issued by the State Government exempting toughened glasses and mirrors manufactured by the company at Allahabad from payment of sales tax for a period of three years.
The company claimed that the turnover of sales of toughened glasses and mirrors manufactured by it, being generally exempt from tax under the State Act, was also not liable to Central Sales Tax because of the provisions contained in section 8(2A) of the Central 'Act.
It was held that for purposes of section 8(2A) of the Central Act, sale of mirrors and toughened glasses manufactured by the company was under no condition and in no circumstance liable to be taxed in the hands of the company.
The reasons given were that normally it will be taken that the sale of mirrors and toughened glasses by the company was exempt from to the generally unless it could be shown that such goods belonged to the class specified in the Explanation to section 8(2A) of the Central Act.
As the toughening glasses and mirrors manufactured by the company did not fall in such a category the turnover of the sales of those goods in the hands of the company was not liable to tax under the Central Act.
The stipulation in the notification in the Safety Glass Work case (supra) that the turnover of such sales would for a period of three years be exempt from payment of sales tax did not amount to exempting the turnover of such goods from tax under specified circumstances or specified conditions.
Section 6 of the State Act does not speak of exemption, but deals with tax free goods.
In other words, section 6 deals with specified goods on which no tax is payable.
Section S of the State Act deals with what has to be excluded from the taxable turnover of the dealer.
997 Both the sections deal with goods which do not suffer from sales tax.
A Section 8(2A) of the Central Act exempts goods from inter State sales tax where a tax law of the State has exempted them from sales tax.
The Explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions.
The provisions contained in section 5 (2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions.
The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the .
The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy.
If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax.
General exemption means that r the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available.
Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.
The contention of the appellant that the words "in the generation or distribution of such energy" in section 5(2)(a)(iv) of the State Act are descriptive of goods is unacceptable.
The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.
For these reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act.
The appeal is dismissed.
In view of the fact that the High Court directed the parties to pay and bear their own costs, similar order is made here.
S.R. Appeal dismissed.
[/INST]Under section 5(2)(a)(iv) of the Punjab Sales Tax Act "taxable turnover" meant that part of a dealer 's gross turnover during any period which remains after deducting therefrom, his turnover during that period on sales to any undertaking supplying electrical energy to the public under a licence or sanction granted under the , of goods for use by it in the generation or distribution of such energy.
Under section 8 of the Central Sales Tax, every dealer.
who in the course of inter state trade or commerce sells to the Government any goods: or sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under the Act, which shall be three per cent of his turnover.
Section 8(2A) reads as follows: "Notwithstanding anything contained in sub section (1A) of section 6 or sub section (1) or sub section (2) of this section, the tax pay able under this Act by a dealer on his turnover in so far as the turn over or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate state, exempt, from tax generally, or subject to tax generally at a rate which is lower than three per cent.
(whether called a tax or fee or by any other name), shall be nil or, as the case may be shall be calculated at tho lower rate.
Explanation: For the purpose of this sub section or sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate state, if under the law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.
" The appellants were suppliers of poles and cables to the Delhi Electric Supply Undertaking and the sales were in the course of inter state trade or commerce and admittedly exempt under the state sales tax u/s 5(2) (a) (iv).
The state assessed tax u/s 8 of tho on the ground that the exemption granted u/s 5(2)(a)(iv) of the state Act fell under Explanation to section 8(2A) of the .
The High Court held that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(1A) of the Central Act read with Section 5(2)(a)(iv) of the State Act.
Dismissing the appeal, by special leave, the Court.
^ HELD: (I) General exemption means that goods should be totally exempt from tax before similar exemption from the levy of central sales tax can become available.
Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.
Section 6 of the State Act does not speak of exemption but deals with tax free goods.
Section 6 deals with specified goods on which no tax is payable.
993 Section 5 of the State Act deals with what has to be excluded from taxable turnover of the dealer.
Both the sections deal with goods which do not suffer from Sales tax.
Section 8(2A) of the Central Act exempts goods from inter State Sales tax where a tax law of the state has exempted them from sales tax.
The explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions.
The provisions contained in section 5(2) (a) (iv) of the state Act exclude sales which are made under specified circumstances or specified conditions.
The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the .
The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy.
If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax.
The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.
[996H, G97A D] Commissioner of Sales Tax, M.P. vs Kapoor Dari Niwar & Co., Gwalior 22 STC p. 152; Hindustan Safety Glass Works (P) Lrd.
vs The State of U.P. and Anr.
34 STC 209, discussed.
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<s>[INST] Summarize the judgementns Nos. 154 and 203 of 1966.
Petition under article 32 of the Constitution of India for the enforcement of fundamentals rights.
section K. Mehta, and K. L. Mehta, for the petitioners (in both the petitions).
N. section Bindra, A. Sreedharan Nambiar , R. H. Dhebar for R. N. Sachthey, for respondent No. 1 (in W. P. 154 of 1966).
1. M. Lall and E., C. Agrawala, for respondent No. 2 (in W.P.No. 154 of 1966).
R. H. Dhebar for R. N. Sachthey, for respondents Nos.
I and_ (in W.P. No. 203 of 1966).
H. R Gokhale and E. C. Agarwala, for respondent No. 6 (in W.P. No. 203 of 1966).
Respondent No. 10 appeared in person (in W.P. No. 203 of 1966).
Ramaswami, J.
In this case the petitioner, Roshan La1 Tandon has obtained a rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under article 32 of the Constitution of India should not be issued commanding the respondents not to carry out the directives contained in the notification of the Railway Board No. E(NG)65 PMI 26 dated the 27 the October, 1965, Annexure 'D ' to the Writ Petition, in so far as it grants protection to the existing Apprentice Train Examiners and lays down the procedure to fill upgraded vacancies.
Cause has been shown by, the respondents to whom notice of the rule was ordered to be given.
There were originally two scales for Train Examiners Rs. 100 185 ( 'D ' Grade) and Rs. 150 225 ( 'C ' Grade).
These scales were later revised as a result of the recommendations of the Second Pay Commission and the scale of 'D ' Grade was increased to Rs. 180 240 and that of 'C ' Grade to Rs. 205 280.
On February 18, 1961 the Railway Board issued a letter No. PC 60/PS5/ TP 8, Annexure 'A ' to the Writ Petition to the General Managers 187 of all Indian Railways conveying its decision that vacancies in the Entry Grade of Train Examiners (in the scale Rs. 180 240) with effect from February 18, 1961 should be filled as follows: (i) 50% of the vacancies should be filled from Apprentice Train Examiners who successfully have completed the prescribed (4 years) apprenticeship, the remaining 50% of the vacancies being filled by promotion of skilled artisans.
(ii) 20 /1/O of the annual requirements of Apprentice Train Examiners should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which the apprenticeship is likely to commence.
" Promotion to Grade 'C ' of Train Examiners used to take place on the basis of seniority cum suitability without any distinction whether the employee entered Grade 'D ' of the Train Examiners directly or was selected out of the category of skilled artisans.
This rule was laid down by the Railway Board in its letter No. E(S) 1 57 TRS/41, dated January 25, 1958 which states: "Ref : Para 2 of Board 's letter No. E(R) 49 JAC / 13 dated 23 2 50 laying down that 20% of the posts in the TXR grade Rs. 150 225 should be reserved and the TXR in the grade of Rs. 80 160 (since revised Rs. 100 185) promoted from skilled and semi skilled ranks.
The Board have reviewed the position and have decided that promotion to the TXR grade of Rs. 150 225 should hereafter be made solely on the basis of seniority cum suitability and the reservation of only 20% as mentioned above will no longer be operative." (Annexure 'B ' to the Writ Petition).
On the basis of this rule the Divisional Personnel Officer, New Delhi, prepared a seniority list for the Train Examiners of Grade 'D ' of Delhi Division as on December 31, 1964 (Annexure 'C ' to the Writ Petition). 'On October 27, 1965 the Railway Board issued the impugned notification (Annexure 'D ' to the Writ Petition).
The notification states in the first place that on and from April 1, 1966 vacancies in the Entry Grade of Train Examiners scale Rs. 120 240 should not be filled from Apprentice Train Examiners upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff With regard to the next higher grade i.e., Grade 'C ', it was provided that 80% vacancies should be filled by Apprentice Train Examiners who had successfully completed the prescribed training of 5 years (three years in case of Diploma Holders and three years in case of Artisan recruited as Apprentice Train Examiner).
Twenty per cent of the vacancies were to be filled by the Train Examiners from Grade 'D '.
It was 188 further provided that the Train Examiners Grade 'D ' who began as Apprentice Train Examiners and who were to be absorbed in the 'C ' Grade against 80% vacancies reserved for them should not be required to undergo selection before being absorbed in that grade.
As regards 20% vacancies reserved for the other class of Train Examiners the promotion was to be on selection basis.
The materials portion of the notification of the Railway Board dated October 27, 1965 is reproduced below: "RECRUITMENT: (i) Vacancies in the entry grade of Train Examiners in the authorised scale Rs. 180 240 should not be filled from apprentice TX Rs. upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff.
(ii) (a) Vacancies in the next higher grade Rs. 205 280 (AS) should be filled from amongst X X the TXRs in grade Rs. 180 240 (AS) to the extent of 2O%.
(b) The remaining 80% vacancies should be filled by Apprentice TX Rs. who have successfuly completed prescribed apprenticepship mentioned in para 2 below.
(c) 25% of the annual requirements of apprentice TXRS.
should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which apprenticeship is likely to commence.
The instructions contained in Board 's letter No. 2(NG) 61MI/101 dated 6 6 62 should be kept in view.
Training 2.
The Appentice TXRs recruited on and from 1/4/66 shall be given a training for a period of five years (three years in the case of diploma holders).
From the same date artisans in lower grades (recruited as apprentice TXRS.) shall be given 'in service ' training for period of three years.
Instructions regarding a revised syllabus for the training of the Apprentice TXRS.
will follow: DISTRIBUTION OF POSTS IN DIFFERENT GRADE Fifty per cent of existing posts of TXRs in grade Rs. 180 240 which were required to be earmarked for(Apprentice TXRS.
in terms of Board 's letter No. PC 60/ PS 6/TP 8 dated 18 2 1961 should be upgraded to scaleRs.
205 280.
189 REVISED DESIGNATIONS AND CLASSIFICATION OF POSTS OF TXRS.
Designation Scale of Pay Classification T. X. Its.
Grade D ' 180 240Non selection T. X. Rs. Grade 'C ' 205 280Selection for promotees from grade ID ' T. X. Rs. Grade 'B ' 250 380Selection T. X. Its.
Grade 'A ' 335 425Non selection Head T. X. Rs. 370 475 Selection Chief T. X. Rs. 450 575 Selection Carriage Foreman Protection to the existing apprentice TXRS.
procedure fill upgraded vacancies.
It has also been decided that with effect from 1 4 66 all the Apprentice TXRS.
(Diploma holders as well as others) on successful completion of their training should be straightaway brought on to the scale Rs. 205 280 (AS) instead of being first absorbed in scale Rs. 180 6 240 as at present.
Consequenty they should be allowed stipend in scale Rs. 180 6 210 during the period of their training.
As regards the apprentice TXRS.
who are undergoing training at present, and will not be brought on to the work working posts before 1 4 66, it has been decided that from the date of this letter, they should be allowed stipend in scale Rs. 180 6 210 during the remaining period of their training.
Their period of training should also be increased to 5 years, on completion of which they should be put on to the working posts in scale Rs. 205 280 (AS).
The Apprentice TXRS.
who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 against the quota of 80% vacancies reserved for them.
Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade.
The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRS.
in scale Rs. 180 240 on a selection basis.
While computing the number of posts available for promotion of TXRS.
in scale Rs. 180 240 the vacancies likely to occur during the period 190 of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account.
In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66, who cannot be absorbed in the anticipated vacancies which will arise by the time they qualify.
" The petitioner, Roshan Lal Tandon entered railway service on March 6, 1954 as skilled fitter on the Northern Railway.
He was selected for the training for the post of Train Examiner Grade 'D ' on June 5, 1958 and was confirmed in that grade on October 25, 1959.
The case of the petitioner is that he alongwith the direct recruits formed one class in Entry grade 'D ' and their condition of service was that seniority was to be reckoned from the date of appointment as Train Examiner in Grade 'D ' and promotion to Grade 'C ' was on the basis of seniority cum suitability test irrespective of the source of recruitment.
