judgement:
ivil Appeal Nos. 466 and 2375 of 1969.
From the Judgment and Order dated 6 8 78 of the Kerala High Court in Appeal Suit Nos. 27/63 and 245/63.
K. section Ramamurthy, Miss Pushpa Nambiar and A. section Nambiar for the Appellant in C.A. 466/69 and R 1 in C.A. 2375/69.
P. Govindan Nair, section Balakrishnan and K. L. Rathi for R. 1 in C.A. 466/69 and Appellant in CA 2375/69.
N. Sudhakaran, section L. Aneja and K. L. Aneja for RR 2 3, in C.A. 466/69 and For RR 3 4 in C.A. 2375/69.
The Judgment of the Court was delivered by SAKARIA, J.
These two appeals on certificate arise out of execution petition No. 118 of 1962 on the file of the Subordinate Judge, Trichur, filed by P. Meriappa Gounder (hereinafter referred to as the plaintiff) to execute the, decree of the Supreme Court in C.A. 129/56 62 passed on April 22, 1958.
The common facts, out of which these appeals arise, are as follows: The plaintiff filed a suit on August 23, 1950 in the District Court, Trichur, for 'specific performance of an agreement, dated May 22, 1950, made by Soliappa Chettiar (hereinafter referred to as defendant 1) to sell a factory known as "Sivakami Tiles Works", for a consideration of Rs. 90,003/ .
The plaintiff made an advance payment on that very date of a sum of Rs. 5,003/ to defendant 1.
It was stipulated in the agreement that the sale deed must be executed and registered on or before July 15, 1950.
It was further provided that out of the balance of sale consideration, Rs. 50,000/ would be paid by the plaintiff at the time of the registration and for the remaining Rs. 35,000/ , the plaintiff was to execute a mortgage of the suit property to be redeemed on or before May 31, 1951.
It was further agreed that on payment of Rs. 50,000/ at the time of registration, the plaintiff would be put in possession of the suit property.
The plaintiff pleaded that he was ready and willing to perform his part of the agreement, but came to know that defendant 1 was trying to evade his obligation under the agreement.
Accordingly, the plaintiff sent a registered notice, dated July 7, 1950, through his lawyer to defendant 1, to which the latter replied the same day, that the factory was in possession of one Neelakanta Iyer as lessee, who had refused to give up possession and therefore, it had become impossible to give effect to the agreement to sell the factory, as giving possession to the plaintiff was a condition precedent to the execution of the sale deed.
The plaintiff further pleaded that the suit property was really in possession of defendant 1 and the alleged lease.
in favour of Neelakanta Iyer was a sham transaction and a device to evade payment of income tax, and hence defendant 1 was bound to carry out the terms of the agreement to sell.
The suit was contested by defendant 1 (who originally was the sole defendant).
His case was that, although there was an agreement to sell the suit property, it had been made clear at the time when negotiation for sale was going on, that the factory was in the possession of Neelakanta Iyer as lessee and that it was a condition precedent to the sale that Neelakanta Iyer would surrender his right under the lease and give up possession and that if he refused to do so, the agreement to sell would not be given effect to.
The defendant urged Neelakanta Iyer to surrender the possession, but he refused to do so.
In the circumstances" the contract for sale had become incapable of performance.
He denied that the lease in favour of Neelakanta was a sham transaction.
63 Pending the suit, T. V. Kochivareed (the deceased husband of the A appellant, Lucy Kochivareed in C.A. 466/69) obtained an assignment of the lease (exhibit D 3) from Neelakanta Iyer on March 5, 1951.
Since Kochivareed was later on, when the suit was pending in the Supreme Court impleaded as defendant 3, for the sake of convenience the appellant in C.A. 466/69, will hereinafter be referred to as defendant 3 On March 8, 1951, defendant 1 executed a sale deed of the suit property in favour of George Thatil, who is the nephew of defendant 3, and will hereinafter be referred to as defendant 2.
Like defendant 3, he also joined as defendant 2 at his own request, when the appeal was pending in this Court.
On December 23" 1950, the Court appointed a Receiver to manage the suit property.
On March 21, 1951, defendant 3 obtained a lease of the suit property at a rent Or Rs. 15,000/ for a period of one year from the Receiver.
The term of the lease was extended for one more year and two years ' rent, amounting to Rs 30,000/ was collected and deposited in the Court by the Receiver.
The District Court, Trichur, on August 28, 1952, decreed the suit for specific performance and mesne profits at a reduced rate of Rs. 15,000/ per annum, instead of Rs. 30,000/ per annum claimed by the plaintiff.
Against the decree of the Trial Court, two appeals were filed in the High Court one by defendant 3 and the other by defendant 2.
The High Court allowed the appeals and dismissed the plaintiff 's suit by a judgment dated March 31, 1953.
Aggrieved, the plaintiff filed C.A. 129/56 in this Court.
The plaintiff ' appeal was allowed by this Court as per its judgment and decree, dated April 22, 1958.
Since a good deal of argument centers round the construction of this Court 's decree, dated April 22, 1958, it will be pertinent to extract here the material part of that decree.
"(a) That the appellant herein do deposit within thirty days of the receipt in the decree of this Court the sum of Rs. 85,000/ in the District Court of Trichur and that on the aforesaid amount being deposited the said District Court of Trichur do forthwith give notice thereof to the respondents abovenamed and that on the aforesaid amount of Rs. 85,000/ being deposited respondents Nos. 2 and 3 herein, namely section M. R. Solaiyappa Chettiar and George Thatil do within 30 64 days from the date of receipt of the notice of the said deposit execute and register a sale deed in favour of the plaintiff (Appellant) in respect of the suit property.
(b) . . . (c) That the respondents above named do pay to the appellant the cost incurred by him in the Court of the District Judge, Trichur, in Suit No. 183 of 1950 and the costs incurred by him in the former High Court of. . . (d) . . . (e) .
AND THIS COURT DOTH FURTHER DE CLARE that appellant shall be entitled to: (a) mesne profits against such of the respondents (Is may have been in possession of the property except during the period that the property was in the custody and management of the receiver appointed by the trial court; (b) the net sum collected by the Receiver during his management; and (c) credit for all such sums as he may have advanced to the receiver under the direction of the Court for the management of property; AND THIS COURT DOTH ACCORDINGLY DIRECT that the trial Court do hold an enquiry about the mesne pro fits and such sums as may be found to be due on inquiry against the second and third respondents in respect of the mesne profits be deducted from the amount to be deposited in cash in the Court by the appellant aforesaid in accordance with clause (a) supra, and do direct the payment of the remaining amount, if any, to the third respondent (defendant 2) who is the assignee of the second respondent (defendant 1) pendent lite;" (Emphasis supplied) On September 12, 1958, the plaintiff filed an application in the District Court for execution of the said decree, dated April 22, 1958" in respect of all the reliefs allowed thereunder.
After the decree holder had deposited a sum of Rs. 85,000/ , as directed in the decree, the execution application was eventually made over to the Subordinate Judge, Trichur.
As per the decree, the sale deed was executed on March 16" 1959! by the Court on behalf of defendants 1 and 2 in favour of 65 the plaintiff and the possession of the property in consequence thereof was delivered to him on March 29. 1959.
Thereafter, the plaintiff filed Miscellaneous Petition No. 229/60 in the Trial Court.
Before the Court, defendant 3 on November 11, 1958, filed objections that he was not iliability for mesne profits, as he was never in possession and occupation of the suit property.
He further contended that his liability for mesne profits, if any.
was limited to the period commencing from the date of notice of the deposit in Court of the amount of Rs. 85,000/ till the date of delivery of possession and that the plaintiff was not entitled to interest on mesne profits, or on costs by way of restitution.
Defendant 2 contended that he was not liable, for mesne profits as he had never been in possession and management of the suit property, and that the entire liability, if at all any, for mesne profits was that of defendant 3, who had been in exclusive possession of the property.
On December 22, 1962, the court of first instance passed orders in respect of mesne profits, costs etc.
It found that defendant 1, 2 and 3 were jointly and severally liable to the plaintiff for a sum of Rs. 10,162.67 on account of costs of the Trial Court and the Supreme Court.
The Court further found that defendant 2 was separately liable to pay to the plaintiff, a sum of Rs. 11,941.63 consisting of three items, namely, Rs. l, 239.02 on account of costs recovered by defendant 2 from decree holder and payable by former with interest by way of restitution, Rs. 2,577.01 on account of costs in the High Court, and Rs. 8125/ on account of mesne profits from the factory from the date of suit till date of exhibit D 3.
The aggregate! amount under these two heads came to Rs. 23,103.70, which was allowed to be set off against Rs. 85,000/ deposited in Court by the plaintiff and the balance was directed to be paid to the second defendant 's mother, his assignee.
Apart from the sum of Rs. 10,162.67 jointly and severally payable by the third and second respondents, the District Court found that the third defendant was separately liable to pay the plaintiff a sum of Rs. l 57.086.81 consisting of these items: (a) Rs. 7,298.l0, by way of restitution on account of costs recovered from the decree holder including interest thereon; (b) Rs. 39,975.00 Rent deposited and withdrawn by him together with interest thereon; (c) Rs. 1,177.00, costs payable by him for the appeal in the High Court; and 66 (d) Rs. 1,08,636.71 net mesne profits payable by him from April 1, 1963 to the date of delivery of possession, during which period, he was found to be in possession and management.
