judgement:
Criminal Appeal No. 250 of 1964.
Appeal from the judgment, and order dated March 14, 1963 of the Gujarat High Court in Criminal Revision Application No. 124 of 1961.
R. Ganapathy Iyer and S.P. Nayar, for the appellant.
M.V. Goswami and C.C. Patel, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
In this appeal by certificate under article 134( 1 ) (c) of the Constitution the State of Gujarat appeals against 178 the judgment, March 14, 1963, of the High Court of the State acquitting the respondents of diverse offences under the Forward Contracts (Regulation) Act, 1952.
Originally 31 persons were charged before the Judicial Magistrate, Ahmedabad, who acquitted 14 and convicted the rest.
The present respondents, who are 11 in number (accused 1 to 9, 11 and 12), were convicted under section 20(1)(c) of the Act and fined Rs. 51/ (15 days ' S.1.
in default).
They were also convicted under section 21(b) of the Act but no separate sentence was imposed.
Nine of them (accused 1 to 9) were further convicted under section 21(c) of the Act and fined Rs. 25/ (one week 's S.1.
in default).
The remaining accused were convicted under section 21 (b).
All appealed to the Court of Sessions Judge.
The conviction of accused 1 to 9, 11 and 12 was maintained but conviction under section 20(1)(b) was substituted for that under section 20(1)(c).
The other accused ' were convicted of all the charges.
The High Court was then moved in revision.
All the accused were acquitted of all the charges.
The State Government now appeals.
All respondents are members of the Ghee and Tel Brokers Association Ltd., Ahmedabad.
Nine of them are Directors and two of these are President and Secretary of the Association.
The accused, who are not before us, were brokers and servants of the Association or of the brokers.
The prosecution case is this: The Association has an office where the members and brokers used to enter into contracts for the sale and purchase of groundnut oil.
These contracts were largely speculative.
A large number of contracts used to be entered into but were not performed by actual delivery and payment of price.
They were adjusted on a due date after the expiry of a fixed period.
This period was generally from the 5th of one calendar month to the 25th of the following month and the latter was the due date.
On each Saturday during the period the Association exhibited the prevailing rate and according to that rate cross transactions entered earlier were adjusted and the persons in loss deposited money representing their particular losses with the Association.
On the due date all outstanding.transactions were finally adjusted by cancelling sales against purchases and delivery used to be ordered in respect of the balance which had to be completed by the end of the month of the due date.
During the stated period extensive trading through sales and purchases took place without any delivery.
Each member could enter into as many transactions of either kind as he liked provided that each transaction was in multiple of 50 Bengali Maunds.
Between March 5 and April 25, 1957 the total transactions put through totalled 4,33,600 Bengali Maunds but the actual delivery on the due date was about 5,500 Bengali Maunds only, that is to say, just over 11/4 per cent.
The share of the several operators in these deliveries was insignificant and the deals were really forward 180 any such member, becomes illegal, and the contract itself becomes void, except in the case of a person who has no knowledge that the transaction is prohibited.
We are not concerned with sections 16 and 17 and may omit them from consideration.
Then comes section 18, sub section (1) whereof provides: "18.
Special provisions respecting certain kinds of forward contracts. (1) Nothing contained in Chapter III or Chapter IV shall apply to non transferable specific delivery contracts for the sale or purchase of any goods: Provided that no person shall organise or assist in organising or be a member of any association in any area to which the provisions of section 15 have been made applicable (other than a recognised association) which provides facilities.
for the performance of any non transferable specific delivery contracts by any party thereto without having to make or to receive actual delivery to or from the other party to the contract or to or from any other party named in the contract.
" This sub section read with sections 20 and 21 is at the foundation of :the charge and as section 19 is irrelevant here, we may proceed to read them at once.
We are concerned only with cls.
(b) and (c) of sub section
(1) of section 20 and (b) and (c) of section 21 and will, therefore.
omit the other clauses: "20.
Penalty for contravention of certain provisions of Chapter IV. (1) Any person who (a) (b) organises, or assists in organising, or is a member of, any association in contravention of the provisions contained in the proviso to sub section (1) of section 18; or (c) enters into any forward contract or any option in goods in contravention of any of the provisions contained in sub section (1) of section 15, section 17 or section 19, shall, on conviction, be punishable with imprisonment for a term which may extend to one 'year, or with fine, or with both.
179 transactions in which there was no intention to take or give delivery.
The prosecution, therefore, submitted that these were forward contracts prohibited under the Act and as the Association was not recognised the offences charged were committed.
The High Court having acquitted all the accused the State ' contends now that the acquittal recorded by.
the High Court is wrong and proceeds on a misapprehension of the provisions of the Act and of the facts on which the charges rested.
To consider the submissions of the parties the relevant provisions of 'the Act, which has been passed, among other things, to regulate forward contracts, will have to be seen.