It was alleged that there was no difference between the apprentices and those selected out of the skilled artisans when they entered Grade 'D ' and that portion of the impugned notification which gave a favourable treatment to the direct recruits in Grade 'D ' with regard to promotion to Grade 'C ' was arbitrary and discriminatory and violated the guarantee under articles 14 and 16 of the Constitution.
It was contended that the petitioner having been brought to grade 'D ' by undergoing the necessary selection and training and having been integrated with the others who had been brought in through direct recruitment in grade 'D ' could not be differentiated for the purpose of promotion to the senior Grade 'C '.
The petitioner has therefore moved this Court for the grant of a writ under article 32 of the Constitution to quash the notification of the Railway Board dated October 27, 1965.
In the counter affidavit respondent No. 1 has denied that there was any violation of the guarantee under articles 14 and 16 of the Constitution.
It was conceded that prior to April 1, 1966 promotion to the post of Grade 'C ' Train Examiner was on the basis of seniority cum suitability but the impugned notification was issued by the first respondent because it Was decided that the posts of senior Train Examiners in Grade 'C ' should be filled by men possessin adequate technical knowledge and so the period of training of senior Train Examiners was increased and it was decided that in future 80 per cent of the vacancies in 'C ' grade should be filled directly by Apprentice Train Examiners and the remaining 20 per cent was to be made available for recruitment from the category of Train Examiners to which the petitioner belonged.
This recruitment of 20 per cent vacancies was to be made on the basis of merit.
It was said that the reorganisation of the Service was made with a view to obtain a better and more technically trained class of Train Examiners.
The reason was that 191 there were more complicated designs.
of Carriages and Wagons, acquisition of modern type of Rolling Stock and greater speed of trains under dieselisation and electrification programmes.
It was.
considered that there should be a better calibre of technically trained and technically qualified personnel for proper maintenance and safety of the Rolling Stock.
In view of the decision to recruit Apprentice Train Examiners directly in 'C ' Grade with effect from April 1, 1966 those who were Apprentice Train Examiners in Grade 'D ' before that date had to be upgraded in the scale of Rs. 205 280.
It was therefore thought that these posts should be upgraded "so that there should be parity of treatment with the Apprentice Train Examiners who were to join after April 1, 1966".
The first respondent has also controverted the allegation of the petitioner that the procedure outlined in the impugned notification dated October 27, 1965 in regard to the upgraded vacancies was discriminatory.
The main question to be considered in this case is whether the notification by the first respondent dated October 27, 1965 is violative of articles 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade 'C '.
According to the impugned notification the existing Apprentice Train Examiners who had already been absorbed in grade 'D ' by March 31.
1966 should first be accommodated in grade 'C ' in 80% of the vacancies reserved for them without undergoing any selection.
With regard to 20% of the vacancies there is a reservation in favour of the departmental Train Examiners, but the promotion is by selection and not by the test of seniority cum suitability which prevailed before the date of the impugned notification.
It was not disputed by Mr. Mehta on behalf of the petitioner that the Railway Board was competent to say that with effect from April 1, 1966 vacancies in the Entry grade posts of Train Examiners should not be filled from Apprentice Train Examiners upto 50% but should be exclusively filled by promotion from amongst artisan staff.
As regards the recruitment to grade 'C ', the impugned notification states that with effect from April 1, 1966 all the Apprentice.
Train Examiners on successful completion of their training should be straightaway brought on to the scale Rs. 205 280 instead of being first absorbed in scale Rs. 180 6 240 as at present.
The period of training was also increased to 5 years on completion of which they should be put on to the working posts in scale Rs. 205 280.
So far as this portion of the notification is concerned, Counsel for the petitioner did not raise any constitutional objection.
But the contention of the petitioner is that the following portion of the notification was.
constitutionally invalid: "The Apprentice TXRS.
who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 192 against the quota 80% vacancies reserved for them.
Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade.
The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRs in scale Rs. 180 240 on a selection basis.
" In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well founded and must be accepted as correct.
At the time when the petitioner and the direct recruits were appointed to Grade 'D ', there was one class in Grade 'D ' formed of direct recruits and the promotees from the grade of artisans.
The recruits from both the sources to Grade 'D ' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C '.
To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade 'C '.
In the present case, it is not disputed on behalf of the first respondent that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority cum suitability, and there was no rule of promotion separately made for application to the direct recruits.
As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade 'D ' by March 31, 1966, because the notification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade 'C ' upto 80 per cent of vacancies reserved for them without undergoing any selec tion.
As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned.
In our opinion, the present case falls within the principle of the recent decision of this Court in Mervyn vs Collector(1).
In that case, the petitioners who were Appraisers in the Customs Department filed a writ petition under article 32, challenging the validity of the "rotational" system as applied in fixing the seniority of Appraisers and Principal Appraisers.
The system, as laid down in the relevant departmental circulars was that vacancies occurring in the cadre of Appraisers were to go alternatively to 'promotees ' and 'direct recruits '.
According to the petitioners of that case this resulted in inequality, especially in view of the fact that the number of direct recruits over the years was very low.
Promotion to the (1) ; 193 grade of Principal Appraisers was from the cadre of Appraisers; only those who had served as Appraisers for five years were entitled to be promoted to the higher grade.
Since the direct recruits had to wait for five years before they could become Principal Appraiser the promotees below them who had put in five years as Appraisers became Principal Appraisers.
In order to restore the seniority of the direct recruits thus lost, the rotational system was applied to the cadre of Principal Appraisers also i.e., one vacancy was to go to a promotee and the other to a direct recruit.
The plea of inequality in violation of article 16(1) of the Constitution was raised by the petitioners in respect of this also.
It was held by this Court, in the first place, that there was no inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and promotees.
It was held in the second place that the same could not be said when the rotational system was applied to the recruitment of Principal Appraisers.
The source of recruitment for these was one only, namely, the grade of Appraisers.
There was no question of any quota being reserved from two sources in their case.
In so far therefore as the Government was doing what it called res toration of seniority of direct recruits in Appraisers grade on their promotion to the higher grade it was clearly denying equality of opportunity under article 16 of the Constitution.
At page 606 of the Report Wanchoo, J., as he then was, speaking for the Court observed as follows: "This brings us to the question of Principles Appraisers.
We are of opinion that the petitioners have a legitimate grievance in this respect.
The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers.
There is therefore no question of any quota being reserved from two sources in their cases.
The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment.
In a case therefore where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over.
In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one.
There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade.
In so far therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers ' grade when they are promoted to the Principal Appraisers ' grade, it is clearly denying equality of opportunity LP(N)ISCI 14 194 to Apprasiers which is the only source of recruitment to the Principal Appraisers ' grade.
There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five, years ' experience as Appraiser is the minimum qualification.
Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally.
That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers ' grade subject of course to the right of government to revert any of them who have not been found fit during the period of probation.
But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits.
The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely from the grade of Appraisers.
In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers ' grade is a direct recruit or a promotee.
This will as we have already said be subject to the government 's right to revert any one promoted as a Princivil Appraiser if he is not found fit for the post during the period of probation.
The petition therefore will have to be allowed with respect to the method by which seniority is fixed, in the grade of Principal Appraisers.
That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers.
What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.
" We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grage 'D and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board.
It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B ', laid down that promotion to Grade 'C ' from Grade 'D ' was to be based on seniority cum suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner.
In our opinion, there,, 195 is no warrant for this argument.
It is 'true that the origin of Government service is contractual.
There is an offer and acceptance in every case.
But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.
In other words, the legal position of a Government servant is more one of status than of contract.
The hall mark of status is the attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement of the parties.
The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.
It is true that article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under article 310.
But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant.
The legal relationship is something entirely different, something in the nature of status.
It is much more than a purely contractual relationship voluntarily entered into between the parties.
The duties of status are 'fixed by the law and in the enforcement of these duties society has an interest.
In the language of juris prudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.
The matter is clearly stated by Salmond and Williams on Contracts as follows: "So we may find both contractual and status obligations produced by the same transaction.
the one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations de fined by the law,itself, and so pertaining to the sphere of status.
A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents.
The extent to Which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by mining for itself the contents of the relationship, is a matter depending on considerations of public policy.
In such contracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of contract into that of status." .lm0 (Salmond and Williams on Contracts, 2nd edition p. 12).
196 We are therefore of the opinion that the petitioner has no vested contractual right in regard to the terms of his service and that Counsel for the petitioner has been unable to make good his submission on this aspect of the case.
But for the reasons already expressed we hold that the impugned part of the notification violates the guarantee under articles 14 and 16 of the Constitution and a writ in the nature of mandamus should be issued commanding the first respondent not to give effect to the impugned part of the notification, viz.,: "The Apprentice T.X.Rs. who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 against the quota of 80% vacancies reserved for them.
Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade.
The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of T.X.Rs.
in scale Rs. 180 240 on a selection basis.
While computing the number of posts available for promotion of T.X.Rs.
in scale Rs. 180 240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account.
In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66, who cannot be absorbed in the anti cipated vacancies which will arise by the time they qualify.
" The application is accordingly allowed, but there will be no ,order with regard to costs in this case.
Writ Petition No. 203 of 1966 The material facts of this case are parallel to those in Writ Petition No. 154 of 1966 and for the reasons already given we hold that the petitioner is entitled to the grant of a writ in the nature of mandamus commanding the respondents not to give effect to the impugned part of the notification dated October 27, 1965, Annexure 'D ' to the Writ Petition.
The application is accordingly allowed, but there will be no order as to costs in this case.
Petitions allowed.
[/INST]Election for the office of Pramukh of a block was held under the provision of the Uttar Pradesh Kshettra Samitis and Zilla Parishads Adhinayam, 1961.
On one of the ballot papers, the second respondent had a third preference recorded in his favour and a second preference in favour of another candidate who was eliminated at one stage.
The Returning Officer did not count the third preference in favour of the second respondent and found at the final counting that the appellant and the second respondent had secured an equal number of votes.
He therefore drew a lot as per the Instructions in Schedule II and declared the second respondent duly elected.
The appellant then filed an election petition on various grounds before the District Judge who dismissed it, holding that the Returning Officer erred in not crediting the second respondent with the third preference and that if that was done there was no necessity for drawing lots at all and that the second respondent should have been declared elected as a result of the counting itself.
The appellant 's writ petition challenging the District Judge 's order was dismissed.
In appeal to this Court he contended that: (1) under rr. 37 and 39 the trial of an election petition takes place in two parts; first, to judge whether the returned candidate 's election is void and then to decide whether any other candidate should be declared to be duly elected, that it was only in the latter case the returned candidate had the right to claim that ballot papers not already counted in his favour should be so counted, and that therefore, the District Judge had no jurisdiction to count the ballot paper containing the third preference in favour of the second respondent; and (2) the ballot paper was an 'exhausted paper ' within Instruction 1(5) of Schedule II to the Rules, and that therefore the District Judge erred in law in counting it in favour of the second respondent.
Held: (1) The District Judge was entitled, to go into the question whether the uncounted ' ballot paper should have been counted in favour of the second respondent.
[249G] According to r. 37(a) read with r, 40 which generally applies the procedure in the Civil Procedure Code to the trial of election petitions under the Act, and r. 43 which deals with the findings of the trial Judge, the returned candidate can take any defence to show that he has been validly elected.
He could therefore allege and prove that certain votes should have been counted in his favour.
[249E G] Jabar Singh vs Genda Lal, ; , explained.243 244 (2) The fact that the Candidate with the second preference in the uncounted ballot Paper *as eliminated at one stage, did not make the ballot paper an 'exhausted paper ' within the definition in the Rules.
The second respondent was a continuing candidate, as per the Rules, and,there was a preference recorded for him on the ballot paper arid the District fudge was right in holding that it should have been counted in his favour, by the Returning Officer.
[250A C]
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<s>[INST] Summarize the judgementAppeal No. 901 of 1993.
From the Judgment and Order dated 15.11.91 of the Patna High Court in C.W. C. No. 3430 of 1991.
A. Sharan for the Appellant.
G. Ramaswamy and A.V. Rangam for the Respondents.
The Judgment of the Court was delivered by BHARUCHA, J.
Leave to appeal is granted.
The appeal is directed against the judgment and order of the High Court at Patna dismissing the writ petition filed by the appellant.
The appellant was employed by the respondent.