After giving credit of a sum of Rs. 48,321 deposited by the third defendant in Court on March 9, 1959, a net sum of Rs. 1,08,765.81 was directed to be realised by the plaintiff from the estate of defendant 3 in the hands of his legal representative (appellant in C.A. 466/69).
By the same order, the Court dismissed Misc.
Petition No. 229/60 that had been filed by the plaintiff for determination of the extent of waste committed upon the property by defendant 3.
Aggrieved by that Judgment and Order, Lucy Kochivareed, wife of defendant 3, as well as the plaintiff and the second defendant, preferred appeals in the High Court of Kerala.
By a common judgment, dated August 6, 1968, the High Court partly allowed the appeals filed respectively, by the plaintiff and the legal representatives of defendant 3; but dismissed the appeal (A.S. 248/63) filed by defendant 2.
The High Court,, inter alia, affirmed the finding of the Trial Court that the third defendant was in sole and exclusive possession of the suit property during the period in question.
The Trial Court 's findings with regard to the quantum of mesne profits per year, were not found satis factory.
The High Court assessed the mesne profits at a flat rate of Rs. 15,000/ per year and determined the obligations of the parties accordingly.
The High Court further found that the second and third defendants were jointly and severally liable to pay Rs. 10,200/ by way of costs, and the second defendant alone was liable to pay Rs. i 1,000/ by way of restitution, costs in the High Court and mesne profits to the plaintiff, and that the aggregate of Rs. 21,200/ be set off against the sum of Rs. 85,000/ deposited by the plaintiff and the balance be paid to the mother of defendant 2.
Aggrieved by the judgment, dated August 8, 1968, of the High Court, Lucy Kochivareed, wife of the deceased defendant 3, has filed Civil Appeal 466 of 1969; while the plaintiff has preferred Civil Appeal No. 2375 of 1969.
Both the appeals will be disposed of by this common judgment.
We will first take up Civil Appeal 466 of 1969 filed by the widow of defendant 3.
The main contention of Mr. K. section Ramamurthy, learned counsel for the appellant (Luci Kochivareed), is that if the decree, dated April 22, 1958, passed by this Court in C.A. 129/56 is properly construed in the 67 light of the material on record and the law on the subject, then three consequences inevitably follow: (i) Both defendant 2 and defendant 3 would be deemed to be in possession of the suit property during the period in question.
The possession of defendant 2 was juridical or legal possession of an owner, he being the purchaser of the property from defendant l; while that of defendant 3 was on actual permissive possession with the consent of defendant 2.
Defendant 2 and defendant 3 being in the position of joint tort feasors would be jointly and severally liable for mesne profits or compensation.
This being the case, the plaintiff was bound to suffer a set off to the purchase price (Rs. 85,000/ ) deposited by him, against his claim for mesne profits against defendant 3.
But after the decree of this Court, the plaintiff in pursuance of a collusion between him and defendant 2, allowed the High Court to cancel the security given by defendant 2 for withdrawal of Rs. 62,900/ out of the purchase price deposited by the plaintiff.
The plaintiff was thus precluded by his conduct from claim in that much amount from defendant 3.
After setting off the entire deposit of Rs. 85,000/ , defendant 3 will be liable only, for the balance of the mesne profit, jointly with defendant 2.
(ii) The plaintiff 's right to possession of the property under the decree accrued when he deposited the price in Court and thereafter obtained the conveyance in his favour on March 16, 1959.
The possession of defendants 2 and 3 as against the plaintiff became wrongful only from the date on which the conveyance was executed in his favour, at any rate on the date (September 12, 1958) on which he fully deposited the price in Court.
(iii) The period for which the mesne profits have been awarded., is to be restricted to the one permissible under Order XX Rule 12(1) (c) of the Code of Civil Procedure.
Such period in the light of this provision would be the one commencing from the date the institution of the suit and ending on the expiration of three years from the date of the decree of the Trial Court.
The expression "the decree", occurring in the aforesaid clause (according to the counsel) means the decree of the Trial Court.
In other words, the maximum period for which mesne profits can be awarded and would be deemed to have been awarded is three years from the date of the decree of the Trial Court; and the Courts below were wrong in awarding mesne profits for a period of more than six years, commencing from the date of the institution of the suit till the delivery of possession in accordance with the decree of this Court to the plaintiff.
68 Upon the above premises, Mr. Ramamurthy maintains that the plain tiff will not be entitled to any mesne profits because his right to possession did not accrue within three years of the date of the decree of the Trial Court.
Such a right, according to the counsel, accrued to the plaintiff only on April 22, 1958 when his amended suit for specific performance and possession and future mesne profits was decreed.
In the alternative, as already noticed, counsel submits that mesne profits could not be awarded for any period prior to the date (September 12, 1958) on which the plaintiff deposited the price, because his right to possession accrued on that date and not earlier In support of his contentions, Shri Ramamurthy has cited a decision of this Court in Chitturi Subbanna vs Kudapa Subbanna & Ors.(l) He has also referred to some other rulings, wherein some general principles have been enunciated as to who can be made liable for mesne profits.
On the other hand, Mr. Govindan Nair, learned counsel for the plaintiff, submits that the. decree" dated April 22, 1958 of this Court is crystal clear.
There is no ambiguity in it.
Read in the light of this Court 's judgment, it unmistakably shows that whosoever, out of the defendants was/were in actual possession, would be liable for the mesne profits from the date of the suit till the delivery of possession.
It is pointed out that in the courts below, the positive stand taken by defendant 3 was that he was never in possession of the Suit property and therefore, was not liable for mesne profits.
It was never the case of defendant 3 that he was in derivative possession under defendant 2.
Counsel submits that defendant 3 should not be allowed to take a stand diametrically opposed to the one taken by him in the courts below.
It is further submitted that the decree of this Court was final decree so far as it laid down that the liability for the mesne profits shall be fixed on the basis of the defendant found in actual possession of the suit property.
Before dealing with the contentions canvassed on both sides, it will be profitable to notice the general principles relating to the liability formesne profits.
Mesne profits being in the natural of damages, no invariable rule governing their award and assessment in every case, can be laid down and "the Court may mould it according to the justice of the case".
Even so, one broad basic principle governing the liability for mesne profits is discernible from Section 2(12) of the Code of Civil Procedure which defines 'mesne profits ' to mean "those profits which the person in wrongfil possession of property actually received or might with ordinary (1) ; 69 diligence have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession".
From a plain reading of this definition, it is clear that wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant 's liability therefor.
As a rule, therefore, liability to pay mesne profits goes with actual possession of the land.
That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits.
But, where the plaintiff 's dispossession, or his being kept out of possession can be regarded as a joint or concerted act of several persons, each of them who participates in the commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his confederates.
ln such a case where the claim for mesne profits is against several trespassers who combined to keep the plaintiff out of possession; it is open to the Court to adopt either of the two courses.
It may by its decree hold all such trespassers jointly and severally liable for mesne profits, leaving them to have their respective rights adjusted in a separate suit for contribution; or, it may, if there is proper material before it, ascertain and apportion the liability of each of them on a proper application made by the defendant during the same proceedings.
Another principle, recognised by this Court in Chitturi Subbanna vs Kudapa Subbanna (ibid) 'is that a decree under Order XX Rule 12 of the Code, directing enquiry into mesne profits, howsoever expressed, must be construed to be a decree directing the enquiry in conformity with the requirements of Rule 12(1)(c), so that the decree holder is not entitled to mesne profits for a period (commencing from the date F of the institution of the suit) extending beyond three years from the date of the preliminary decree.
Again, possession through another, such as a tenant, may be sufficient to create liability for mesne profits if 'such possession is wrongful.
We will now deal with the contentions advanced by Mr. Ramamurthy, in the light of these principles.
The first argument, as already noticed, is that both defendants 2 and 3 were in possession of the suit property during the period in question.
It is contended that the possession of defendant 2 was the legal possession of an owner while that of defendant 3 derivative possession of a lessee or licensee under the former.
70 A perusal of the decree dated April 22, 1958, of this Court, extracted in a foregoing part of this judgment, show 's that it was a composite decree, partly final, partly preliminary.
It was final in so far as it granted the reliefs of specific performance and possession on deposit of the price by the plaintiff.
It was preliminary inasmuch it directed an inquiry with regard to the assessment of mesne profits, and as to who out of the defendants was/were liable for payment of those mesne profits.
But, it laid down in no uncertain terms that only such of the defendants would be liable for mesne profits "as may have been in possession of the property".
Construed in conformity with the legal principles enunciated above, this direction in the decree, means that only the defendant or defendants found in actual possession and enjoyment of the property would be liable for mesne profits.
In the courts below, at no stage, defendant 3 took up the position that he was in derivative possession of the property under defendant 2.
On the contrary, in his objection petition filed before the District Court on November 11, 1958, defendant 3 emphatically asserted that he "is not liable for mesne profits for the suit property as he was never in pos session and occupation of the same".
Defendant 3 further vehemently pleaded that it was never intended at any time that he (defendant 3) "should be a lessee of the property nor was he a lessee at any time".
In para 3 of his petition, defendant 3 further pleaded that the purchase of the factory was made in favour Of defendant 2, with money advanced by him (defendant 3), and the intention then was that the suit property should be worked by defendant 2 with funds advanced by defendant 3 who should be "recouped from the profits accrued from the proper y or otherwise in respect of the purchase money advanced by him as also the advances for the working expenses".