Before we do so we may first glance at some definitions leaving out those attributes of the terms defined in which we are not interested.
"Forward contract" under the Act means a contract which is not a ready delivery contract but a contract for future delivery (section 2(c) ).
A "ready delivery contract" is one in which there is delivery and payment of price either immediately or within a period which is not to exceed 11 days even by consent of parties or otherwise (section 2(1) ).
The expressions "transferable specific delivery contract" and "non transferable specific delivery contract" are defined ' with reference to the latter expression which means a specific delivery contract, the rights or liabilities under which are not transferable (section 2 (f)) and "specific delivery contract ' means a forward delivery contract which provides for actual delivery of specific qualities or types of goods either immediately or during a period not exceeding 11 days at a price fixed thereby or to be fixed in the manner thereby agreed and in which the names of both the buyers 'and sellers are mentioned (section 2(m) ).
The effect of these definitions is clearly to distinguish, firstly, forward contracts from ready delivery contracts by limiting the time in which ready delivery contracts must be completed by delivery and payment of price; secondly, to distinguish between transferable and non transferable specific delivery contracts; and finally to distinguish forward contracts in which there is either no provision for actual delivery or the parties are not named, from a specific delivery contract.
The Act then proceeds to lay down in Chapter III the conditions of recognition of Associations.
Since this Association was admittedly not recognised it is unnecessary to review the provisions of that Chapter.
Chapter IV then makes certain provisions regarding forward contracts and option in goods.
Chapter V then provides for penalties.
The relevant provisions of these two Chapters need to be carefully considered.
Section 15(1) declares illegal forward contracts in notified goods and on the notification so issuing every forward contract in notified goods otherwise than between members of a recognised association or through or with 181 "21.
Penalty for owning or keeping place used for entering into forward contracts in goods.
Any person who (b) without the permission of the Central Government, organises, or assists in organising, or becomes a member of, any association, other than a recognised association, for the purpose of assisting in, entering into or making or performing, whether wholly or in part, any forward contracts in contravention of any of the provisions of this Act, or (c) manages, controls or assists in keeping any place other than that of a recognised association, which is used for the purpose of entering into or making or performing, whether wholly or in part, any forward contracts in contravention of any of the provisions of this Act or at which such forward contracts are recorded or adjusted, or rights or liabilities arising out of such forward ' contracts are adjusted, regulated or enforced in any manner whatsoever, or shall, on contravention, be punishable with imprisonment which may extend to two years, with fine, or with both.
" The respondents were charged under sections 20 (1) (b).
, 20 (1) (c) and 21(a), (b), (c) and (f).
As the State does not press its case under section 21 (a) and (f) they have been left out.
Before we analyse the penalty sections it is necessary to see whether the case fails within section 18 (1) of the Act.
It is established in the case that the Association was unregistered.
It is also clear that the contracts, although they appeared to be non transferable specific delivery contracts were not intended to be completed by delivery immediately or within a period of 11 days from the date of the. contract.
In fact week after week contracts were cancelled by cross transactions and there was no delivery.
Instead of payment of price losses resulting from the cross transactions were deposited by the operators in loss with the Association.
Further, on the due date also, there was no delivery but adjustment of all contracts of sales against all contracts of purchase between the same parties and delivery was of the outstanding balance.
Even this delivery was often avoided by entering into fresh contract at the 182 rate prevailing on the due date, as part of the transactions in the next period.
There is evidence also to establish this.
In other words, the transactions on paper did seem to comply with the regulations but in point of fact they did not and the Association arranged for settlement of the entire transactions (barring an insignificant portion if at all) without delivery.
Turning now to the provisions of sub section
(1) of the 18th section it is clear that the provisions of Chapters III and IV would not have applied to the respondents if their transactions were true non transferable specific delivery contracts.
They would have been so if the nature of the transaction, not on paper, but in actuality was such as the Act contemplates.
This is why the proviso to section 18 has been added to prohibit certain things.
The proviso enacts that no person shall organise or assist in organising or be a member of an association (except a recognised association) which provides facilities for the performance of any specific delivery contract without having to make or to receive actual delivery.
The Legislature contemplates that the first sub section of section 18 might be complied with in the documents evidencing the contract but in actuality the contract might be differently performed and has, therefore, provided for 'the. identical situation which, arises in this case.
Now the difference between the Magistrate and the Sessions Judge arose on the application of the first sub section of section 18 with its proviso.
The Magistrate felt that the transactions were not non transferable specific delivery contracts and the matter fell within the proviso.
Having found this, it is not a little surprising that he did not apply section 20(1)(b), which was clearly attracted.
His reasoning on this point is difficult to appreciate.
He seems to think that as the first sub section of the eighteenth section dealt with non transferable specific delivery contracts, it had no application here.