He was chargesheeted for having granted bank loans to a large number of persons without proper documentation and without verifying their creditworthiness and also with having obtained illegal gratification in that connection.
An en quiry was held.
The Enquiry Officer made a report holding the appellant guilty.
Upon the basis of the enquiry report the appellant was dismissed from service.
The appellant filed a writ petition before the High Court at Patna (being Writ Petition No. C.W.J.C. No. 1979 of 1988) impugning the dis 163 missal.
The High Court allowed the writ petition by judgment and order dated 8th July, 1988.
The enquiry, the court concluded, could not be held to be proper and in accordance with law.
Consequently, the order of dismissal was set aside.
The High Court observed : "This does not mean that the petitioner should be got scot free.
He must face enquiry.
Sufficient time has already lapsed.
The enquiry must be concluded as early as pos sible.
The petitioner will appear before the Enquirying Officer (to be nominated in the meantime) at Patna on 2nd August, 1988 and the prosecution will produce the witnesses examined on his behalf for cross examination.
After the cross examination is over the petitioner will also produce the witnesses when he may like to enquire.
This should be done without any adjournment and the proceed ing should be conducted day to day so that it may be concluded as early as possible.
With this observation this writ application is disposed of.
" The same Enquiry Officer then permitted the appellant to cross examine the witnesses produced in support of the charge and to examine his own witnesses.
He made a report dated 27th March, 1989 in which he held nine charges against the appellant to be proved, one to be partly proved and one not proved.
The disciplinary authority, upon consideration of the enquiry report, passed an order dated 23rd October, 1989, dismissing the appellant from service.
The appellant challenged the order of dismissal dated 23rd October, 1989 on the ground that the enquiry upon the basis of which it had been passed had not been conducted as required by the order of the High Court dated 8th July, 1988.
He also challenged it upon the ground that he had not been furnished with a copy of the Enquiry Report.
The High Court rejected the writ petition.
It held that the judgment of this Court in the case of Union of India and others vs Mohd. Ramzan Khan; , , did not cover an order of dismissal that had been passed before the said judgment was delivered.
Insofar as the enquiry report was concerned, the High Court took the view that the Enquiry Officer had allowed the appellant to participate in the proceedings as also to cross examine witnesses and he had considered all relevant aspects on the record.
164 It will be recalled that the High Court by the judgment and order dated 8th July, 1988 had held that the earlier enquiry was not proper and in accordance with law and had quashed the order of dismissal dated 14th February, 1987 based thereon.
It had directed that the appellant should face an enquiry whereat the prosecution would produce the witnesses it had examined on its behalf for cross examination.
by the appellant.
Thereafter, the appellant could produce such witnesses as he desired.
It is the submission of learned counsel on behalf of the appellant that the Enquiry Officer had in the second enquiry report relied upon the findings of the earlier enquiry, since quashed, and that he had not permitted the appellant to examine three necessary witnesses in support of his case.
There had, therefore, been no real enquiry as contemplated by the High Court 's order dated 8th July, 1988 and that, therefore, the dismissal order passed upon the basis of the second enquiry report should be quashed.
Shri G Ramaswamy, learner senior counsel for the respondent, submitted that the Enquiry Officer had conducted the enquiry as directed by the High Court in its order dated 8th July, 1988, from the point of cross examination of the respondent 's witnesses onward.
The enquiry report made by the Enquiry Officer subsequent to the order of the High Court dated 8th July, 1988 is entitled Additional enquiry report in respect of charges laid against Shri Heera Prasad".
It opens with the sentence, "This enquiry, report is further to the enquiry, report already submitted by me in September 1986".
It says that "the enquiry was reopened".
It says, further, ".As the charges have been dealt with one by one in detail in my previous enquiry report I am confining this report only to the cross examination of prosecution witnesses as also examination/cross examination of defence witnesses.
" The report concludes thus : "After going through the proceedings, hearing the depositions made by the defence witnesses, and hearing the answers given by the prosecution witnesses, I find no reason to change may report as no exonerating fact came out during the enquiry instead it becomes a little darker particularly noting the fact that at least three (03) of the witnesses cited by the charged officer himself refused to come for deposing before the enquiry for reasons best known to the charged officer/witnesses.
As the various 165 exhibits etc. were discussed and analysed by me in my previous report, I am not repeating the analysis once again in this report.
" As aforesaid, the Enquiry Officer held nine of the eleven charges to be proved, one to be partly proved and one to be not proved.
(The Emphasis is supplied).
It is patent that the order dated 8th July, 1988 contemplated a fresh enquiry.
At best, the examination in chief of the witnesses of ' the respondent could be said to have been allowed to be incorporated in the second enquiry proceedings.
The order certainly contemplated that the Enquiry Officer would apply his mind afresh to the evidence on record comprising the examination in chief and cross examination of the respondents witnesses and that of the appellant 's witnesses.
It is patent from the "Additional enquiry report" made by the Enquiry Officer that there has been no fresh application of mind.
It was impermissible for the Enquiry Officer, in these circumstances, to have borne his previous Enquiry Report in mind and to have confined the "Additional enquiry report" only to the cross examination of prosecution witnesses and the examination and cross ex amination of defence witnesses "as the charges have been dealt with one by one in detail in my previous enquiry report".
It was also impermissible for him to have stated that "the findings of the previous enquiry report remain as they are".
Having regard to the High Court 's order dated 8th July, 1988, the Enquiry Officer was bound to consider the material or, record afresh and not to take his earlier report into account and to say that he found "no reason to change that report".
We are, in the circumstances, not satisfied that the appellant has had a fair opportunity of presenting his case to an Enquiry Officer unbiased by pre conceptions.
Having regard to all that has transpired.
we think that it is in the fitness of things that the order of dismissal dated 23rd October, 1989 should be quashed and another Enquiry Officer should be appointed by the respondent who should allow the appellant the opportunity of examining as his witnesses the three persons referred to by the earlier Enquiry Officer in the paragraph of the "Additional enquiry report" subtitled "Conclusion".
He should give to the respondent and the appellant the opportunity of a hearing.
He should then apply his mind to the material on record without in any way being influenced by the earlier enquiry reports, and make his own enquiry report accordingly.
In the result, the appeal is allowed.
The judgment and order under appeal are set aside.
The writ petition is allowed to the extent mentioned in the preceding paragraph.
There shall be no order as to costs.
V.P.R. Appeal allowed.
[/INST]On State 's appeal against enhancement of compensation for a compact area of 10 acres of land laid out as building sites with fully formed roads and drainage, and acquired under the Land Acquisition Act, 1894, the High Court reduced the compensation holding that since the roads and drainage occupied a part of the area acquired, proportionate deduction in compensation ought to be made.
The claimant filed appeal by special leave to this Court.
Allowing the appeal, this Court, Held: 1.1.
The High Court was wrong in principle in reducing the compensation on account of roads and drainage.
The fact that these improvements had been made on the land acquired shows that what was acquired was more valuable than what it would have been without the improvements.
[p. 891E F] 1.2.
Accordingly, the judgment of the High Court is set aside and that of the Reference Court is restored.
[p.891F]
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<s>[INST] Summarize the judgementAppeal No. 1947 of 1975.
Appeal by Special Leave from the Judgment and Order dated 9 10 1975 of the Gujarat High Court in Special Civil Application No. 1339/75.
V.M. Tarkunde, P.H. Parekh, Miss Manju Jatley and (Miss) Mardk Tarkunde, for the Appellants.
D.V. Patel and M.N. Shroff, for Respondent No. 1.
K.L. Hathi and P.C. Kapur, for Respondent No. 2. 879 The Judgment of the Court was delivered by GUPTA, J.
The first appellant is an association of the manufacturers of Mangalore pattern roofing tiles in south Gujarat area, the other appellant, a partnership firm, is a member of the association.
The question that falls to be determined in this appeal by special leave is whether entry 22 added by the Gujarat Government by notification dated March 27, 1967 to Part 1 of the Schedule to the covers Mangalore pattern roofing tiles.
Entry 22 reads as follows; "Employment in potteries Industry.
Explanation: For the purpose of this entry potteries industry includes the manufacture of the following articles of pottery, namely: (a) Crockery (b) Sanitary appliances and fittings (c) Refractories (d) Jars (e) Electrical accessories (f) Hospital ware (g) Textile accessories . (h) Toys (i) Glazed Tiles" We may also refer to certain other provisions of the Minimum wages Act which3 provide the context to the question arising for decision.
Section 2(g) defines "scheduled employment" as meaning "any employment specified in the Schedule or any process or blanch of work forming part of such employment".
The schedule is in two parts.
which relates to employment in agriculture only As not relevant for the purpose of this appeal.
Section 3 authorises the appropri ate Government to fix or revise the minimum rates of wages payable to employees in scheduled employments.
Section 5 prescribes the procedure for fixing and revising minimum wages.
In fixing minimum rates of wages in respect of any scheduled Section 5 prescribes the procedure for fixing and revising minimum wages.
In fixing minimum rates of wages in respect of any scheduled.
employment for the first time or in revising the rates so fixed, the appropriate Government must either appoint committees to hold, neces sary enquiries and advise it in this regard, or publish its proposals in the matter for the information of persons .likely to be affected thereby.
The Government will fix or revise the minimum rates of wages after consid ering the advice of the committees or the representations received in regard to the proposals published, as the case may be.
Section 7 empowers the appropriate Government also to appoint an advisory board for coordinating the work of the committees appointed under section 5, and advising the Government generally in the matter of fixing and revising minimum rates of wages.
Section 19 880 authorises the Government to appoint Inspectors for the purposes of the Act, Sections 22 and 22 A lay down the penalties for paying to an employee any amount less than what is due to him under the Act, or contravening any provi sion of the Act or any rule or order made thereunder; the punishment may extend to imprisonment for six months with a fine of Rs. 500/ .
Under section 27 the appropriate Gov ernment after giving by notification in the official gazette not less than three months ' notice of its intention to add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed, add such employment to the schedule by another notification and the schedule in its application to the State concerned shall be deemed to be amended accordingly.
Before proceeding to consider the rival contentions, we may briefly state the facts in the background.
On November 13, 1966 the Gujarat Government issued a notification under section 27 declaring its intention to add "employment in potteries industry" with an 'Explanation ' to of the Schedule to the Minimum wages Act, and by notification dated March 27, 1967 the entry was added as entry No. 22.
Later a committee was appointed under sec tion 5 (1 ) to fix minimum rates of wages in potteries industry.
The committee submitted its recommendations some time in 1968.
It appears from the letter dated July 10, 1968 addressed to the Government by the advisory committee forwarding its report that the Committee had not taken into consideration roofing tiles in the recommendations made.
By a notification dated January 8, 1969 the Government fixed the minimum rates of wages in respect of potteries industry on the basis of the committee 's report.
On March 25, 1970 a proceeding was started against the second appellant on the complaint of an Inspector alleging that the partners of the firm had failed to.
produce for his examination the muster roll and the wages Register.
The appellant was acquitted by the magistrate who held that entry 22 did not cover roofing tiles and as such the Act was not applicable to the industry of the accused.
The State preferred an appeal to, the High Court against the order of acquittal.
The High Court affirmed the acquittal on merits but observed that the manufacture of roofing tiles was included in entry 22.
In 1974 the Gujarat Government appointed another committee under section 5 ' of the Act to revise the minimum wages in potteries industry.
This time the committee treated the manufacture of roofing tiles as included in item 22 and sent its report to the Government.
On May 12, 1975 the State Government issued a notification accepting the recommenda tions of the committee and gave effect to the revised rates from the next day, i.e. May 13, 1975.
The appellants filed a writ petition in the Gujarat High Court challenging the validity of the notification dated May 12, 1975.
By its order dated October 9, 1975 the High Court dismissed the writ petition on the view that "Mangalore pattern roofing tiles manufactories would be covered ' within the entry".
This is how the scope of entry 22 arises for consideration in this appeal.
The question turns on a true construction of the Explanation to entry 22 which says that for the purpose of this entry potteries industry "includes" the manufacture of the nine "articles of pottery" 881 specified therein.
Pottery in a wide sense will take in all objects that are made from clay and hardened by fire, from crude earthen pots to delicate porcelain.
Mr. Patel appear ing for the respondent, State of Gujarat, contends that the Explanation indicates that potteries industry in entry 22 is intended to cover all possible articles of pottery includ ing Mangalore pattern roofing tiles.