In paragraph 5, he further pleaded that "in any event he cannot be held liable for any amount more than what is stipulated in the lease deed (EX.
I) in favour of Neelakantha Iyer".
There is not even a whisper in the pleadings that defendant 2 and defendant 3 were joint tort feasors and therefore, jointly and severally liable for mesne profits.
The plea now pressed into argument by Mr. Ramamurthy is thus a complete somersault of the position that had been taken in the courts below.
The Court of first instance after an exhaustive.
consideration of the overwhelming evidence, oral and documentary, on record reached the finding that ever since March 5, 1951, defendant 3 was, while defendant 71 2 was not, in actual control, management and possession of the suit property, and therefore, in terms of the decree dated April 22, 1958 of this Court, defendant 3 alone would be liable for mesne profits of the property.
In appeal, the High Court found that "the Court below was perfectly right in holding that the 3rd defendant was in sole and exclusive possession during the period in question and it is idle for him 3 to pretend otherwise".
Indeed, the third defendant himself had repeatedly admitted in various documents that he was in possession.
In his application, Ex 77(a), made in the Court of first instance, on March 7, 1951, the defendant admitted that he was in possession in pursuance of assignment of lease made.
in his favour by Neelakantha Iyer on March 5, 1951.
This lease has been found by this Court to be a sham transaction.
Further, defendant 3 on March 21, 1951, executed a lease in favour of the Receiver appointed by the Court.
In this cease also, he admitted that he had been in possession of the property since March 5, 1951.
The lease executed by defendant 3 in favour of the Receiver ensured for a period of two years on a yearly rental of Rs. 15,000/ and he deposited Rs. 30,000/ ' therefor as rental in Court.
Then, the Bank accounts of the factory (except for a short period from March 25, 1953 to November 11, 1954) were throughout in the name of the third defendant as lessee thereof.
We have absolutely no reason to differ from this concurrent finding of the courts below that the third defendant was in sole, actual possession and control of the suit property from March 3, 1951, when he obtained the alleged assignment of the lease in his favour from Neelakantha Iyer.
In terms of the aforesaid decree of this Court, therefore, defendant 3 alone is liable for mesne profits in respect of the period he was in p(excepting (excepting the period during which the property was under he management of the Court Receiver).
As regards the appellant 's contention that the amount deposited by the plaintiff towards the price should have been set off against the liability of defendant 3 for mesne profits, it may be observed that, there is nothing in the decree, dated April 22, 1958, of this Court which say 's that such a set off should be allowed.
On the contrary, it allowed deduction of the amounts found due against defendant 1 and defendant 2 from the deposit of Rs. 85,000/ to be made by the plaintiff towards the price, and further directed that after such deduction, the balance of such deposit made by the plaintiff" if any, shall be paid "to the third 1 respondent (defendant 2) who is the assignee of the 'second respondent (defendant l ) pendente lite." 72 Assuming arguendo, that both defendants 2 and 3 were, liable for mesne profits jointly and severally, then also, the plaintiff could, at his option, recover the whole of the amount of mesne profits from either of them; and how such inter se liability of the defendants was to be adjusted or apportioned, was a matter between the defendants only.
The plaintiff was not bound to suffer a set off in favour of defendant 3, merely because defendant 2 or his assignee withdrew the price deposited by the plaintiff without furnishing any security for its refund or adjustment towards the liability of defendant 3, there being no evidence, whatever, on record to show that such withdrawal was the result of any collusion or conspiracy between the plaintiff and defendant 2 against defendant 3.
Assuming further, for the sake of argument, that defendant 2 and defendant 3 were ' both acting in concert to keep the plaintiff out of pos session, it was not necessary for the courts below to decide the issue with regard to apportionment of liability and its adjustment between defendants 2 and 3.
Indeed, the adoption of such a course would have militated against the finding that defendant 3 alone was in exclusive possession and control of the suit property ever since March 5, 1951.
We therefore, negative the first contention of the appellant.
This takes us to the second and third points pressed into argument by Mr. Ramamurthy.
It is to be noted that defendant 3 entered into possession of the suit property under an assignment of sham lease from Neelkantha Iyer on March 5, 1951 during the pendency of the plaintiff 's suit which was institute`d on August 25, 1950.
The plaintiff had deposited Rs. 50,000/ some time after the presentation of the plaint Under the agreement for sale, dated May 22, 1950, made by defendant 1 in favour of the plaintiff, the total sale consideration was fixed at Rs. 90,003/ .
Out of it, Rs. 5,003/ had been paid to defendants on the very date of the agreement.
It was further stipulated that out of the balance, Rs. 55.000/ would be paid by the plaintiff purchaser at the time of the registration of the sale deed which was to be executed and registered on or before July 15, 1950.
It was further stipulated that on payment of the further sum of Rs. 50,000/ , the plaintiff would be entitled to be put in possession of the suit property.
Thus, when defendant 3 entered into possession, first, under the garb of an assignee of a sham lease from Neelakantha Iyer, and then further purchased the property with his own funds in favour of defendant 2, pendente lite, he was fully conscious that he was purchasing a litigation.
His possession was,, therefore, wrongful qua the plaintiff from its very inception 73 The material part of Rule 12(1) of Order XX of the Code of Civil procedure, provides: "Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court may pass a decree (a) for the possession of the property; (b) . . . . (ba) . . . (c) directing an inquiry as to rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decree holder, (ii) the expiration of possession by the judgment debtor with notice to the decree holder through the Court, or (iii)the expiration of three years from the date of the decree, whichever event first occurs.
" D Mr. Ramamurthy argued, if we may say so with respect, somewhat inconsistently, that the word "decree" in sub clause (iii) of clause (c) of the aforesaid rule 12(1), means the decree for possession and mesne profits which the trial court ought to have passed, and that in this view of the matter, the period of three years mentioned in sub clause (iii) will be counted from August 28, 1952, the date of the trial court 's decree, whereby mesne profits at the reduced rate of Rs. 15,000/ instead of Rs. 30,000/ per annum claimed by the plaintiff, were awarded.
In that view of the matter, according to the counsel, the plaintiff was not entitled under the law to get a decree for mesne profits beyond August 27, 1955.
It is pointed out that since the plaintiff had, as a result of the acceptance of the defendants ' appeal and dismissal of his suit by the High Court, withdrawn the deposit of Rs. 50,000/ on August 19, 1953 and he had not redeposited the amount until February g, 1959, he was not then entitled to possession and, in consequence, to any mesne profits during this period.
The argument is certainly ingenious, but untenable, being founded on fallacious premises.
The period of three years mentioned in sub clause (iii) of clause (c) of Rule 12(1) is to be computed from the date of the decree of this Court, i.e. from April 22, 1958 and it will expire on the date on which possession was delivered or relinquished by the defendant in favour of the decree holder pursuant to that decree.
In other words, the decree mentioned in sub clause 6 196SCI/79 74 (iii) of the aforesaid clause (c), would be the appellate decree, dated April 22, 1958, of this Court.
The period of three years mentioned in the said sub clause is, therefore, to be reckoned fro`m April 227 1958.
The words "whichever event first occurs" in sub c1ause (iii) imply that the maximum period for which future mesne profits can be awarded, is three years from the date of the decree for possession and mesne profits, finally passed.
The courts below, therefore, while holding that defendant 3 was liable to pay mesne profits for a period of about 6 years commencing from March 5, 1951/March 21, 195l till the delivery of possession in September, 1958 (less the period during which the property was under the management of the Receiver), were acting in conformity with the law and the terms of the decree, dated April 22, 1958, of this Court.
We, therefore, reject these contentions, also.
Another contention canvassed by Mr. Ramamurthy was that the courts below have wrongly disallowed deduction for interest on the deposit of Rs. 50,000/ , which the plaintiff had withdrawn on August 19, 1953 and had redeposited on February 9, 1959.
It appears to us that in all fairness, the defendant is entitled to deduction for interest for the period from August 19, 1953 to February 9, 1959 on the sum of Rs. 50,000/ , which, at ,6 per cent per annum, after deducting the interest for the period during which the property was under the management of the Receiver.
(According to the agreed calculations made the counsel for the parties it works out to Rs. 14,000/ approximately.
We see no reason why deduction of this amount be not allowed from the mesne profits assessed against defendant 3.
We will now take up Civil Appeal No. 2375 of 1969 filed by the plaintiff Mr. Govindan Nair, learned counsel for the plaintiff appellant.
has contended (i) that mesne profits ought to have been awarded at the Rate of Rs. 25,000/ per annum.
The High Court was in error in awarding the same at the rate of Rs. 15,000/ ; (ii) that the High Court was not justified in reducing the rate on interest from 6 per cent per annum awarded by the Trial Court to 4 per cent per annum; (iii) that interest at 6 per cent per annum was rightly awarded by the court of first instance on the sum of Rs. 30,000/ , which was two years rental paid by defendant 3, under the lease taken from the Receiver for the period from August 19, 1953 to March 9, 1959, and the High Court was in error in disallowing that interest; and 75 (iv) that the Courts below were not justified in denying costs to the plaintiff in the inquiry as to mesne profits or in appeal arising therefrom.
We will deal with these contentions ad seriatim.