Therefore, the charge of being members of an association in contravention of the proviso thereto did not survive and hence no offence under section 20(1)(b) was disclosed.
In this the Magistrate was clearly in error.
Section 18( 1 ) speaks of true non transferable specific delivery contracts but the proviso at the same time makes it illegal for an unrecognised association to so arrange matters that non transferable specific delivery contracts will be worked out without actual delivery.
The Magistrate should have seen that the conduct of the members of this unrecognised association was precisely this and was, therefore, prohibited by the proviso and directly punishable under section 20(1 )(b).
An offence under that clause of section 20(1) and also under el.
(c) of that section read with section 15 was made out.
There was no question of considering the matter first under the main part of the first subsection and 'then to put the proviso out of the way because the first sub section did not apply.
The Magistrate, however, con 183 victed the members under section 21 (b) for organising an unrecognised association for the purpose of assisting in or entering into or making or performing, whether wholly or in part, any forward contracts in contravention of the provisions of the Act and further under section 21 (c) for managing, controlling or assisting in keeping a place other than that of a recognised association where forward contracts in contravention of the Act or at which forward contracts are recorded or adjusted or rights or liabilities arising out of such forward contracts are adjusted, regulated or enforced in any manner whatsoever.
When the respondents.
appealed to the Sessions Judge, the conviction under section 21 (b) and (c) was confirmed and the other conviction was altered from section 20(1)(c) to section 20(1)(b).
The Sessions Judge rightly pointed out that the so called non transferable specific delivery contracts were so arranged that they could be resolved after the period of eleven days and without actual delivery.
The Sessions Judge was of the opinion that the respondents had acted in breach of the proviso to section 18 (1 ) and were clearly guilty of the offence.
In a precise and clear judgment the Additional Sessions Judge explained the pertinent sections and rightly held the proviso to section 18(1) and section 20(1)(b) applicable.
The High Court then in revision held that it was not open to the Sessions Judge to alter the conviction from section 20(1)(c) to section 20( 1 )(b) as the acquittal under the latter section by the Magistrate was not appealed against and in an appeal from a conviction there could be no change of finding to convert art acquittal into conviction.
The High Court also held that no offence under section 21 (b) or (c) was made out.
In a fairly long judgment the High Court pointed out that the decision of this Court in The State of Andhra Pradesh vs Thadi Narayana(1) prohibited the alteration of the finding.
The High Court then went further to hold that there could not be a conviction under section 20( 1 ) (c) as the Sessions Judge had acquitted the appellants and there was again no appeal against that acquittal.
The High Court also set aside the conviction under section 21 (b) and (c).
The High Court reached its conclusion on the 'basis of the finding of the Sessions Judge that the contracts entered into were non transferable specific delivery contracts and the appellants were, therefore, not guilty of the offence under section 20(1)(c) of the Act.
The High Court then proceeded to reason that as no part of the Act prohibited performance of non transferable specific delivery contracts otherwise than by making or receiving actual delivery, the acts of the appellants were not offences under the Act.
The learned Judge while dealing with section 18 ( 1 ) proviso observed: (1) 184 "The performance of a non transferable specific delivery contract by a mode other than giving and taking of actual delivery would be contrary to law only if there is some provision of law which prohibits it.
But unfortunately for the prosecution, the Legislature has not chosen to enact any such provision.
The only nearest approximation I could find was the proviso to sub section(1) of section 18 but that proviso does not prescribe that a non transferable specific delivery contract shall be performed by making and receiving actual delivery and that the parties to such a contract shall not perform it otherwise than 'by making and receiving actual delivery.
All that it enacts is that no person shall organise or assist in organising or be a member of any association in any area to which the provisions of section 15 have been made applicable (other than a recognised association) which provides facilities for the performance of any non transferable specific delivery contract by any party thereto without having to make or receive actual delivery to or from the other party to the contract or to or from any other party named in the contract.
What this proviso seeks to achieve is to secure that no Association other than a recognized Association shall provide facilities for performance of a non transferable specific delivery contract by the parties thereto without having to make or receive actual delivery.
But it is a long step in the argument to conclude from the proviso that performance of a non transferable specific delivery contract otherwise than by making and receiving actual delivery is prohibited.
The language of the proviso cannot bear any such extended artificial construction. . " The learned Judge was clearly in error and misunderstood the connection between the first sub section and its proviso.
Distinction is made in the proviso between recognised and unrecognised associations.
Persons can organise and assist in organising or be member of an association which is recognised even if the association provides for performance of non transferable specific delivery contracts without actual delivery.
The prohibition is against persons arranging for avoidance of delivery through an unrecognised association and read with the penalty sections, it is clear that such.
acts are rendered illegal.
If the acts are illegal then non transferable specific delivery contracts by members of unrecognised associations become illegal also.