Referring to the well known use of the word 'include ' in interpretation clauses to extend the meaning of words and phrases occur ring in the body of the statute, Mr. Patel submits that the Explanation, when it says that potteries industry 'in cludes ' the nine named objects, what is meant is that it includes not only these objects but other articles of pot tery as well.
It is true that 'includes ' is generally used as a word of extension, but the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary connotation.
We may refer to the often quoted observation of Lord Watson in Dilworth vs Commissioner of Stamps, (1) that when the word 'include ' is used in interpretation clauses to enlarge the meaning of words or phrases in the statute "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".
Thus where 'includes ' has an extending force, it adds to the word or phrase a meaning which does not naturally belong to it.
It is difficult to agree that 'includes ' as used in the Explanation to entry 22 has that extending force.
The Explanation says that for the purpose of entry 22, potteries industry includes the manufacture of the nine "articles of pottery" specified in the Explanation.
If the objects specified are also "articles of pottery", then these objects are already comprised in the expression "potteries industry".
It hardly makes any sense to say that potteries industry includes the manufacture of articles of pottery, if the intention was to enlarge the meaning of potteries industry in any way.
We are also unable to.
agree with Mr. Patel that the articles specified in the Explanation may have been men tioned out of abundant caution to emphasize the comprehen sive character of the entry, to indicate that all rarities of pottery are included therein.
argument, though more plausible, does not also seem acceptable '.
It is possible that one might have doubts.
whether things like refractories or electrical or textile accessories would pass under the description pottery as that word is used in common parlance, but the Explanation also mentions crockery and toys regarding which there could be hardly any doubt.
The inclusion in the list of objects which are well recognised ' articles of pottery makes it plain that the Explanation was added to the entry not by way of abundant caution.
The contention of Mr. Tarkunde for the appellants is that the articles mentioned in the Explanation were intend ed to be exhaustive of the objects covered by entry 22.
According to Mr. Tarkunde if the legislature wanted to bring within the entry all possible articles of pottery then there was hardly any point in mentioning only a few them by way of Explanation.
To this Mr. Patel 's reply is that it (1) (1899) A.C. '105 106. 882 is well known that where the legislature wants to exhaust the significance of the term defined, it uses the word 'means ' or the expression 'means and includes ', and that if the intention was to make the list exhaustive, the legisla ture would not have used the word 'includes ' only.
We do not think there could be any inflexible rule that the word 'include ' should be read always as a word of extension without reference to the context.
Take for instance entry 19 in the schedule which also has an Explanation .containing the .word 'includes '.
Entry 19 is as follows: "Employment in any tobacco processing establishment, not covered under entry No. 3.
Explanation.
For the purpose of this entry, the expression "processing" includes packing or unpacking, breaking up,.
sieving, thrishing, mixing, grading, drying, curing or otherwise treating the tobacco (including tobacco leaves and stems) in any manner.
" Entry 3 to which entry 19 refers reads: "Employment in any tobacco (including bidi making) manufactory.
" It is clear from the Explanation to entry 19 that there could be no other way or manner of "processing" besides what is stated as included in that expression.
Though include ' is generally used in interpretation clauses as a word of enlargement, in some cases the context might sug gest a different intention.
Pottery is an expression of very wide import, embracing all objects made of clay and hardened by heat.
If it had been the legislature 's inten tion to bring within the entry all possible articles of pottery, it was quite unnecessary to add an Explanation.
We have found that the Explanation could not possibly have been introduced to extend the meaning of potteries indus try or the articles listed therein added ex abundanti caute la.
It seems to us therefore that the legislature did not intend every thing that the potteries industry tums out to be covered by the entry.
What then could be the purpose.
of the Explanation ? The Explanation says that, for the purpose of entry 22, potteries industry 'includes ' manufac ture of the.
nine articles of pottery named therein.
It seems to us that the word 'includes ' has been used here in the sense of 'means ', this is the only construction that the word can bear in the.
context.
In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of entry 22.
The use of the word 'includes ' in the restrictive sense is not unknown.
The observation of Lord Watson in Dilworth vs Commissioner of Stamps,(1) which is usually referred to on the use of 'include ' as a word of extension, ' is followed by these lines: "But the word 'i nclude ' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expres sions defined.
It may be equivalent to 'mean and include ', and in that case it may afford an ( 1899)A.C. 105 106 883 exhaustive explanation of the meaning which, for the pur poses of the Act, must invariably be attached to these words or expressions".
It must therefore be held that the manufac ture of Mangalore pattern roofing tiles is outside the purview of entry 22.
The appeal is allowed with costs against respondent No. 1, dated May 12, 1975 in so far as it applies to the Manga lore pattern roofing tiles is quashed.
The members of the first appellant are permitted to withdraw any sum they had deposited in the Gujarat High Court pursuant to the order of this Court made on April 2, 1976.
M.R, Appeal allowed.
[/INST]Section 4 of the Andhra Pradesh (Andhra Area Electricity Supply Undertaking (Acquisition) Act, 1954, empowered the Government to declare that an electricity undertaking of the licensee Municipal Council shall vest in Government on a specified date.
Section 5 provides for compensation to be paid on one of three alternative bases, A, B or C set out in the Act.
Where compensation is on the basis 'C ',, it in cludes under section 5(3)(vi) the book value of all intangible assets to the extent such value has not been written off in the books of the licensee; and section 6(2)(a) mentions the items that would vest in the State Government.
Section 6(2)(a)(iii) relates to all the rights, liabilities and obligations of the licensee under any other contract entered into bona fide, not being a contract relating to the borrowing or lending for money.
Section 10(2) (b)(iii) lays down that the Government may deduct from the compensation all sums paid by consumers by way of security deposit and arrears of interest due thereon on the vesting date, in so far as they have not been paid over by the licensee to the Government, less the amounts which according to the books of the licensee are due from the consumers to the licensee for energy supplied to such consumers before that date.
In the present case, the State Government made a decla ration regarding the vesting of the Electricity Undertaking of the appellant in the State Government, and transferred its rights to the respondent Electricity Board.
Certain amounts were shown in the books of the appellant as due to it from consumers.
The respondent claimed those amounts and flied a suit against the appellant for their recovery.
The trial court dismissed the suit, but the High Court allowed the appeal.
In appeal to this Court, it was contended that past dues from the consumers would not vest in the respondent as they were not specifically mentioned in section 6(2)(a); and that under section 10(2)(b)(iii) the appellant was entitled to deduct and appropriate the amounts due from consumers for supply of electricity from their security deposits.
Dismissing the appeal to this Court, HELD: (1) The explicitly wide language used in section 6(2)(a)(iii) dispenses with the need to specify all items which are covered by it; and, arrears of dues from consumers are covered by the wide language of the clause.
[850 A] (2)(a) Section 10(2)(b)(iii) is meant for security deposits and arrears of interest due on them which are generally held in trust by the licensee so as to be ulti mately returned to the consumers,.
if the dues of the con sumers have been met without resorting to the amounts depos ited.
They are used for a deduction of dues from deposits where these have not been paid.
If these deposits have not been made over by the licensee to the Government, they will be claimable by the depositors, and, therefore, they are deducted from the compensation.
If however, there are any amounts due shown in the books of the licensee as duo from the consumers of energy they would become realisable by the Government under section 6(2)(a)(iii).
It is for this reason that the deduction of security 847 deposit from compensation is reduced by the amounts which are due from consumers to the Undertaking for energy sup plied by the Undertaking before the date of vesting as they become the claims realisable by the successor in interest of the Undertaking.
An exclusion from an item of deduction from compensation could only indicate that this was being done because this was an item which is covered by the compensation provided for and to be paid.
[850 A] (b) In .the present case, the only contention of the appellant was that the right to appropriate the amount of dues did not vest in the respondent but that the amount had vested in the appellant.
It was not argued on behalf of the appellant that what was vested in the Government was only the right to realise the dues from the consumers and not to recover from the appellant the amount which the appellant had actually realised or could have realised.
(3) The High Court 's interpretation of section 10(2)(b)(iii) must be accepted as a correct interpretation because it is in harmony with the meaning of the terms of section 5(3)(vi) read with section 6(2)(a) of the Act.
[851C]
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<s>[INST] Summarize the judgementAppeal No. 871 of 1971.
Appeal by certificate from the judgment and decree dated December 21, 1970 of the High Court of Madras in O.S. Appeal No. 108 of 1966.
section V. Gupte, P. Kothandaraman and G. N. Rao, for the appellant.
section T. Desai, A. subhashini and 4.
V. Ranagam, for the respondent.
M. Natesan, N. C. Raghvachari and K. Javaram, for the intervener.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate from a judgment of the Madras High Court arising out of a suit for partition instituted on the original side of that court.
Raja V. Rajeswara Rao the respondent herein and Raja V. Maheswara Rao (deceased) who were brothers owned the cinema known as Odeon at Woods Road, Madras in equal shares.
This property was leased out by them to Isherdas Sahni & Bros.
In 1965 Raja Maheswara Rao filed a suit in which it was stated that apart from other properties owned by the two brothers Odeon Cinema which consisted of land, buildings, theatre, furniture, talkie equipment etc.
was owned by them in equal shares.
The lease in favour of Isherdas Sahni & Bros. was to expire on April 30, 1967.
As we are concerned only with the cinema property in the present case it is unnecessary to refer to the pleadings relating to other properties belonging to the two brothers.
In para 11 of the plaint it was pleaded that having regard to the nature of the property it was not possible or feasible or convenient to divide it into two halves by metes and bounds.
It was prayed that the court in exercise of its inherent jurisdiction should direct the property to be sold by public auction and pay the plaintiff his I share in the net proceeds, the sale being subject to the lease in favour of Isherdas Sahni & Bros. In the written statement filed by Raja Rajeswara Rao it was denied that the Odeon Cinema property was not capable of division into two halves by metes and bound& and it was averred that such a division was not only possible but.
it 907 would be also just and proper.
The right of the plaintiff in the suit to invoke the inherent powers of the court for a decree for sale was denied.
Paras 6 and 7 are reproduced below : "6.
The defendant submits that the suit property is very easily capable of division by metes and bounds into two shares.
The defendant wants to retain his share of the suit property and he does not want to sell or Part with the property.
The plaintiff is not entitled to a decree for sale of the suit property.
In the event of this Honourable Court holding that the suit property is incapable of division into two shares, the defendant submits that he is ready and willing to buy the plaintiff 's share in the suit property and prays that this Honourable Court may be pleased to order a valuation of the plaintiff 's share to be made in such manner as this Honourable Court may think fit and proper and offer to sell the said share to the defendant at the price so ascertained with suitable directions in that behalf.
The defendant is willing to buy the plaintiff 's share, '.
Para 12 was to the effect that in the event of the court ordering sale of the suit property a decree might be passed in favour of the defendant for the purchase of the plaintiffs share at a valuation determined by the court.
On July 26, 1965 the Court appointed a Commissioner for the purpose of determining various matters which would enable the court to decide whether the property was capable of division by metes and bounds.
It appears that before the Commissioner the defendant consistently pressed for a scheme being suggested by which division of the property in dispute could be effected.
The report of the Commissioner dated August 27, 1965 indicates that he had considerable difficulty in suggesting a division.
This is what he said : " My submission would therefore be that though the property could be divided in the manner desired by thedefendant the space which is shown as GI. . its situation is such that business of the type contemplated by the defendant could not be started therein without detriment to the functioning of the theatre '.
It is clear from the order of the learned Single Judge that the prima facie impression which he had formed after inspection of the property was that it was not capable of division by metes and bounds.
He had given no final, decision on the matter when an oral application was made by the plaintiff for withdrawing the suit with liberty to institute a fresh suit.
An objection was raised before the trial judge that because the defendant bad invoked the 908 provisions of section 3 of the Partition Act the plaintiff could not be permitted to withdraw the suit.
The trial judge, however, took the view that so long as a preliminary decree had not been passed in the partition suit it was open to the plaintiff to withdraw the same.
Considering the question whether liberty should be granted to bring a fresh suit under Order 23, Rule 1, the trial judge treated it to be axiomatic that in a suit for partition or redemption when a plaintiff withdraws his suit he will be entitled to file a fresh suit as the cause of action is ' a recurring one.
This is what the trial judge said : "Even if the plaintiff is not granted permission, under Order 23, rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.
In view of this obvious right of the plaintiff, it has to be held that the plaintiff is entitled, particularly, in terms of Order 23, Rule 1, to bring a fresh suit.