Contention (i): In this connection, Mr. Nair drew our attention to Exhibits D 8 to D 15, which are Balance Sheets and Profit & Loss Accounts of the Sivakami Tile Works, relating to the period from March 31, l953 to November S, 1958.
These documents were prepared at the instance of the third defendant for the purposes of his Income tax returns.
The High Court found that these Balance Sheets and Profit & Loss Accounts prepared for Income tax puropses were suspicious documents and by themselves were not proof of the profits derived.
Mr. Nair has no quarrel with this finding.
He, however, contended That the High Court ought to have worked out the real profits by taking into account the quantity of clay purchased according to these documents.
In this connection, it is submitted that according to the evidence produced on the side of the plaintiff about five candies of clay are required for producing 1000 small tiles and even according to the evidence of the second defendant as C.P.W. 2, 51 to 6 candies are required for 1000 small tiles.
We are not impressed by this argument.
The High Court has fully considered the evidence produced on the side of the plaintiff.
It noted that the plaintiff, also, had not produced any cogent evidence to show what were the profits earned by him by working the factory in dispute for the period of one year preceding the date of his examination.
By the time plaintiff appeared in the witness box, he had been working this factory for about one year.
In the alternative, Mr. Nair submitted that even during the period of two years when the Receiver was there and defendant 3 worked the factory as a lessee under the former, he had made a profit of Rs. 22,000/ .
Our attention has, also been drawn to the document (exhibit D 8), that the income for the first year ending 1952 was Rs. 20,000/ .
The point pressed into argument is that the highest profit made by him according to these Balance Sheets and Profit & Loss Accounts during any year by defendant 3, should be taken as the rate for calculating the mesne profits.
The contention does not appear to tenable.
Once it was found that these Balance Sheets and Profit & loss Accounts were not reliable, nor the evidence produced by the plaintiff, the only reliable evidence left on the file was the rate at which the factory was leased out 76 by the Receiver to defendant 3.
When the lease for the second year was granted to defendant 2 by the Receiver on a rental of Rs. 15,000/ , the plaintiff should have objected that the rent was less or he could himself take the lease on paying higher rent.
The High Court was, therefore, not wrong in holding that this rent fixed under the lease granted by the Receiver represented the real rental value of the factory during the year in question and in the absence of any other reliable evidence for assessing the profits actually earned or which, with due diligence, could have been earned the mesne profits may reasonably be fixed at Rs. 15,000/ per annum.
We, therefore, negative the first contention of Mr. Nair, Contention (ii): The Trial Court had awarded interest at the rate of 6 per cent per annum on the mesne profits assessed by it.
The High Court reduced that rate to 4 per cent, with the observation that having regard to all the circumstances of the case, including that the plaintiff had the use of the sum of Rs. 85,000/ which he was to pay towards the price of the property a rate of 4 per cent per annum would be reasonable and just.
Even Mr. Ramamurthy has not been able to support this reduction in the rate of interest.
It was after a long drawn out litigation that the plaintiff got possession of the property.
The Trial Court, therefore rightly awarded the interest at the rate of 6 per cent per annum.
We, therefore, accept this contention and direct that interest as part of the mesne profits assessed in this case, shall be payable at the rate of 6 per cent per annum upto March 29, 1959 when possession was delivered in pursuance of the decree of this Court, to the plain tiff and further interest at 6 per cent per annum on the outstanding amount shall be payable till the date of payment.
Contention (iii): A sum of Rs. 30,000/ , being the rent collected by the Receiver from the third defendant, was deposited in Court.
This amount was withdrawn by the third defendant on August 19, 1953 following the dismissal of the plaintiff 's suit, by the High Court.
When the plaintiff 's appeal succeeded in this Court and a decree was passed in his favour by this Court, then defendant 3 redeposited the sum of Rs. 30,000/ , only on March 9, 1959.
The Trial Court had awarded interest at 6 per cent per annum on this amount of Rs. 30,000/ for the period from August 19, 1953, the date on which the defendant withdrew that deposit, until March 9, 1959, the date when he redeposited the sum.
The High Court has disallowed interest on this account 77 for the aforesaid period on the ground "that the Supreme Court does not award that".
We are unable to agree with this reasoning.
It overlooked the fact that interest on the sum of Rs. 30,000/ was being claimed under Section 144 of the Code of Civil Procedure, by way of restitution.
Section 144 in terms says that for the purpose of the restitution, the Court may make any orders, including orders for the payment of interest, damages, compensation and mesne profits which are properly consequential on variation or reversal of the decree.
There is nothing in the decree, dated April 22, 1958, of this Court which expressly or by implication prohibited the payment of interest on this sum, by way of restitution.
The Trial Court had rightly allowed interest on amount for this period at 6 per cent per annum, and we restore the same direction.
Contention (iv): The argument is that costs have been unfairly denied to the plaintiff by the Courts below.
We do not agree.
The Courts below could not have been oblivious of ' the fact that defendant 3 has since died and the respondent is his widow.
We, therefore, do not want to interfere with the discretion of the Courts below in the matter of costs.
For the foregoing reasons, we, partly allow the plaintiff 's appeal (Civil Appeal No. 2375 of 1969) to the extent indicated above, with proportionate costs.
We will dismiss the defedant 's appeal (Civil Appeal No. 466 of 1969) except to the extent that the defendant shall be allowed a set off in the sum of Rs. 14,000/ , being the interest on the sum Or Rs. 50,000/ for the period from August 19, 1953 (the date of the withdrawal of the deposit by the plaintiff) to the date when he redeposited it.
Interest on the outstanding amount at 6 per cent per annum shall be payable till the date of payment.
In Civil Appeal 466 of 1969, however, the parties will bear their own costs in this Court.
CA 2375/69 allowed in part.
CA 466/69 S.R. dismissed with modifications.

dataset_name: IN-Abs

summary:
Meriappa Gounder respondent No. 1 in C.A. 466/69 and appellant 1 in C.A. 2375/69 filed a suit on August 23, 1950 in the District Court, Trichur, for specific performance of an agreement dated May 22, 1950 made by one Soliappa Chettiar.
The said Soliappa Chettiar pleaded inability to perform the contract in view of the refusal of one Neelakanta Iyer a lessee of the factory to give up possession.
Pending the suit Late Kochivareed, husband of the appellant in C.A. 466/69 obtained an assignment of the lease from Neelakanta Iyer on March 5, 1951.
On March 8, 1951 Soliappa Chettiar executed a sale deed of the suit property in favour of one George Thatil, a nephew of Kochivareed.
In the course of the proceedings the trial court appointed a Receiver to manage the suit property.
On March 21, 1951, Late Kochivareed obtained a lease, of the suit property at a rent of Rs. 15,000/ for a period of one year which was renewed for another year from the Receiver and a sum of Rs. 30,000/ SO collected as rent for two years was deposited in the Court by the Receiver.
The District Court on August 28, 1952 decreed the suit for specific performance and mesne profits at a reduced rate of Rs. 15,000/ per annum, instead of at Rs. 30,000/ per annum as claimed.
Against the decree two appeals were filed in the High Court by Kochivareed and George Thatil.
The High Court allowed the appeals and dismissed the suit by its judgment dated March 21, 1953.
The appeal filed by Meriappa Gounder (CA 129/56) was allowed by this Court as per its judgment and decree dated April 22, 1958.
On the question of the liability of the mesne profits, the present appeals arose out of interpretation of the direction (e) of this Court 's decree dated April 22, 1958.
Allowing the appeals by certificate in part the Court ^ HELD: 1.
Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case can be laid down and the "Court may mould it according to the justice of the case".
Even so one broad basic principle governing the liability for mesne profits is discernible 59 from section 2(12) of the Code of Civil Procedure which defines 'mesne profits ' to mean 'those profits which the person in wrongful possession of property actually received or might with ordinary deligence have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession." [68G H, 69A] Wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defandant 's liability therefor, Generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits.
But, where the plaintiff 's dispossession, or his being kept out of possession can be regarded as a joint or concreted act of several persons, each of them who participants in the Commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his confederates.
Possession through another, such as a tenant may be sufficient to create liability for mesne profits, if such possession is wrongful.
[69A C and G] 2.
In such a case, where the claim for mesne profits is against several tresoassers who had combined to Keep the plaintiff out of possession, it Is open to the Court to adopt either of the two courses.
It may by its decree hold all such trespassers jointly and severally liable for mesne profits leaving them to have their respective rights adjusted in a separate suit for contribution; or it may, if there is proper material before it ascertain and apportion the liability of each of them on a proper application made by the defendant during the same proceedings.
[69C D] 3.
A decree under Order XX Rule 12 of C.P.C., directing enquiry into mesne profits, howsoever expressed must be construed to be a decree directing the enquiry in conformity with the requirements of Rule 12(1)(c), 80 that the decreeholder is not entitled to mesne profits for a period (commencing from the date of the institution of the suit) extending beyond three years from the date of the preliminary decree.
[69E Fl Chitturi Subhanna vs Kudappa Subbanna, ; ; referred to.
The words "whichever event first occurs" in sub clause (c)(iii) of clause I of Rule 12 of Order XX Civil Procedure Code imply that the maximum period for which future mesne profits can be awarded is three years from the date of the decree for possession and mesne profits, finally passed.
The period of three years is to be computed from the date of decree of this Court i.e. from April 22, 1958 and it will expire on the date on which possession was delivered or relinquished by the defendant in favour of the decreeholder pursuant to that decree.
In other words, the decree mentioned in sub clause (iii) of clause (c) would be the appellate decree dated April 22, 1958 of this Court.
The period of three years mentioned in the said subclause is, therefore, to be reckoned from April 22, 1958.
[73G H, 74A B] 5.
Section 144 of the Code of Civil Procedure, in terms, says that for the purpose of the restitution, the Court may make any orders, including orders for the payment of interest, damages compensation and mesne profits which are properly consequential on variation or reversal of the decree.
[77A B] There is nothing in the decree, dated April 22, 1958 of this Court which expressly or by implication, prohibits the payment of interest on the sum of 60 Rs. 30,000/ withdrawn by defendant 3 by way of restitution.
The trial court had rightly allowed interest.
[77B C] 6.
The decree dated April 22, 1958 of this Court was a composite decree, partly final, and party preliminary.
It was final in so far as it granted the reliefs of specific performance and possession on deposit of the price by the Plaintiff.
It was preliminary in as much as it directed an inquiry with regard to the assessment of mesne profits and as to who out of the defendants was/were liable for payment of those mesne profits.
But? it laid down in no uncertain terms that only such of the defendants would be liable for mesne profits "as may have been in possession of the property".
This direction in the decree means that only the defendant or defendants found in actual possession and enjoyment of the property would be liable for mesne profits.
[70A C] In the instant case: (a) The third defendant was in sole, actual possession and control of the suit property from March 3, 1951, when he obtained the alleged assignment of lease in his favour from Neelakanta Iyer.
In terms of the decree of this Court, therefore defendant 3 alone is liable for mesne profits in respect of the period he was in possession (excepting the period during which the property was under the management of the Court Receiver).
[71E F] (b) The contention that the possession of defendant 2 was the legal possession of an owner while that of defendant 3 was derivative possession of a lessee or licensee under the former is not correct, since at no stage, in the Courts below defendant 3 took up the position that he was in derivative possession of the property under defendant 2.
Nor was there even a whisper in the pleadings that defendant 2 and defendant 3 were joint tortfeasors and therefore jointly and severally liable for mesne profits.
[69H, 70C, G] (c) There is nothing in the decree of this Court dated April 22 1958, indicating that the amount deposited by the plaintiff towards the price should have been sel off against the liability of defendant 3 for mesne profits.
On the contrary, it allowed deduction of the amounts found due against defendant 1 and defendant 2 from the deposit of Rs. 85.000/ to be made by the plaintiff towards the price, and further directed that after such deduction, the balance of such deposit made by the plaintiff, if any, shall be paid to the third respondent (defendant 2) who is the assignee of the second respondent (defendant 1) pendente lite.
[71F H] (d) The plaintiff was not bound to suffer a set off in favour of defendant 3, merely because defendant 2 or his assignee withdrew the price deposited by the plaintiff without furnishing any security for its refund or adjustment towards the liability of defendant 3, there being no evidence whatever, on record to show that such withdrawal was the result of any collusion or conspiracy between the plaintiff and defendant 2 and defendant 3.
Even assuming that both defendants 2 and 3 were liable for mesne profits jointly and severally, then also, the plaintiff could at his option.
recover the whole of the amount of mesne profits from either of them; and how such inter se liability of the defendants was to be adjusted or apportioned was a matter between the defendants only.
[72A C] (e) Defendant 3 entered into possession of suit property under a l assignment of sham lease from Neelakanta Iyer on March 5, 1951 during the 61 pendency of the plaintiffs suit, which was instituted on August 25, 1950.
The A plaintiff had deposited Rs. 50,000/ sometimes after the presentation of the plaint.
Under the agreement of the sale, dated May 22, 1950 made by defendant 1 in favour of the plaintiff, the total sale considerations was fixed @ Rs. 90,003/ .
Out of it Rs 5,003/ had been paid to defendant I on the very date of the agreement.
It was further stipulated that out of the balance, Rs. 50,000/ would be paid by the plaintiff purchaser at the time of the registration of the sale deed which was to be executed and registered on or before July 15, 1950.
It was further stipulated that on payment of the further sum of Rs. 50,000/ the plaintiff would be entitled to be put in possession of the suit property.
Thus when defendant 3 entered into possession, first under the garb of an assignee of sham lease from Neelkanta Iyer, and then further purchased the property with his on funds in favour of defendant 2 pendente lite, he was fully conscious that he was purchasing a litigation.
His possession was therefore wrongful qua the plaintiff from its inception [72E H] (f) Disallowance of the claim for deduction for interest on the deposit of Rs. 50,000 which the plaintiff had withdrawn on August 19, 1953 and had redeposited on 9 2 1959 is incorrect.
The defendant is entitled to interest @ 6% per annum for the said period, after deduction the interest for the period during which the property was under the management of the Receiver.
[74D E] (g) The plaintiff`s claim for mesne profits @ the rate of Rs. 25,000/ has correctly been negatived.
Since the plaintiff did not object to the lease granted by the Receiver to defendant 3 on an annual rental of Rs. 15,000/ and since he did not produce any other reliable evidence, the High Court was not wrong in holding that the mesne profits should be on the basis of this rental value of Rs. 15,000/ [76A C] (h) The plaintiff, in view of the long drawn out litigation is entitled to interest @ 6% per annum upto March 29, 1959.
[76E F]


judgement:
Civil Appeal Nos.
2062 2063/ 78.
Appeals by Special Leave from the Judgment and Order dated 20 9 78 of the Madhya Pradesh High Court in Civil Misc.
Petition No. 403/78.
A. K. Sen, K. K. Adhikari, section K. Gambhir and Miss B. Ramrikhyanai for the Appellant.
N. C. Upadhaya, K. P. Gupta and B. B. Tawakley for Respondents 1 2.
The Judgment of the Court was delivered by KRISHNA IYER, J.
If King Midas suffered from the course of turning into gold everything he touched, Indo Anglian legalism suffers from the pathology of making mystiques of simple words of common usage when they are found in the Corpus Juris.
We cannot afford this luxury of legalistics, the besetting sin of law in action.
This acid comment is provoked by the prolonged debate carried on with logomachic dexterity in this appeal against a meticulous judgment where the semantic complexity and definitional intricacy of innocent words like 'syllabus ', 'courses of instruction ' and 'publish ' and the procedural mechanics for prescribing text books for secondary education set out in a fasciculus of sections have been investigated.
Law, in a democratic, pluralist society spreads over vast spaces where the Constitution of developing countries, like ours, commands the Slate to adventure into a profusion of welfare measures and commits to the judicial process the interpretation of legislation, not to obfuscate but to objectify the meaning of enactments.
The Justice System ceases to be functional if courts do not make the technology of statutory construction serve the betterment of society.
In Cardozo 's lofty diction: "We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without.
None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read ." (1) If a broad and viable reading of statutory language were not adopted by Judges filled with the wish to make things work according to social justice courts may be classed with the dinosaurs.
(1) The Nature of the Judicial Process by Benjamin N. Cardozo.
P. 174, 45 The State of Madhya Pradesh, alive to its obligation to promote education in widest commonalty, with accent on quality and cost, among the impressionable generation, undertook the task of statutory regulation of teaching material for 'primary education ', 'middle school education ', and 'secondary education '.
Then followed, in conformance with the rule of law, executive action, legislative measures, regulatory procedures and infra structures, necessary for the incarnation of a State directed but expert oriented scheme of pre university education.
A painstakingly accurate and comprehensively detailed statement of the project, with an integrated analysis of the statutory provisions and erudite enunciation of the law, is found in the judgment of Bhagwati, J. in Naraindas(1), if we may say so with respect, that a repeat performance here again may be supererogatory.
We read that ruling into this judgment by incorporations, as it were, and content ourselves with a skeletal projection of the legislation with special reference to the key sections, viz, sections 3, 4 and 5 of the Madhya Pradesh Act No. 13 of 1973.
Its title is Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam (hereinafter referred to, for short, as the 1973 Act).
The respondent before us who was the petitioner before the High Court is a private publisher.
It may be cynical to say that textbooks are commodity for consumers of school education and there is big money in the trade especially when the private sector in the book E business has been enjoying a ready market provided by the proliferation of schools and the obligatory purchase of text books, once Government prescribes them.
So, behind the veil of educational excellence formulation of syllabi and competent text books is the vast profit pouring into private publishers.
In our system, unalloyed public interest litigation, through organisations crusading in the field, is yet 'a consummation devoutly to be wished ', and private vested interests are the vociferous ventriloquists of public causes.
Democratic participation in the justice process gains reality only when popular organs blossom from the desert and enter the litigative oasis with fighting faiths.
Here the respondent successfully challenged before the High Court the validity of the prescription of the State 's text book for 'Rapid Reading ', an item in the syllabus for secondary schools.
Once Government books were chased out, the respondent filled the vacuum since prior to the entry of the State his book on the subject had admittedly been legally in vogue.
The State has, by special leave, come up in appeal and secured a stay of operation of the judgment of the High (1) Naraindas Indurkhva vs State of Madhya Pradesh & Ors. ; 46 Court, and its books are back in circulation in the schools.
brief calendar of events shows that since the opening of schools this academic year Government text books have been in use uptil now, barring for about a month between the judgment of the High Court and the stay ordered by this Court.
This bears upon moulding the relief since the benign power under article 226 is a special instrument of justice which, with flexible pragmatism and genius for equity inhibits social trauma even while upholding individual rights.