" The suit was dismissed as withdrawn.
On October 14, 1966, Raja Maheswara Rao sold his half share in Odeon to N. C. Subramaniam and his sons who in their turn sold that share to Isherdas Sahni & Bros. (P) Ltd. on January 19, 1970.
Raja Rajeswara Rao who was defendant in the original suit filed an appeal to the Division Bench of the High Court.
During the pendency of the appeal the plaintiff died leaving a will and by an order passed by the court on October 13, 1967 the executor appointed by the plaintiff under the will was impleaded as second respondent in the appeal.
The Division Bench of the High Court considered that the following question arose for determination : (1) Whether the court has an inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such an inherent power and not the power under section 2 of the aforesaid Act.
(2) Whether the plaintiff having invoked the jurisdiction of the court under section 2 of the Partition Act is entitled to withdraw the suit under Order 23, Rule 1 of the, Civil Procedure Code at the same time reserving his right to file a fresh suit on the same cause of action.
(3) At what stage should the request under section 2 be made and (4) Has the defendant who has invoked the jurisdiction of this Court under section 3 of the Partition Act an indefeasible right to compel the plaintiff to sell the, plain 909 tiff 's half share to him at a valuation and prevent the plaintiff from withdrawing the suit ? On the first question the High Court expressed the view that the Partition Act conferred on the court in a suit for partition a power of sale in certain specified circumstances.
No general power of sale could be spelt out from the provisions of that Act.
It was hold that section 2 of the Partition Act had been invoked by the, plaintiff and the plaintiff could not withdraw a suit in the circumstances of the present case.
It was further held that the request of the defendant under section 3(1) of the Partition Act must be inquired into by the trial judge.
Accordingly the appeal was allowed and the trial judge was directed to restore the suit to his file and frame the necessary additional issue and proceed to dispose of the request made by the defendant under section 3(1) of the Act in accordance with law.
The present appeal has been brought against that judgment.
During the pendency of the appeal in this Court Ramamurthi Iyer the executor appointed by the will of late Raja Maheswara Rao, who had filed the appeal here, died on December 24, 1971.
J. Padmini wife of M. Jayaraj filed C. M. P. 2227/72 for being brought on record as the second appellant on the ground that she was the only person competent to represent the estate of the deceased Raja Maheswara Rao.
Another petition C. M. P. 1781/72 was filed in this Court by Isherdas Sahni & Bros. (P) Ltd. on the ground that the said company was the assignee of late Raja Maheswara Rao and was still his legal representative and should be impleaded in his place.
On July 18, 1972 this Court allowed Smt.
Padmini to be impleaded as appellant but declined the prayer for substitution as appellant of Isherdas Sahni & Bros. (P) Ltd. The company was, however, allowed to intervene in the appeal.
Learned counsel for the parties agreed before us that the only question which survives and which requires our decision is whether in the circumstances of the present case the trial court could allow withdrawal of the suit.
This involves the determination of the correct position under Order 23, Rule 1 of the C.P.C., in respect of a suit for partition of joint property in which the provisions of the Partition Act have been invoked or are sought to be applied.
Order 23, Rule 1, of the C. P. C., to the extent it is material, is as follows "O.23, R. 1.
At any time after the institution of the suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or 910 (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.
it may, on such terms as it thinks fit, grant the plaintiff Permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim.
R. 3. . . .".
In Bijayananda Patnaik vs Satrughna Sahu & Others(1) in which an election appeal was sought to be withdrawn it was observed that where an application for withdrawal of a suit is made under O.23, R. 1 (1), the court has to allow that application and the suit stands withdrawn.
It is only under sub rule (2) where a suit is not being withdrawn absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject matter that the permission of the court for such withdrawal is necessary.
In Hulas Rai Baij Nath vs Firm K. B. Dass & Co.(2) a suit for rendition of accounts had been filed.
The defence was that the accounts had been settled before any preliminary decree for rendition of accounts was passed.
The plaintiff applied for withdrawal of the suit.
This Court held that there was no ground on which the court could refuse to allow withdrawal of the suit because no vested right in favour of the defendant had come into existence at the point of time when withdrawal was sought.
Certain situations were envisaged where ,different considerations might arise e.g., where a set off might have been claimed under O.8 of the C.P.C. or a counter claim might have been filed.
Even if the defendant in a suit for rendition of accounts could claim a decree for the amount due to him after rendition of accounts no such right could possibly he held to exist before the court passed a preliminary decree for rendition of accounts.
It was particularly noted that in the case of a suit between principal and agent it was the principal alone who normally had the right to claim rendition of accounts from the agent.
Counsel for both sides have sought to derive support from the above decisions of this Court.
On behalf of the appellant it has been contended that under O.23, R. 1 there is an unqualified right to withdraw the suit if the plaintiff does not wish to proceed with it.
It is conceded that if any vested right comes into, existence before the prayer for withdrawal is made the court is not bound to allow withdrawal; but it is suggested that this can happen only in very limited circumstances i.e., where a Preliminary decree had been passed or in those cases whether a set off has been claimed or a counter claim has been made.
According to the appellant no preliminary decree bad been passed in the present suit and (1) ; (2) ; 911 thus no vested right had come into existence in favour of the defendant.
There was no question of any counter claim or set off and therefore the trial court was fully justified in allowing withdrawal of the suit.
If the matter were to be viewed only in the above light the appellant 's contention would have 'a good 'deal of force.
But the nature and incidents of a Partition suit and the consequences which ensue once the provisions of the Partition Act are invoked or sought to be applied must be considered before the contentions of the appellant 's counsel can be accepted.
The Partition Act was enacted to amend the law relating to partition.
Sections 2 and 3 are as follows : section 2.
"Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the, property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
section 3 (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained,and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders, severally apply for leave to buy as provided in sub section (1) the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
" 912 The scheme of sections 2 and 3 apparently is that if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made, the court can in its discretion on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards direct a sale of the property and distribute the proceeds among the shareholders.
Now when a court has been requested under section 2 to direct a sale 'any other shareholder can apply for leave to by at a valuation the share or shares of the party or parties asking for sale.
In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court.
other words if a plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partiton suit under section 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it any it is bound to order a valuation of the shares in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation.
The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner.
It would appear from the objects and reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds.
There could be, instances where "there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to.
its decree or was driven to all kinds of shifts and expedient in order to do so.
The court was, therefore, given a discretionary authority to direct a salt where.
a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties.
But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power.
At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court.
A question immediately arises whether after a shareholder has applied for leave to buy at a valuation under section 3 the other shareholder who has requested the court to exercise its power under section 2 of ordering sale can withdraw the suit under Order 23, Rule 1 of the Civil Procedure Code.
The answer to this question will 913 depend on the nature of the right or privilege which vests in the co sharer to seek to derive benefit of the provisions of section 3.
In some of the decided cases a choice or option given to the shareholder under section 3 has been treated as a right or a privilege.
See Jhamandas Lilaram vs Mulchand Pahlumal(1) and Nitish Chandra Ghosh vs Promode Kunwr Ghosh.
(2) It was argued on behalf of the appellant that even if a right or privilege is conferred by section 3 on a shareholder once the other shareholder has invoked the procedure prescribed by section 2 of the, Partition Act it is not a vested right which can come into existence only if a preliminary decree has been passed by the court or if a mutual, compromise has been effected between the parties.
Our attention has been invited to the decisions of this court mentioned before in which the passing of a preliminary decree or a compromise being effected were treated as creating a vested right which prevented the plaintiff in a suit for partition from withdrawing it if the other share holders were not agreeable.
According to the learned counsel for the appellant the only decision in.
which the point under consideration has been directly considered is that of Viswanatha Sastri J., in Hasan Badsha vs Sultan Raziah Begum.
(3) There both parties had conceded that the property was incapable of being divided by metes and bounds and that it should be sold under the provisions of the Partition Act.
The defendant applied to Purchase the property under section 3.
A Commissioner was also appointed to report whether the property was capable of division and lie reported that it could not be divided by metes and bounds.
The plaintiff sought to withdraw the suit.
It was held that he was entitled to do so because the court had not made a valuation and an order that the half share of the plaintiff should be conveyed to the defendant on the valuation determined by the court.
It might be that an advantage had accrued to the defendant as regards the admissions made in the plaint about the impracticability of dividing the property.
That did not clothe the defendant with any enforceable right and did not prevent the plaintiff from exercising the right of a suitor to withdraw the suit.
This authority has also been strongly relied upon for the similarity of facts in the present case.
Here also, it is pointed out ', the court had not come to the conclusion that the Property was incapable of division by metes and bounds nor had any valuation been made or order passed for its sale under section 3 of the Partition Act.
On the other hand reliance has been placed by the learned counsel for the respondent on the night which inheres, in other shareholder to claim partition once an action for partition has been instituted '.
Even if the plaintiff does not wish to prosecute that suit or wishes to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their (1) 24 Indian Cases Vol.
1 Cal.
243 at p. 247.
(3) A.I.R. 1949 Mad.
9 L172 Sup.
CI/73.
914 share partitioned.
The, following observations of Crump J., in Tukaram Mahadu Tandel vs Ramchandra Mahadu Tandel (1) have been cited in support of the above submission : "But there are other and wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants ' claim.
It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another (Order XXIII, Rule 1(4) )".
It has further been emphasised that in a partition suit the plaintiff is not wholly dominus litis and even on the assumption that section 3 confers a privilege or an option on the shareholder who is a defendant in a suit for partition the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing a suit under Order 23 Rule 1.
It seems to us that the true position under sections 2 and 3 of the Partition Act so far as O. 23, r. 1 C.P.C., is concerned must be determined in the light of the rule enunciated by Crump I., in the above case as that rule has seldom been doubted and there is a large body of judicial opinion to support it.
(See the cases at page 224, Law of Co Sharers by D. N. Guha).
The various stages in the proceedings would be as follows under sections 2 and 3 of the Partition Act 1.
In a suit for partition if, it appears to the Court that for the reasons stated in section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale.
This can be done, however, only on the request of the shareholders interested individually or collectively to the extent of one moiety or upwards.
When a request is made under section 2 to the court to direct a sale any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale.
The court has to order valuation of the share of the party asking for sale.
After the valuation has been made the court has to offer to sell the share of the party asking for sale to the shareholder applying for leave to buy under section 3. 5.
If two or more shareholders severally apply for leave to buy the court is bound to order a sale of the share or shares so the shareholder who offers to pay the highest price above the valuation made by the court.
(1) I.L.R. 915 6.
If no shareholder is willing to buy such share or shares at the price so ascertained the application under section 3 shalt be dismissed, the applicant being liable to pay all the costs.
A question which presents a certain amount of difficulty is at what stage the other shareholder acquires a privilege or a right.
under section 3 when proceedings are pending in a partition suit and a request has been made by a co owner owning a moiety of share that a sale be held.
One of the essential conditions for the applicability of section 2 of the Partition Act is that it should appear to the court that a division of the property cannot reasonably or conveniently be made.
To attract the applicability of section 3 all that the law requires is that the other shareholder should apply for leave to buy at a valuation.
Once that is done the other matters mentioned in section 3 ( 1 ) must follow and the court is left with no choice or option.
In other words when the other shareholder applies for leave to buy at a valuation the share of the party asking for a sale the court is bound to order valuation of his share and offer to sell the same to such shareholder at a price so ascertained.
Coming back to the question of withdrawal of a suit in which the provisions of sections 2 and 3 of the Partition Act have been invoked we find it is difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under section 2 of the Partition Act and the defendant has applied to the court for leave to buy at a valuation the share of the plaintiff under section 'J.
In England the position about withdrawal has been stated thus, in the Supreme Court Practice 1970 at page 334 : "Before Judgment.
Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him".
As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made.
This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder.
If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of section 3(1) it would only enable the plaintiff to defeat the purpose of section 3 (1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under 916 S.2 instead of partitioning it.
Apart from these consideration it would also enable the plaintiff in a partition suit to withdrawal that suit and defeat the defendants claim which, according to Crump cannot be done even in a suit where the provisions of the Partition Act have not been invoked.
In the argument of the learned counsel for the appellant em phasis has been laid on the fact that in the present case the court did not give any finding that the property was not capable of division by metes and bounds.
It is thus pointed out that the essential condition for the application of section 2 of the Partition Act had not been satisfied and section 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of section 2.
This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by ' metes and bounds was not possible.
That was sufficient so far as the proceedings in the present case were concerned.