The writ jurisdiction is geared to community good.
There is a trichotomy of school education in Madhya Pradesh as in many other States Primary, Middle and Secondary.
We are concerned in this case with the text book controversy for secondary schools.
The Board of Secondary Education, Appellant No. 2, was constituted under Act No. 23 of 1965 which also conferred power on it to prescribe courses of instruction in such branches of secondary education as it deemed fit.
Indeed, the Board was a functional entity with expert capability and entrusted with secondary education in its many facets.
Even the power to make regulations was given to the Board and it did make such regulations providing for appointment of Committees on Courses which, in turn, could lay down syllabi in the various subjects and recommend suitable text books when required.
The courses approved by the Committee went to the Board and when sanctioned by the Board found their way in the printed prospectus which served as the guide book for study and examination for the students.
All that we need emphasise here is that the provisions of the 1965 Act and the regulations framed by the Board took good care of the Rule of Law as against behavioral caprice of administrative organs in this branch of education.
In 1973 the legislature enacted Act 13 of 1973, referred to earlier in this Judgment.
The provisions of this Act form the basis of the powers claimed by the appellants and the nidus of rights of the respondent alleged to have been violated.
The scheme of the statute runs as follows: Section 2 contains definitions and we are concerned particularly with section 2(d) which tells us what the legislature means by the expression 'syllabi '.
The Section also defines 'text book ', although there is not much quarrel about its connotation in the case before us.
One of the basic disputes between the parties turns on the conceptual clarity of 'syllabi ' as defined in 2(d).
Section 3 clothes the State Government and the Board with powers vis a vis laying down of syllabi.
To narrow the scope of the dispute we may straightway state that section 3(2) empowers the Board 47 to lay down 'syllabi ' in the case of secondary education.
We may have to take a close up of this provision a little later.
But suffice it to say for the present that the syllabus for 'Rapid Reading ', wh ch is the bone of contention before us, is within the province of the Board to lay down.
We may vivify the discussion by quoting the provisions of direct concern in this case and they are sections 2(d), 3 and 5. "2.(d) syllabi" means a document containing courses of instructions for each standard of primary education, middle school education and secondary education; 3.(1) Subject to the provisions of sub section (2) the State Government may, from time to time, in relation to primary education and middle school education and the Board may, from time to time, in relation to secondary education lay down syllabi and publish the same in such manner as may be prescribed.
(2) The syllabi laid down under the authority of the State Government in the case of primary education and middle school education and by the Board, in the case of the secondary education and in force immediately before the appointed day shall be the syllabi laid down and published for the purpose of sub section (1).
4.(1) The State Government may, by order, prescribe the text books according to syllabi laid down under section 3: Provided that text books for secondary education shall not be prescribed without prior con sultation with the Board.
(2) The text books prescribed by the State Government or the Board according to the syllabi referred to in sub section (2) of section 3 and in force immediately before the appointed day shall, till they are changed in accordance with the provisions of this Act, be the text books prescribed for the purpose of sub section (1).
48 (3) As from the appointed day, no books other than the text books prescribed under sub section (1) or referred to in sub section (2) shall be used in any approved school or recognised school for imparting instructions in accordance with syllabi in primary education, middle school education or secondary education.
The State Government may, if it considers it necessary so to do, undertake the preparation, printing or distribution of text books itself or cause the text books to be prepared, printed or distributed through such agency as it may deem fit on such terms and conditions as may be prescribed.
" Section 2(d) conceputalises 'syllabi '; section 3 statutorises the modus operandi for fixing the 'syllabus '.
Once the syllabus is fixed, the follow up is the prescription of text books in accordance with the syllabus.
Section 4 makes the State Government, the competent authority, to prescribe text books in accordance with the syllabus laid down under section 3.
Of course, even the provisions of text books for secondary education must be made by Government only after prior consultation with the Board.
This is obviously intended to ensure the quality of the text books which sometimes suffers at the hands of unenlightened departmental officers or unheeding political bosses too hubristic to listen to experts in the field.
It is vital to notice that until valid prescription of text books under section 4 (1) the books prescribed and in vogue immediately before the change shall continue; that is to say, the legislature has taken care to avoid a gap when there would be no text books for the students to study and take their examinations.
The scheme of section 4 is for the State Government to prescribe text books.
This may be done in one of the two ways.
Government may select from the private sector when text books are offered by publishers, if they satisfy quality control, price, social perspective and other relevant aspects.
Indeed, many publishers compete in the text book market because it assures purchasers and profit.
However, for a variety of good reasons the State Government may consider it necessary to depart from the practice of picking and choosing from the private sector.
May be, books are of sub standard quality; may be, the paper on which they are printed or the manner and design may be unsatisfactory; may be the cost is such that the poor children may be 49 priced out.
It may also be that Government thinks that more excellence and better educational direction may be imparted to the impressionable generation of students at the secondary school level by the public sector getting such text books compiled in conformity with the syllabi laid down by the concerned authority.
Section 5, therefore, makes it perfectly legitimate for the State Government to n undertake the preparation, printing and distribution of text books itself or cause them to be so done through such agency as it may deem fit and on such terms and conditions as may be prescribed.
In short, the relevant provision creates a facultative public sector for text book production and distribution.
What is significant to note is that the departure from the private sector and the "nationalisation" of text book manufacture may be undertaken only if the State Government "considers it necessary so to do".
Once it comes to that judgment, the competence to deprive the private sector and entrust to the public sector is beyond challenge.
In the present case, one of the subjects of secondary education is "Rapid Reading".
The syllabus has to be laid down in this behalf.
Text books need to be prescribed in conformity with the syllabi and then a decision has to be taken by the Government either to choose extant text books from the private publishers or take over the operation itself if it considers it necessary so to do.
The first appellant, in the present case, chose to exercise its power under section 5 and produced the necessary text book for "Rapid Reading" and distributed it among the students in many schools. 'Until then, the respondent 's books were in use for "Rapid Reading".
Naturally, when his customers vanished and his profit was extinguished he came up to the Court contending that the statutory exercise had not been carried out before preparing E ' and distributing the text books under section 5 and that, for that reason, the Government text books had to be withdrawn as invalid and his books, instead, resuscitated for circulation.
The specific grounds of invalidation relied on by the Writ Petitioner are many and the long Judgment of the High Court has lavished discussion on these aspects.
Counsel have sought to repeat the rival contentions before us.
But we do not think that it is necessary to embark upon the labyrinthine details or prolix analyses which have engaged the learned Judges of the High Court.
Nor do we think that extensive or intensive consideration of the decision in Naraindas 's case (supra) is called for since its ratio is clear and does not come in for serious application in the present dispute.
In this view, we proceed to specificate the precise issues pertaining to the decision as to whether 50 the production and distribution of text books by the State Government, on its own, is liable to be voided on the score of any fatal statutory infirmity.
The laying down of the syllabus is a condition precedent to the prescription of text books, because the courses of instruction follow upon and should be in conformity with the syllabus and text books are in implementation of the courses of instruction.
The first question that falls for consideration, therefore, is as to whether there has been a legally sustainable laying down of the syllabus for "Rapid Reading".
If there has been, the second crucial issue of importance is as to whether the State Government has given consideration to the availability of text books in terms of the 'syllabi ' with the publishers.
If such publishers have offered their text books, Government may consider them from many angles and reach a conclusion that it is necessary for the Government itself to undertake the preparation, printing and distribution of text books in this regard or entrust these operations to a choosen agency.
The question is whether such a consideration had been bestowed by the Government as required by section 5 before it produced and distributed the text books compiled by itself among the students of the secondary schools.
Assuming there is any breach, the next question is whether such non compliance spells invalidation of the text books altogether.
Finally, assuming all the points against the State Government, should the Court make a realistic appraisal of the situation as it exists currently and mould the relief appropriately so that the student community, which has to take the examinations in a couple of months or so, may not be obliged to switch text books belatedly in taking their examinations.
The ultimate concern of the judicial process is not to guarantee the profit of the private producers or to condone every executive sin but, within statutory parameters, to promote the educational welfare of the student community.
The core of the controversy turns on whether there is statutorily solemnised syllabus at all under section 3(2) of the 1973 Act and, whether the State has the facultative power to compile and distribute its own text books under section 5, even if there are private publishers in the field with ready made text books This duplex challenge once disposed of, the other disputes do not merit much discussion.
Naraindas (supra), heavily relied on by the respondent, is impeccable law but inapplicable here.
True many points arise, according to counsel.
But abbreviation, without amputation, does justice to the lis and avoids forensic prolixity, and so we turn the focus on these two points and, in the light of 51 Our answers, structure the relief to promote the interests of the invisible and inarticulate student sector for whose sake the law was made.
The real party, in many litigative battles under article 226, is the community whose processual participation is alien to the adversary system inherited from an individualistic legal culture.
The judges are the guardians of that silent sector until our system of procedure is re structured.
This observation assumes prominence as we shape the remedy finally.
Section 3 as well as section 5 must now come under the legal microscope.
Before that, we must bestow attention on a preliminary plea which respondent 's counsel, encouraged by his success at the High Court level, has urged before us.
He argues that the mere mention of topics in bare outline, such as has been done here by the Board of Secondary Education, does not constitute 'syllabi ' as defined in section 2(d).
To fulfil the statutory requisites, a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law.
If this be valid, no syllabus, no text book; and no text book, the status quo ante; and the book of the respondent being admittedly extant immediately before, it gains legal re incarnation and all the students shall have to do 'rapid reading ' of his book for which they must first buy them.
The Board is the legislative instrument for laying down the syllabi and must be presumed to possess academic expertise sufficient to understand what is a syllabus.
Words of technical import whose signification is familiar for specialists in the field should not be petrified by courts based on verbalism. 'A little learning is a dangerous thing ' and courts should not 'rush in ', tempted by definitional attraction, where experts 'fear to tread '.
Section 2(d) tells us that a syllabus is a document containing courses of instruction.
A broad outline, a brief indication, a demarcation of the topic may well meet with lexical approval.
Moreover, section 2(d) speaks of a 'course of instruction '.
This can be a bare outline, a bald mention of the matter and does not compel particularisation of details, even if it be desirable.
That part is taken care of by the next step of prescription of text books.
A syllabus may helpfully give general features but may not cease to be so solely because only an outline is silhouetted.
For instance, 'music ' without more, is not syllabus, because it may range wildly from weird noises which make music among African tribes but to an Indian ear may offensively amount to 'sound and fury signifying nothing ' to a concord of sweet sounds or continuous flow of micro notes which thrills the West and the East.
But if 'sitar ' or 'violin ' is mentioned it illumines, although it still leaves much for imagination to fill in a hundred details for instruction to be actually imparted in the class.
52 'Courses of Instruction ' in section 2(d) simply means the rubric for teaching, not more, although treacherous vagueness which disables textbook producers from responding to the Government by offering their books may be bad.
It must be a syllabus of courses and so the courses must be spelt out with relevancy, even though with brevity.
To exemplify again, 'Justice ' is not enough, Indian Justice System may fill the bill.
Brief may be, but not blank.
While courts, will not surrender their decisional power to the vagarious experts non interference by courts in fields of specialists, save in gross cases, is a wise rule of guidance.
From this angle, we are not satisfied that for so elusive a subject as 'Rapid Reading ', 'particularise or perish ' should be the test.
The absence of syllabus cannot defeat the case of the State.
We stress, however, that, functionally speaking, the syllabus must tell the publishers and pundits in the concerned field sufficient to enable them to help Government under section 4 to choose text books.
If this minimum is not complied with the court will use the lancet and issue an appropriate writ.
Language permitting, the appropriate interpretational canon must be purpose oriented.
Therefore, the expression "syllabi" must be so interpreted as to fulfil the purpose of sections 3 and 4 which means there must be sufficient information for those concerned to know generally what courses of instruction are broadly covered under the heading mentioned, so that they may offer text books for such courses.
If there is total failure here the elements of syllabi may well be held to be non existent even though experts might claim otherwise.
The law is what the Judges interpret the statute to be, not what the experts in their monopoly of wisdom assert it to be.
Now we move on to section 3 to verify what flaws vitiate the laying down of syllabi.
In this case if we predicate the existence of syllabus the next ingredient it its publication "in such a manner as may be prescribed.
" Publication of the syllabus is thus essential under section 3 and when confronted by this requirement, Shri A. K. Sen, counsel for the State, sought to construe that expression to mean communication by the Board to the Government or other concerned authorities.
To publish, according to him, is to make known to those concerned.
On the contrary, Shri Upadhyaya, counsel for the respondent, argued that "to publish" was more than to communicate to the Government Departments and really meant making known to the community or the concerned section of the community.
Contextually speaking, we are satisfied that 'publication ' means more than mere communication to concerned officials or Departments.
To publish a news item is to 53 make known to people in general; "an advising of the public or making known of something to the public for a purpose" (Black 's Legal Dictionary, p. 1386).
In our view, the purpose of section 3 animates the meaning of the expression 'publish '.
'Publication ' is "the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. an advising of the public; a making known of something to them for a purpose." Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the 'syllabi ' it must publish 'the same ' so that when the stage of prescribing text books according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text books from the private market or compiled under section 5 by the State Government itself.
In our view, therefore, "publication" to the educational world is the connotation of the expression.
Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom.
If this view be sound, the State Government has failed to comply with the requisite of publication of the syllabus before prescribing the text books.
On that ground atone the order of the Government prescribing text books must fail because the condition preceding such prescription, namely, publishing of the syllabi has not been complied with.
We confine our observations only to the item relating to "Rapid Reading ' ' so that there is no need for reopening other subjects and syllabi and to create chaos or uncertainty.
What should be the follow up action that the Court should adopt in issuing the necessary direction on this finding that, for want of publication of the syllabus, the prescription of text books even under section 5 must fail ? Necessarily publication is important and we should insist that the State Government should not dismiss it as a ritual of little moment.
As we have earlier indicated, but may repeat for emphasis that there is an object in publishing the syllabi and this public purpose will be stultified to the prejudice of the school going community if the syllabi ar not made known to the public generally.
Only when they come to know about the syllabi prescribed, representatives in the educational field or in the public sector may be able to tell the State Government what type of text books are available, what kinds of books will make for excellence in teaching and what manner of material will promote 54 the interests of the students in the subjects of study.
If there are existing text books, Government may give consideration for them or may invite opinion of experts on their worth.
Government may pay attention to the cost of the books so made available, their readability, their design and arrangement, the impression that they may produce on the 8 plastic minds and a host of other factors.
All these possibilities may be frustrated if the syllabi are not published.
What has been done in the present case by the State Government is to exercise its power under section 5 to prepare, print and distribute text books of its own compilation.
Certainly, this is well within the power of Government under section 5.
To dispel misapprehension we emphasise that no private publisher has a right under section 4 that his text book shall be prescribed or necessarily considered by Government.
No such right as is claimed by the respondent publisher has, therefore, been violated by the State Government.
We upset Government 's text books, not because the respondent publisher has a right to have his books necessarily considered by the Government, but because the syllabi have not been published prior to the prescription of text books.
We must erase another possible confusion.
Government has plenary power under section 5 to produce its own text books in tune with the syllabi prescribed under section 3.
No private published can quarrel 13 with it on the ground that his profit is affected or that the State sector acquires monopoly in text book production.
The legislature, in its wisdom, has empowered the State to do so and there is no vice of unconstitutionality whatever.
But there is a caveat built into section 5 by the legislature.
Before the State Government undertakes the preparation, printing or distribution of text books or causes them to be so done by any other agency, it must bestow appropriate attention on the wisdom of the policy in the given circumstances.
Section 5 authorises Government to enter the text book field as a monopolist "if it considers it necessary so to do.
" These are weighty words and cannot be slurred over.
Nationalisation of the activity of preparation, printing or distribution of text books is a serious step and resort to that measure calls for a policy judgment.
Government must consider it necessary so to do and this consideration must imply advertence to relevant factors.
Myriad matters, material to a right decision, may be thought of since books are more than collection of information but mental companionship for good or evil.
School children require uplifting books, not such as pollute their minds or inject prurience.
Their creativity must be kindled and not stifled.
The presentation of subjects must be appetising, not inhibiting.
The cost must be within the means of the 55 poor Indian parent.
Availability of sufficient number of books within easy reach so as to avoid a scarcity situation may be yet another criterion.
Indeed, it is beyond exhaustive enumeration to catalogue the considerations.
We do not think that the Court should sit in judgment over Government decisions in these matters save in exceptional cases.
The law is complied with if Government has, before under taking action under section 5, bestowed consideration on matters of relevance which may vary from time to time and from subject to subject.
We need hardly say that Government may like to avoid expenditure from the public exchequer if books, inexpensive and qualitatively acceptable, are easily available.
The decision is that of the Government and it has a wide discretion.
Publishers have no right to complain, and if the mind of the Government has been relevantly applied to the subject, courts must keep their hands off.
The construction we have put upon section 5 gives Government power which is also a responsible power.
Indeed, all public power is a public trust and in that spirit sections 4 and 5 must be executed.
On this basis, the direction that we give is that the State Government will publish, under section 3, the syllabus for 'Rapid Reading ' as a first step.
Thereupon, representations from any relevant quarters, if received, will be considered under section 4 so as to reach a decision on the prescription of the text books according to the syllabus.
This decision may be either to choose some text books available in the field or to compile text books on its own.
If the decision is the latter, Government is perfectly free to undertake preparation, printing and distribution.
It may be right to caution the State while choosing text books from the private sector or preparing such books on their own to remember the vital constitutional values of our nation.
Social justice is the corner stone of our Constitution.
Freedom of expression is basic to our democratic progress.
The right to know, awareness of the implications of a sovereign, secular, socialist republic and its membership and the broad national goals incorporated in the Constitution are fundamental.
When education is a State obligation, when prescription of syllabi and text books falls within the governmental function, when the constellation of values mandated by the Constitution is basic to our citizenship, the play of sections 3, 4 and 5 must respond to this script.
Instruction at the secondary school level must be promotional of these paramount principles.
Ultimately, it is Youth Power that makes for a Human Tomorrow.
The felt necessities of our cultural integration and constitutional creed are fostered essentially at the school level.
Books are not merely the best companions but make or mar the rising generation.
56 We have reached the final.
What remains is to crystallise the conclusions and to formulate the directions.
The syllabus for 'rapid reading ' is not bad as falling short of definitional needs, although it is desirable for the Board to be more expressive when laying it down.