The language of section 3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds.
It should only "appear" that it is not so capable of division.
It has further been contended that the respondent had maintained throughout that the property was capable of division.
He could not, therefore, take advantage of the provisions of the Partition Act.
Further he never made any proper application invoking the provisions of section 3 of the Partition Act and all that he said in his written statement, was that in case the court held that the said property was incapable of division into two shares he Was ready and willing to buy the plaintiff 's share in the suit at a valuation to be made in such a manner as the court might think proper.
In our opinion, this was sufficient compliance with the requirement of section 3 of the Partition Act.
Section 3(1) does not contemplate a formal application being filed in every case.
The words employed therein simply ' mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale.
In the written statement even if it was maintained that the property was not capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of section 3 of the Partition Act.
Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt & Others vs Thomas Webb Jones(1) and the statement in Halsbury 's Laws of England vol.
24, Second Edition (Hailsham Edn.) paras 745 to 747.
It has been pointed out that in the English Partition Act 1868 (31, 32 Victoriae, Cap.
40) sections 3 and 5 are similar in terms to sections 2 and 3 of the Indian (1) 5 A.C. 651.
917 Partition Act.
The statement in Halsbury 's Laws of England and the law laid down in the decided cases, it is urged, do not support the view which has been pressed on behalf of the respondent.
The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it appeared to the court that it would be more beneficial for the parties interested.
The provisions of the English Partition Act do not appear to be in parimutuel with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us.
In the result the appeal fails and it is dismissed.
But in view of the entire circumstances we leave the parties to bear their own costs in this Court.
G.C, Appeal dismissed.
[/INST]In a suit for partition of property between two joint owners the plaintiff made an application to the Court under section 2 of the Partition Act that as one of the properties namely, a cinema house with its appurtenances, was incapable of division by metes and bounds, the same be sold and the proceeds divided between the parties.
The defendant contended that it was possible to ' divide the property by metes and bounds but offered, if the Court took the contrary view, to purchase it at a valuation made by the Court, under the provisions of section 3 of the Act.
The Court appointed a Commissioner whose report showed that he had considerable difficulty in suggesting a division.
The Single Judge had given no final decision on the matter when an oral application was made by the plaintiff for withdrawing the suit with liberty to institute a fresh suit.
The Judge held that the suit could be withdrawn because no preliminary decree had been passed and that a fresh suit could be brought under the provisions of Order 23 Rule 1 of the Code of Civil Procedure.
The suit was dismissed as withdrawn.
In appeal the Division Bench held that the defendant had a vested right to purchase the property and reversed the judgment of the trial Court.
In this Court it was urged on behalf of the plaintiff 's legal representatives that under Order 23 Rule 1 there was an unqualified right to withdraw a suit except that in certain limited circumstances where the defendant had acquired a vested interest, the Court was not bound to allow withdrawal.
Dismissing the appeal, HELD : The true position under sections 2 and 3 of the Partition Act so far as O. 23, r.
I C.P.C. is concerned must be determined in the light of the rule enunciated by Crump, J., in Tukarama 's case as that rule has seldom been doubted and there is a large body of judicial opinion to support it.
It was observed by Crump J. that on wider considerations it must be held that Plaintiff could not withdraw so as to defeat the defendant 's claim.
He further pointed out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission.
of another.
[914B, D] Under sections 2 and 3 of the Partition Act, the various stages in the Proceedings would be as follows : 1.
In a suit, for partition if, it appears to the Court that for the reasons stated in section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale.
Ibis can be done, however, only on the request of the shareholders interested individually or collectively to the extent of one moiety or upwards.
(2) When a request is made under section 2 to the court to direct a sale any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale.
(3) The court has to order valuation of the share of the party 905 asking for sale.
(4) After the valuation has been made the court has to, offer to sell the share of the party asking for sale to the shareholders applying for leave to buy under section 3.
(5) If two or more shareholders, severally apply for leave to buy the court is bound to order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court.
(6) If no shareholder is willing to buy such share or shares at the price so ascertained the application Linder section 3 shall be dismissed, the applicant being liable to pay all the costs.
[914E 915A] As soon as a shareholder applies for leave to, buy at a valuation, the share of the party asking for a sale under section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made.
This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder.
If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of s.3(1) it would only enable the plaintiff to defeat the purpose of section 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under s.2 instead of partitioning it.
Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant 's claim which, according to Crump, J. Tukaram 's case cannot be done even in a suit where the provisions of the Partition Act have not been invoked.
, [915G 916A] The trial court bad prima facie come to the conclusion that a division by metes and bounds was not possible.
That was sufficient so far as the proceedings in the present case were concerned.
The language of s.3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds.
It should only 'appear ' that it is not so capable of division.
[916C] Section 3(1) does not contemplate a formal application being filed, in every case.
The words employed therein simply mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale.
In the written statement of the defendant in the present case it was said that even if the court held that the property was incapable of division into two shares the defendant was ready and willing to buy the plaintiff 's share in the suit at a valuation to be made in such a manner as the court might think proper.
That was sufficient compliance with the, requirements of section 3 of the Partition Act.
[916F G] Tukaram Mahadu Tandel vs Ramchandra Nahadu Tandel, I.L.R. , applied.
Bijayananda Patnaik vs Satrughna Sahu & Others [1964] S.C.R. 538, Hulau Rai Baij Nath vs Firm K. B. Dass & Co. ; , Jhamandas Lilaram vs Mulchand Pahulma 244 Indian Cases 273.
Jharan Chandra Ghosh vs, Promoda kumar Ghosh, I.L.R. [1953] Vol.
at page 247, Hasan Badsha vs Sultan Raziah Begum.
A.I.R. 1949 Mad. 772, and Peter Pill & Others vs Thomas Webb Jones, 5 A.C. 651, referred to.
906 Observed that the provisions of the English Partition Act did not appear to be in pari materia with those of the Indian Partition Act and no assistance could be derived from the English law on the points to be determined in the present case.
[917B]
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<s>[INST] Summarize the judgementivil Appeal Nos.
1399 to 1403 of 1970.
479 Appeal from the Judgment and order dated 20th December 1 968 A the Madras High Court in Tax Case No. 314/64 (Reference No. 82 of 1964) and Civil Appeal No. 301 of 1974 Appeal from the Judgment and order dated 3rd April 1972 of the Madras High Court in Tax Case No. 328 of 1966 (Reference No. 88/66).
section T. Desai, J. Ramamurthi; for the appellant (In CA 1399 1403 of 1970).
section Swaminathan, Mrs. section Gopalakrishnan for the Respondent in all the appeals.
The Judgment of the Court was delivered by JASWANT SINGH, J.
These Appeals Nos.
1399 to 1403 of 1970 and 301 of 1974 by certificates granted by the High Court of Madras shall be disposed of together by this judgment as they raise common question of law and fact.
The circumstances giving rise to these appeals are: The late R. Sridharan along with his father and brothers constituted a Hindu undivided family governed by Mitakshara law.
On June 28, 1952, while he was still unmarried, a partition took place between him, his brothers and his father.
As a result of this partition, a block of shares in T. V. Sundaram Iyengar and Sons Private Limited and three other limited companies fell to his share.
On June 14, 1956, Sridharan married Rosa Maria Steinbchler, a Christian woman of Austrian descent, under the .
On November 29, 1957, a son named Nicolas Sundaram was born out of this wedlock.
For the assessment years 1957 58, and 1958 59, Sridharan was assessed to income tax and wealth tax in the status of an 'individual ' on his own declaration to that effect.
In the assessment proceedings in respect of income tax and wealth tax for the assessment years 1959 60, 1960 61 and 1961 62 and in the assessment proceedings under the Expenditure Tax Act for the year 1961 62, he claimed to be assessed in the status of a member of Hindu undivided family consisting of himself and his son, Nicolas Sundaram, contending that the property held by him was ancestral and Nicolas Sundaram was a Hindu.
The Income Tax officer, Wealth Tax officer and Expenditure Tax officer refused to accede to the contention of Sridharan and assessed him in the status of an `individual ' as in the previous years on the grounds that the value of the share and other investments standing in his name being his exclusive properties and by virtue of section 21 of the , succession to the property of a person whose marriage has been solemnized under that Act being governed by the , and not by the ordinary Hindu law, Nicolas Sundaram could not become a member of Hindu undivided family with his father.
Sridharan thereupon went up in appeal to the Appellate Assistant Commissioner but remained unsuccessful.
The orders passed by the Income 480 Tax /Wealth Tax/Expenditure Tax officers and the Appellate Assistant Commissioner were also affirmed in appeals against the assessments respectively made under the Income tax Act`, Wealth Tax Act and the Expenditure Tax Act by the Appellate Tribunal.
In the course of its consolidated order rejecting the appeals, the appellate Tribunal observed that although section 21 of the pre served some of the rights in the family property of the children born out of marriage solemnized under that Act, it did not clothe such off spring with the character of Hindus and therefore, there was no Hindu undivided family of Sridharan and his son which could claim to be taxed as Hindu undivided family.
Thereafter on the applications made by Sridharan under section 27 ( 1 ) of the Wealth Tax Act, section 66 ( 1 ) of the Income tax Act and section 25(l) of the Expenditure Tax Act, the Income tax Appellate Tribunal referred the following common question of law arising from its aforesaid decision for the opinion of the High Court: "Whether, on the facts and in the circumstances of the case, the assessee and his son constituted a Hindu undivided family for purposes of assessment under the Income tax, Wealth tax and Expenditure tax Acts ?" The High Court following the decision of this Court in Gowli Buddanna vs Commissioner of Income tax(l) held that Sridharan 's claim to be reckoned as Hindu undivided family was well merited and the Tribunal was in error in holding that there was no Hindu undivided family of Sridharan and his son which could claim to be assessed and taxed as such either under the Income tax Act, or Wealth Tax Act or the Expenditure Tax Act.
The High Court accordingly answered the question in the affirmative but granted certificate of fitness for appeal to this Court.
Sridharan died on April 9, 1962.
A few days after the valuation date relevant for the assessment year 1963 64, his widow Mrs. Rosa Maria Steinbchler filed a wealth tax return claiming that the assessment for the assessment year 1962 63 should be made in the status of Hindu undivided family.
The Wealth Tax officer following his earlier decision in the assessment proceedings in respect of the previous years rejected the claim of Rosa Maria Steinbchler holding that she was not a Hindu and in any case since her marriage with Sridharan was under the , Nicolas Sundaram had no right by birth in the properties obtained by the assessee on partition.
He further held that Nicolas Sundaram could claim Sridharan 's property only under the and not under the Hindu law.
on appeal, the Appellate Assistant Commissioner affirmed the order of the Wealth Tax officer.
A further appeal was 481 "Whether the assessee, Sridharan and his son constituted A in law a Hindu undivided family for the purpose of assessment under the ?" The High Court answered the question in the affirmative i.e.
against the Revenue observing that the decision in the previous reference directly governed the facts of the fresh reference.
Aggrieved by this order of the High Court, the appellant applied and obtained leave to appeal to this Court under section 29(1) of the q and Article 133(1)(c) of the Constitution of India.
This is how the appeals are before us.
Counsel appearing for the appellants and respondents have repeated before us the contentions respectively advanced on behalf of the parties before the High Court.
It cannot be disputed that a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters.
It cannot also be disputed that property obtained by Sridharan on partition between his father and brothers could become ancestral property so far as his sons, grandsons and great grandsons were concerned who could according to Mitakshara law acquire an interest therein by birth.
The sole question which, however, falls for our consideration in these appeals is whether Nicolas Sundaram is a Hindu governed by Hindu law.
It is a matter of common knowledge that Hinduism embraces within itself so many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term 'Hindu ' with precision.
The historical and etymological genesis of the word "Hindu" has been succinctly explained by Gajendragadkar, C.J. in Shastri Yagnapurushdasji & ors.
vs Muldas Bhundardas Vaishya & Anr.(l).
In Unabridged Edition of Webster 's Third New International Dictionary of the English language, the term 'Hinduism ' has been defined as meaning "a complex body of social, cultural, and religious beliefs and practices evolved in and largely confined to the Indian subcontinent and marked by a caste system, an outlook tending to view all forms and theories as aspects of one eternal being and truth, a belief in ahimsa, karma, dharma, sansara, and moksha, and the practice of the way of works, the way of knowledge, or the way of devotion as the means of release from the bound of rebirths; the way of life and form r of thought of a Hindu".