Wilful vagueness in syllabi will invite an adverse verdict. 'Rapid Reading ', as a rubric, in itself, somewhat slippery as a substantive topic and so the syllabus for it also may share that trait.
The new plea urged specifically for the first time at the argument stage in this Court (and controverted by the State) that no syllabus has been laid down, as a fact, for 'Rapid Reading ' is too late to be permitted.
The syllabus for 'Rapid Reading ' suffers invalidation under section 3 because it has not been published.
The publication must precede the prescription af text books under section 4 or their preparation under section 5.
Here the case of the State show that the syllabus was published only on June 30, 1978, while the text books were prescribed in October 1977.
So sections 3 and 4 have been breached and a fresh decision by Government prescribing text books for 'Rapid Reading ' must be taken.
We are not disposed, even as in the case of the plea of no syllabus for 'Rapid Reading ', to consider the nascent discovery of Sri Upadhyaya, counsel for the respondent, that the two text books prescribed for 'Rapid Reading ' were not even in printed existence when they were prescribed.
Judicial proceedings, especially at the earlier stages, should not ordinarily be allowed to become the scene of newly discovered points of contention.
There is no substitute for proper briefs and good home work.
Never can controverted facts he raised de novo here.
We disallow the contention of non existence of text books in print or otherwise, when they were prescribed.
Reverting to the project of providing for the future course of action and to obviate the untowardness of a void in the syllabus and text books, we hold that the State Government shall take a fresh decision under sections 4 and 5 read together.
If publishers of text books or pro bono publico representationists communicate relevant matters bearing on the selection of text books and the wisdom of the State itself under taking the task, Government will give thought to them.
There is no need to wait idefinitely for such representations.
If within one month from they are received, their merits will be examined departmentally.
If, thereafter, Government considers it proper to take over the text book business under section 5 it is free to do so.
We make it clear that the private sector has no "right" and Government 's jurisdiction is wide although the State need not be allergic to private publishers if books of excellence, inexpensive and well designed, are readily available.
57 These directions take care of the future.
But what about the current academic year ? To change horses mid stream may be disastrous.
Throughout the better part of the year, except for around a month, Government text books have been in use.
The examinations are impending.
To harass the young alumni by putting them through fresh books of the respondent (though in circulation last year) is an avoidable infliction.
Therefore, for the nonce, Government books for 'Rapid Reading ' will continue in this year 's classes.
We direct so.
Before the next academic year begins, Government will decide, under sections 4 and 5, on preparing text books itself or selecting from the private sector.
This will be done on or before March 31, 1979.
If the decision taken is either way, the books shall be well stocked by the end of May.
We allow the appeal in part and dismiss in part and as a corollary, ing dates and months but governmental processes are often 'paper logged '. 'The fear that the State Government may not be sufficiently conscious of the due priority to be given to the tasks now set before it has persuaded us to issue these time bound directions.
We allow the appeal in part and dismiss in part and as a corollary, order the parties to bear their costs throughout.
N.V.K. Appeal allowed in part.

summary:
The M. P. Prathmik Middle School Tatha Madhyamik` Shiksha (Pathya Pusthakon Sambandhi Vyavastha) Adhiniyam 1973 empowered the State Government to prescribe text books according to syllabus laid down and to undertake the preparation, printing and distribution of text books.
Section 2(d) of the Act defines "syllabi" as a document containing courses of instructions for each standard of primary, middle school and secondary education.
Section 3 empowers the State Government, in the case of primary and middle school education, and the Board in the dace of secondary education, to lay down the syllabi and publish the same.
Section 4 lakes the State Government the competent authority to prescribe the text books in accordance with the syllabus laid down under section 3.
Section 5 empowers the State Government to undertake the preparation, printing and distribution of text books itself or cause them to be done through such agency as it deems fit and on such terms and conditions as may be prescribed.
The appellant (State Government) exercised its power under section 5 of the Act and produced the necessary text book for "Rapid Reading" an item in the syllabus for secondary schools and distributed it among the students in many schools.
Until then, the books of the respondent, 2 private publisher were in use.
The respondent challenged the action of the State Government in the High Court on the ground that the State Government had not given consideration to the availability of text books in terms of the "syllabi" with private publishers as required by section 5 of the Act, before it produced and distributed the text books compiled by itself among the students of the secondary schools.
The High Court upheld the challenge and held that the statutory exercise envisaged under the Act had not been carried out before preparing and distributing the Government text books.
In the State Government 's appeal to this Court it was contended that (I) as section 2(d) envisages syllabus as a document containing courses of instruction, a broad outline, a demarcation if the topic would be sufficient compliance and that there need not be particularisation of details, and (2) 'publication ' of the syllabus, essential under section 3 means communication by the Board to the Government or the concerned authorities.
On behalf of the respondent it was submitted that the mere mention of topics in bare outline, as in the instant case did not constitute 'syllabi ' as defined in section 2(d) and that to fulfil, 4 196SCI/79 42 the statutory requisites a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law.
Allowing the appeal in part, ^ HELD: 1.
The syllabus for 'Rapid Reading ', suffers invalidation under section 3 because it has not been published.
The publication must precede the Prescription of text books under section 4 or their preparation under section 5.
[56C] In the instant case the syllabus was published only on June 30, 1978 while the text books were prescribed in October, 1977.
So sections 3 and 4 have been breached and a fresh decision by Government prescribing text books for 'Rapid Reading ' must be taken.
[56D] 2.
The State Government shall take a fresh decision under sections 4 and 5 read Together.
If publishers of text books or pro bono publico representationists communicate relevant matters bearing on the selection of text books, their merits will be examined departmentally.
If, thereafter, Government considers it proper to take over the text books business under section 5 it is free to do so.
The private sector has no 'right ' and Government 's jurisdiction is wide, although the State need not be allergic to private publishers if books of excellence, inexpensive and well designed, are readily available.
[56G H] 3.
The laying down of the syllabus is a condition precedent to the prescription of text books, because the courses of instruction follow upon and should be in conformity with the syllabus and text books are in implementation of the courses of instruction.
[50B] 4.
To fulfil the statutory requisites, a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law.
[51D] 5.
No private publisher has a right under section 4 that his text book shall be prescribed or necessarily considered by Government.
No such right as is claimed by the respondent publisher has, therefore, been violated by the State Government.
[54C] 6.
The syllabus for 'Rapid Reading ' is not bad as falling short of definitional needs, although it is desirable for the Board to be more expressive i when laying it down.
Wilful vagueness in syllabi will invite an adverse verdict.
[56A] 7.
A syllabus may helpfully give general features but may not cease to be so solely because only an outline is silhouetted. 'Courses of Instruction ' in section 2(d) simply means the rubric for teaching, not more.
It must be a syllabus of courses and so the courses must be spelt with relevancy, even though with brevity.
[51G, 52A] 8.
Functionally the syllabus must tell the publisher and pundits in the concerned field sufficient to enable them to help Government under section 4 to choose text books.
If this minimum is not complied with the court will use the lancet and issue an appropriate writ.
[52C D] 9.
The expression "syllabi" must be so interpreted as to fulfil the purpose of sections 3 and 4 which means there must be sufficient information for those concerned to know generally what courses of instruction are broadly covered 43 under the heading mentioned, so that they may offer text books for such A courses.
If there is total failure here the elements of syllabi may well be held to be non existent, even though experts might claim otherwise.
The law is what the Judges interpret the statute to be, not what the experts in their monopoly of wisdom assert it to be.
[52E F] 10. 'Publication ' means more than mere communication to concerned officials or departments.
The purpose of section 3 animates the meaning of the expression 'publish '. 'Publication is "the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. an advising of the public; a making known of something to them for a purpose." [52H, 53A B] 11.
The legislative objective is to ensure that when the Board lays down the 'syllabi ' it must publish 'the same ' so that when the stage of prescribing text books according to such syllabi arrives, both the publishers and the Stab Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text books from the private market or compiled under section S by the State Government.
[53C] 12.
"Publication" to the educational world is the connotation of the expression.
Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom.[53D] Only when they come to know about the syllabi prescribed representatives in the educational field or in the public sector may be able to tell the State Government what type of text books are available, what kind of books will make for excellence in teaching and what manner of material will promote the interests of the students in the subjects of study [53H 54A] 13.
Government has plenary power under section 5 to produce its own text books in tune with the syllabi prescribed under section 3.
No private publisher can quarrel with it on the ground that his profit is affected or that the State sector acquires a monopoly in text book production.
The legislature has empowered the State to do so and there is no vice of unconstitutionality whatever.
The caveat built into section S by the legislature is that it authorises Government to enter the text book field as a monopolist "if it considers so to do." [54E F] 14.
Nationalisation of the activity of preparation, printing or distribution of text books is a serious step and resort to that measure calls for a policy judgment.
[54G] 15.
The Court should not sit in judgment over Government decisions in these matters save in exceptional cases.
The law is complied with if Government has, before undertaking action under section 5, bestowed consideration on matters of relevance which may vary from time to time and from subject to subject.
Government may like to avoid expenditure from the public exchequer if books, inexpensive and qualitatively acceptable, are easily available.
The decision is that of the Government and it has a wide discretion.
Publishers have no right to complain, and if the mind of the Government has been relevantly applied to the subject, courts must keep their hands off.
[55B C] Naraindas Indutkhya vs State of M.P. & Ors., ; ; Black 's Legal Dictionary, p. 1386, referred to. 44