In Encyclopaedia Britannica (15th Edition), the term 'Hinduism ' has been defined as meaning "the civilization of Hindus (originally, the inhabitants of the land of the Indus River).
It properly denotes the Indian civilization of approximately the last 2,000 years, which (1) ; 33 833 SCI/76 482 gradually evolved from Vedism, the religion of the ancient Indo European peoples who settled in India in the last centuries of the 2nd millennium BC.
Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literary, and artistic aspects.
As a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of life .
In principle, Hinduism incorporates all forms of belief and worship without necessitating the selection or elimination of any.
The Hindu is inclined to revere the divine in every manifestation, whatever it may be, and is doctrinally tolerant, leaving others including both Hindus and non Hindus whatever creed and worship practices suit them best.
A Hindu may embrace a non Hindu religion without ceasing to be a Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe that the highest divine powers complement each other for the well being of the world and mankind.
Few religious ideas are considered to be finally irreconcilable.
The core of religion does not even depend on the existence or non existence of God or on whether there is one god or many.
Since religious truth is said to transcend all verbal definition it is not conceived in dogmatic terms.
Hinduism is, then both a civilization and a conglomerate of religions, with neither a beginning, a founder, nor a central authority, hierarchy, or organization.
Every attempt at a specific definition of Hinduism has proved unsatisfactory in one way or another, the more so because the finest Indian scholars of Hinduism, including Hindus themselves, have emphasized different aspects of the whole".
In his celebrated treatise "Gitarahasaya", B.G. Tilak has given the following broad description of the Hindu religion: : "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways of salvation are diverse; and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion".
In Bhagwan Koer vs J. C. Bose & ors.(l) it was held that Hindu religion is marvellously catholic and elastic.
Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship.
Its social code is much more stringent, but amongst its different castes and sections, exhibits wide diversity of practice.
No trait is more marked of Hindu society in general than its herror of using the meat of the cow.
This being the scope and nature of the religion, it is not strange that it holds within its fold men of divergent views and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hindu religion.
(1) Cal.
483 It will be advantageous at this stage to refer to page 671 of Mulla 's A Principles of Hindu Law (Fourteenth Edition), where the position is stated thus: : "The word 'Hindu ' does not denote any particular religion or community.
During the last hundred years and more it has been a nomenclature used to refer comprehensively to various categories of people for purposes of personal law.
It has been applied to dissenters and non comformists and even to those who have entirely repudiated Brahminism.
It has been applied to various religious sects and bodies which at various periods and in circumstances developed out of or split off from, the Hindu system but whose members have nevertheless continued to live under the Hindu law and the Courts have generally put a liberal construction upon enactments relating to the personal laws applicable to Hindus".
In paragraph 6 of Chapter I of Mulla 's aforesaid Treatise, the following have been enumerated as persons to whom Hindu law applies: "(i) not only to Hindu by birth, but also to Hindus by religion, i.e. converts to Hinduism; (ii) to illegitimate children where both parents are Hindus; (iii)to illegitimate children where the father is a Christian and the mother is a Hindu, and the children are brought up as Hindus.
But the Hindu law of coparcenary, which contemplates the father as the head of the family and the.
sons as coparceners by birth with rights of survivorship, cannot from the very nature of the case apply to such children; (iv) to Jains, Buddhists in India, Sikhs and Nambudri Brahmins except so far as such law is varied by custom and to Lingayat who are considered Sudras; (v) to a Hindu by birth who, having renounced Hinduism, has reverted to it after performing the religious rites of expiation and repentence.
Or even without a formal ritual of reconversion when he was recognised as a Hindu by his community; (vi) to sons of Hindu dancing girls of the Naik caste converted to Mahomedanism, where the sons are taken into the family of the Hindu grandparents and are brought up as Hindus; (vii) to Brahmos; to Arya Samajists; and to Santhals of Chota Nagpur and also to Santhals of Manbhum except so far as it is not varied by custom; and 484 (viii) to Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act, 1872.
" This enumeration is based upon decisions of various courts relating to old uncodified Hindu law.
In Lingappa vs Esudasen(l) which related to maintenance, it was held that Hindu law does not apply to the illegitimate children of a Hindu father by a Christian mother who are brought up a Christians.
This decision indirectly leads to the conclusion that legitimate children of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu law.
In Mothey Anja Ratna Raja Kumar vs Koney Narayana Rao & ors.(2) whole approving the observations made in Ananthaya vs Vishnu(3) this Court inter alia held that under the Mitakshara law, an illegitimate son is entitled to maintenance as long as he lives, in recognition of his status as a member of his father 's family.
Under the codifying Acts namely the , the , the Hindu Minority and Guardian ship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956, the orthodox concept of the term 'Hindu ' has undergone a radical change and it has been given an extended meaning.
The aforesaid codifying Acts not only apply to Hindus by birth or religion i.e. to converts to Hinduism but also to a large number of other persons.
According to explanation (b) to section 2(1) of the , Hindu Adoption and Maintenance Act, 1956 and as also according to explanation (ii) to section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu.
In the present case, Sridharan is a Hindu by birth and was lawfully married to Rosa Maria Steinbchler.
Even after his marriage, he did not renounce Hinduism but continued to profess that religion.
Having been begotten out of the aforesaid valid and lawful wedlock, Nicolas Sundaram is a legitimate child and lineal descendant of Sridharan.
There is no material on the record to show that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that he became a convert to another faith.
Sridharan has also unequivocally acknowledged and expressly declared that he and his son, Nicolas Sundaram formed a Hindu undivided family.
This declaration in the circumstances is sufficient, as also found by the High Court? to establish that Nicolas Sundaram was brought up as a Hindu member of the family to which his father belonged.
At page 290 of his Treatise on Hindu Law, and Usage (Eleventh Edition), Mayne says that a child in India, under ordinary circumstances, must be presumed to have his father 's (1) (2) A.I.R. 1953 S.C. 433.
(3) 17 Mad.
485 religion, and his corresponding civil and social status.
He, there A fore, have no hesitation in holding that Nicolas Sundaram is a Hindu and he could validly be a member of the Hindu undivided family headed by his father and be governed by Hindu law.
Section 21 of the Special Marriage Act which has been heavily relied upon by the Revenue has, in our opinion, no bearing on the present case.
That section provides that succession to the property of a person whose marriage has been solemnized under the and the property of the issue of such marriage shall be governed by the provisions of the (XXXIX of 1925).
In other words, the section guarantees inter alia to the issue of the person whose marriage has been solemnized under the a collateral statutory right of succession to the estate of the latter in case he dies intestate.
It does not in any way impair or alter the joint family structure between an assessee and his son.
Nor does it effect, as observed by the High Court, the discretion vested in a Hindu assessee to treat his properties as joint family properties by taking into his fold his Hindu sons so as to constitute joint family properties.
For the foregoing reasons, we are of the opinion that the aforesaid question referred to the High Court was rightly answered by it on both the occasions.
In the result, we find no merit in these appeals which are dismissed with costs.
M.R. Appeals dismissed.
[/INST]Schedule II, Article 11 of the Court Fees prescribes a sum of Rs. 2/ as court fees in the case of a memorandum of appeal presented to a High Court when the appeal is not from a decree or order having the force of a decree.
The Tribunal appointed under the dismissed the petition filed by the appellant claiming certain sums from the respondents.
In appeal to the High Court from the decision of the Tribunal did not amount to a decree within the meaning of section 2(2) of the Code of Civil Procedure.
The taxing Judge, to whom question of payment of court fees was referred, came to the conclusion that the appellant should pay ad valorem court fees under Schedule I, Article 1 of the Court Fees Act.
On the question whether the decision of the Tribunal was a decree within the meaning of section 2(2) C.P.C. Allowing the appeal to this Court, ^ HELD: The memorandum of appeal in the instant case falls within the ambit of Schedule II, Article 11 of the Court Fees Act and the view of the taxing Judge that ad valorem court fees were payable under Schedule I Article 1 was legally erroneous.
[683C] (1) (a) In the definition of "decree" contained in section 2(2) of the Code of Civil Procedure, three essential conditions are necessary: (i) that the adjudication must be given in suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by a civil or revenue court.
[677E F] Under the 1951 Act, special Tribunal was created to enquire into the claims of displaced debtors or creditors.
It cannot be called a court in any sense of the term because the legislature had made a clear distinction between a Tribunal and a courts.
Secondly, since proceedings before a Tribunal statute with an application and not with a plaint the other important ingredient of a decree is wholly wanting.
Thirdly the claim before the Tribunal had been described as a preceding rather than a suit.
Therefore, none of the requirements of a decree is to be found in the decision given by the Tribunal even though the legislature may have described the decision given by the Tribunal even though the legislature may have described the decision as a decree.
A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of the Court Fees Act.
[677G H] (b) The term "decree" used in Schedule II, Article 11, is referable to a decree as defined in section 2(2) of the Code of Civil Procedure.
As the decision of the Tribunal in the instant case does not fulfil the requirements of a decree, 665 it is not a decree within the meaning of Schedule II, Article 11 of the Court Fees Act.
[678D] Mannan Lal vs Mst.
Chhotaka Bibi ; Ram Prasad vs Tirloki Nath, ; Dawood Karim Ashrafi vs City Improvement Board.
; Antala Gope vs Sarbo Gopain, AIR [1962] Pat. 489; Mrs. Panzy Fernadas vs Mrs. M. F. Cusoros & others AIR [1963] All. 153; Dundoppa vs
S G. Motor Transport Company.
AIR [1966] Mys,. 150; Irshad Husain vs Bakshish Hussain ; Harrish Chandra Chatteree vg.
Bhaoba Tarini Debi, 8 C.W.N. 321; Taxing Officer, High Court Appellate side vs Jamnadas Dharamdas ILR ; Barras vs Aberdeen Steam Trawling and Fishing Company ; 411; Parmanand Lokumal and others vs Khudabadi Bhaibund Co operative Credit Bank Ltd. and others, AIR [1958] Raj. 146; The Punjab National Bank Ltd. vs The American Insurance Company Ltd. ILR and section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. AIR , referred to.
Parmanand Lokumal and others vs Khudabadi Bhaibund Co opertive Credit Bank Ltd. and others, AIR [1958] Cal.
675; Punjab National Bank Ltd. vs Firm Isardas Kaluram AIR ; Kishandas vs Parasram AIR and Sita Ram vs Mool Chand, ,. not approved.
(c) Where a legislature uses an expression bearing a well known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood.
Therefore, when the Court Fees Act uses the word "decree" which had a well known legal significance, the legislature must be presumed to have use this term in the sense in which it is which it is understood in the Civil Procedure Code.[678F; 679B] Barras vs Aberdeen Steam Trawling and Fishing Company ; , 411.
referred to.
There is no force in the contention of the respondent that under section 5 of the Court Fees Act the decision of the taxing Judge was final and could not be re opened in any court and as such no appeal under Article 136 was maintainable.
Even though the order of the taxing Judge may be final under section 5, the power of this Court under Article 136 will over ride any stamp of finality given by a statute.
The finality under section 5 cannot derogate from the power conferred by the Constitution on the Supreme Court.
[683E] section Rm Ar.
section Sp.
Satheppa Chettiar vs section Rm.
Ramanathan Chettiar , held inapplicable.
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<s>[INST] Summarize the judgementCivil Appeal No. 3796 of 1984.
Appeal by Special leave from the Judgment and Order dated the 24th & 27th of September, 1982 of the Karnataka High Court in W.P. No. 1089 of 1981.
V.C. Mahajan, R.N. Foddar & N.S. Das Behi, for the Appellant.
A.K. Goel for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question for consideration in this appeal by Special Leave is whether the Government of a State can be treated as the 'appropriate Government ' under section 2(a) of the (hereinafter referred to as 'the Act ') in relation to any industrial dispute concerning the office of the Regional Provident Fund organisation established by the Central Government for that State under the (hereinafter referred to as 'the Provident Funds Act ').
The facts of the case are these: The Government of Karnataka made a reference under section 10 of the Act referring a certain dispute between the Regional Provident Fund organisation established under the Provident Funds Act for the State of Karnataka and its employees to the Additional Industrial Tribunal, Bangalore and the said reference came to be registered as A.I.D. 3 of 1979 on the file of the Tribunal.
Before the Tribunal the Regional Provident Fund organisation raised among other pleas two preliminary objections to the reference viz. that the activity carried on by the management was not an industry and that the State Government was not the appropriate Government under the Act in relation to the dispute between it and its employees.
The Tribunal took up for consideration the two issues arising out of the above two objections first and after hearing the management and the workmen negatived both the contentions of the management.
819 It held that the business carried on by the Regional Provident Fund Organisation was an industry and that the State Government was the appropriate Government under the Act.
Aggrieved by the above findings of the Tribunal the management filed a writ petition under Article 226 of the Constitution before the High Court of Karnataka questioning the correctness of the said findings.
Before the learned Single Judge who heard the writ petition the management did not, however, press its case as regards the finding that the Provident Fund organisation was an industry.
The only contention urged by it was that the State Government being not the appropriate Government under the Act in so far as the dispute was concerned it could not refer the dispute under section 10 of the Act.
The learned Single Judge accepting the said contention of the management quashed the reference.
Aggrieved by the decision of the learned Single Judge, the workmen filed an appeal before the Division Bench of the High Court.
The Division Bench reversed the decision of the learned Single Judge and held that the State Government was the appropriate Government for purposes of the dispute in question.
The management has filed this appeal after observing the leave of this Court under Article 136 of the Constitution against the judgment of the Division Bench.
Under section 10 the Act, where the appropriate Government is of opinion that any industrial dispute exists or apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule to the Act, to Tribunal for adjudication.
Section 2(a) of the Act defines the expression 'appropriate Government ' as in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by the industries specified in clause (i) of section 2(a) of the Act, the Central Government and in relation to any other industrial dispute, the State Government.
It may be stated here that the organisation under the Provident Funds Act was not one of the industries specified in section 2(a)(i) of the Act when the reference was made in this case.
The contention of the management is that the industry in question falls under section 2(a)(i) of the Act as it is an industry carried on under the authority of the Central Government and hence the Central Government alone can act as the appropriate Government in relation to a dispute concerning it.
820 Entry 24 of the concurrent List in the Seventh Schedule to the Constitution specifically refers to the subject 'employees ' provident funds '.
The Central Government could have, if it intended to do so, started a provident funds scheme for the benefit of the workers in exercise of its executive power.
Before any such action was taken the subject of legislation for instituting compulsorily contributory funds in industrial undertakings was discussed several times at tripartite meetings in which representatives of the Central and State Governments and of employers and workers took part.
Ultimately it was decided that the Central Government should initiate appropriate legislation in Parliament for the said purpose.
Accordingly an ordinance was issued in 1951 incorporating the decisions arrived at such meetings.
Later on in 1952 the Provident Funds Act came to be passed replacing the ordinance.
The Provident Funds Act contemplates the administration of the Scheme framed under section 5, the Family Pension Scheme framed under section 6A and the Employees ' Deposit linked Insurance Scheme, under section 6C(1) of that Act.
The Provident Funds Act applies to the whole of India except the State of Jammu and Kashmir.
Under section 5A of the Provident Funds Act the Central Board of Trustees (hereinafter called 'the Central Board ') is constituted by the Central Government to administer, subject to the provisions of section 6A and section 6C, the fund vested in it in such manner as may be specified in the Scheme and to perform such other functions as it may be required to perform by or under the provisions of the Scheme, the Family Pension Scheme and the Insurance Scheme.
Under section 5B of the Provident Funds Act the Central Government may, after consultation with the Government of any State, by notification in the Official Gazette, constitute for that State a Board of Trustees which is for purpose of brevity referred to as the State Board in such manner as may be provided for in the Scheme.
The crucial provision in section 5B which, if we may say so with respect, has missed the attention of the Division Bench of the High Court is sub section (2) thereof.
It says that a State Board shall exercise such powers and perform such duties as the Central Government may assign to it from time to time.
Under Paragraph 4 of the Scheme framed under the Provident Funds Act, it is provided that until such time as a State Board is constituted for a State the Central Government may set up a Regional Committee for the State which will function under the Central Board.
There are three funds which are created by the Provident Funds Act.
They are (i) The Fund i.e. the Provident Fund 821 established under the Scheme, (ii) the Family Pension Fund established under the Family Pension Scheme and (iii) the Insurance Fund established under the Insurance Scheme.
They are not confined to ans particular State or Region.
Each of them is a fund into which the amount collected under the respective Schemes is credited irrespective of the State or the Region where they are collected.
Under Paragraph 54 of the Scheme all expenses relating to the administration of the fund including those incurred on Regional Committees have to be met from the Fund.
For purposes of the administration of the provident Funds Act, the appropriate Government in relation to an establishment belonging to or under the control of the Central Government or in relation to an establishment connected with a railway company, a major port, a mine or an oil field or a controlled industry or in relation to an establishment having department or branches in more than one State is the Central Government and in relation to any other establishment, the State Government under section 2(a) of the Provident Funds Act.
We are not concerned with this definition in this case as the question to be decided arises under the Act.
The Provident Funds Act and the Scheme clearly show that the Central Government has the final voice in many matters including appointments to various offices referred to therein.
It is not necessary to refer to then in detail here.
What has got to be determined in this case is whether the activity carried on under the Provident Funds Act is being carried on by or under the authority of the Central Government as provided in section 2(a) of the Act or not in order to decide whether the Central Government is the appropriate authority under the Act or not.
Section 2(a) of the Act came up for consideration by this Court in Heavy Engineering Mazdoor Union vs State of Bihar & Ors.
( ') The Court observed in that case that there being nothing to the contrary, the word 'authority ' in section 2(a) of the Act must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act.
The words 'under the authority of ' were construed by this Court in that case as meaning pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master.
Applying this test, the Court held that a manufacturing industry carried on by a company registered under 822 the authority of the Central Government even though the entire capital of the company had been contributed by the Central Government and under Articles of Association of the company the Central Government could exercise control over the affairs of the company.
The Court, however, proceeded to observe that the question whether a corporation is an agent of the State would depend upon the facts of each case.
It referred to the decision in Graham vs Public Works Commissioner(1) and said that where a statute setting up a Corporation so provided, such a Corporation could be easily identified as the agent of the State and that it was possible for the Crown with the consent of Parliament to appoint or establish certain officials or bodies who were to be treated as agents of the Crown even though they had the power of contracting as principals.
Merely because the officials of Government or certain bodies constituted by the Government for purposes of administration are given the garb of a statutory corporation they do not cease to be what they truly are.
At this stage it is appropriate to refer to certain observations made by Mathew, J. in Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh Raghuvanshi & Anr.(2) on the true characteristics of public corporations established under a statute.
The learned Judge observed at page 646 thus: "A public corporation is a legal entity established normally by Parliament and always under legal authority, usually in the form of a special statute, charged with the duty of carrying out specified governmental functions in the national interest, those functions being confined to a comparatively restricted field, and subjected to control by the executive, while the corporation remains juristically an independent entity not directly responsible to parliament.
A public corporation is not generally a multi purpose authority but a functional organisation created for a specific purpose.
It has generally no shares or shareholders.
Its responsibility generally is to Government.
Its administration is in the hands of a Board appointed by the competent Minister.
The employees of public corporation are not civil servants.
It is in fact, 823 likely that in due course a special type of training for specialized form of public service will be developed and the status of the personnel of public corporation may more and more closely approximate to that of civil service without forming part of it.
In so far as public corporations fulfil public tasks on behalf government, they are public authorities and as such subject to control by government." In the instant case, it is to be noted that the activity carried on by the Central Board or the State Boards under the Provident Funds Act is not similar to the activity carried on by any private trade or manufacturing business like the one involved in the case of the Heavy Engineering Corporation 's case (supra).
The activity is one traceable to Article 43 of the Constitution which requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural or industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
It is a part of the programme of every welfare State which our country is.
Institutions engaged in matters of such high public interest or performing such high public functions as observed by Mathew J. in Sukhdev Singh 's case (supra) by virtue of their very nature performed governmental functions.
They are truly the agents of the Government and they function under the authority of the Government as provided in the statute because the Central Government could have, for the purpose of introducing the scheme of compulsory contribution to the provident fund, set up an organisation or a department in absence of the corporate bodies evisaged in the Provident Funds Act.
The Division Bench of the High Court was in error in observating that an examination of the organisation showed "that the activities of the Provident Fund" organisation are not governmental in character as they are essentially part of the activities of various industries to which the Provident Funds Act applies.
' We have no doubt that the business of the Provident Funds organisation is governmental in character and does not pertain to industry to which the Provident Funds Act applies.
The management and workmen of industries to which the Provident Funds Act applies contribute to the funds established under that Act.
The business of the statutory bodies functioning under that Act is not the business of industries whose managements and workmen 824 make contributions to the said funds.
In addition to the above feature, the provisions of section 5B (2) of the Provident Funds Act which reads: "A State Board shall exercise such powers and perform such duties as the Central Government may assign to it from time to time" clearly envisage that the State Board is an agent of the Central Government.
In the absence of the State Board, the Regional Committee constituted under Paragraph 4 of the Scheme is required to function under the control of the Central Board.
The Regional Provident Fund Commissioner who is appointed by the Central Government is also under the control of the Central Board and the Central Government.
Having regard to the various provisions of the Provisions Funds Act and the nature of the business carried on by the Central Board, the State Board, the Regional Committee and the Regional Provident Fund Commissioner, we are of the view that the Division Bench of the High Court was not right in holding that the State Government was the appropriate Govt.
under section 2(a) of the Act in the matter of industrial disputes arising between the management and the workmen of the Regional Provident Fund organisation.
It has to be mentioned here that even the learned counsel for the workmen fairly stated that the Central Government was appropriate Government under the Act in so far as the dispute in question is concerned He, however, submitted that the Central Government may now be directed to refer the dispute pending before the Tribunal at Bangalore to an Industrial Tribunal quickly as the case has been pending for nearly 5 years.
We have no doubt that the Central Government will immediately consider the above question and take appropriate action.
In the result the order of the Division Bench of the High Court is set aside and the order of the learned Single Judge is restored.
The reference made by the State Government is quashed.
The appeal is accordingly allowed.
No costs.
H.S.K. Appeal allowed.
[/INST]The Income Tax Officer forwarded a certificate under section 46(2) of the Indian Income Tax Act to the Collector for recovering the arrears of Income Tax from the assesses as if they were arrears of land revenue.
The Collector proceeded under section 48, Madras Revenue 971 Recovery Act, and had the assessee arrested and confined in jail.
Upon a petition for a writ of habeas corpus the High Court ordered the release of the assessee holding that section 48 of the Madras Revenue Recovery Act and section 46(2) Of the Indian Income Tax Act were ultra vires.
The Collector appealed.
Held, that section 48 Of the Madras Revenue Recovery Act, and section 46(2) of the Indian Income Tax Act were not ultra vires and neither of them violated articles 14,19, 21 and 22 of the Constitution.
Where the personal liberty of a person is lawfully taken away under article 21, i.e., in accordance with a procedure established by a valid law, no question of the exercise of fundamental rights under article 19(1)(a) to (e) and (g) can be raised.
A.K. Gopalan vs The State of Madras, ; , followed.
An arrest for a civil debt in the process of or in the mode prescribed by law for recovery of arrears of land revenue does not come within the protection of article 22.
State of Punjab vs Ajaib Singh ; , followed.
Section 46(2) of the Indian Income Tax Act does not offend article 14 and there is no violation of article 21 where a person is arrested under section 48, Madras Revenue Recovery Act, in pursuance of a warrant of arrest issued for the recovery of the demand certified under section 46(2) of the Indian Income Tax Act.
Purshottam Govindji Halai vs Shri B. M. Desai, Additional Collector of Bombay, ; , followed.
Section 46(2) of the Indian Income Tax Act gives authority to the Collector to recover arrears of tax as if it were an arrear of land revenue.
Section 48 of the Madras Revenue Recovery Act read with section 5 make it clear that the arrest of the defaulter is one of the modes by which the arrears of land revenue can be recovered, to be resorted to if the said arrears cannot be liquidated by the sale of the defaulter 's property.
Such an arrest is not for any offence committed or a punishment for defaulting in any payment.
Section 48 of the Madras Revenue Recovery Act does not require the Collector to give the defaulter an opportunity to be heard before arresting him.
But the Collector must have reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade payment.
Such belief must be based upon some material, which a Court may look into in appropriate cases, to find out if the conditions laid down in the section have been fulfilled.
The Collector has also the power to release the defaulter if the amount due is paid.
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