They are forward contracts and being entered into otherwise than between members of a recognised association or through or with any such member are rendered illegal by section 15. 185 Thus there is no doubt whatever in the case that offences under section 21(b) and (c) were committed.
It is enough to read these clauses to see that they fit the acts of nine respondents (accused 1 9) and their position vis a vis the unrecognised association of which they were directors makes them liable to penalty under section 21 ( 'b) and (c) but the remaining two respondents (accused 11 and 12) being only members are liable to penalty under section 21 (b) only.
As regards the other offences under section 20(1)(b) and (c) we are clear that these offences were also committed.
But as the Sessions Judge acquitted them under cl.
(c) and there was no appeal to the High Court we say nothing about it.
As regards the offence under section 20(1)(b) the Magistrate did not clearly record a finding of acquittal.
However, his reasoning seems to be in favour of holding that the clause did not cover the case as the contracts were not non transferable specific delivery contracts.
His finding was the reverse of the finding of the Sessions Judge.
The question thus remains whether the Sessions Judge could alter the finding in an appeal from a conviction (and the High Court too if it so chose) when it was a question of choosing between two clauses of a penalty section depending on whether the true nature of the contracts was as held by the Magistrate.
The ruling of this Court cited earlier was invoked to suggest that such a course was not possible for the Sessions Judge or the High Court.
We do not pause to consider whether the ruling prohibits such a course and if it does whether it does not seek to go beyond the words and intendment of section 423(1)(b) of the Code of Criminal Procedure.
This is hardly a case in which to consider such an important point.
We, therefore, express no opinion upon it.
It is sufficient to express our dissent from the High Court on the interpretation of the Act and hold the respondents guilty of infractions where the ruling does not stand in the way.
We accordingly set aside the acquittal of the respondent under cls.
(b) and (c) of section 21 and restore their conviction under those clauses as confirmed by the Sessions Judge.
We sentence all the respondents to a fine of Rs. 25 (or one week 's simple imprisonment in default) under section 21(b).
No separate sentence under section 21 (c) is imposed on the respondents who were original accused Nos.
The appeal shall be allowed to the extent indicated.
in this paragraph.
Y.P. Appeal allowed in part.

summary:
The members of a Ghee and Tel Brokers Association, used to enter into contracts for the sale and purchase of groundnut oil.
Week after week contracts were cancelled by cross transactions and there was no delivery.
Instead of payment of price losses resulting from the cross transactions were deposited by the operators in loss with the Association.
On the due date also there was no delivery but adjustment of all contracts of sales against all contracts of purchase between the same parties and delivery was of the outstanding balance.
Even this delivery was often avoided by entering into fresh contract at the rate prevailing on the due date, as part of the. transactions in the next period.
The Sessions Judge convicted the respondents the Association 's President, Secretary and Directors.
holding that these were forward contracts prohibited under the Forward Contracts (Regulation) Act and the Association was not recognised.
The High Court set aside the convictions.
In appeal, this Court: HELD: Section 18(1) of the Act speaks of true non transferable 'specific delivery contracts but the proviso at the same time makes it illegal for an unrecognised association to so arrange matters that non transferable specific delivery contracts will be worked out without actual delivery.
Such conduct is prohibited by the proviso and directly punishable under section 20(1)(b).
An offence under that clause of section 20(1) and also under el.
(c3 of that section read with section 15 was made out.
There was no question of considering the matter first under the main part of the first sub section and then to put the proviso out of the way because the first sub section did not apply.
The Legislature contemplates that the first sub section of section 18 might be complied with in the documents evidencing the contract but in actuality the contract might be differently performed and has.
therefore, provided for the identical situation which arose in this case.
[182F H, D]


judgement:
iminal Appeal No. 19 of 1965.
Appeal by special leave from the judgment and order dated E January 11, 1965 of the Calcutta High Court in Criminal Revision No. 46 of 1965.
A.K. Sen and S.C. Majumdar, for the appellants.
P.K. Chakravarti, G.S. Chatterjee for P.K. Bose, for respondent No. 1.
K.B. Mehta and Indu Soni, for respondent No. 2.
The Judgment of the Court was delivered by Hidayatullah, J.
This is an appeal on behalf of ten appellants who were charged for deserting their ship "S.S. Nilgiri" on or G about April 22, 1964.
They were convicted under sections 191(1)(a) and (b) and 194(b) and (e) read with section 436 of the .
Each of them was sentenced to suffer rigorous imprisonment for one month under section 191(1)(a) read with section 436 of the Act and also to forfeiture of 1/25 of the wages due.
Under section 194(e) they were fined Rs. 20/ each but no separate sentences were passed against them under section 191(1)(b) H and section 194(b) of the Act.
Their application for revision in the High Court of Calcutta was summarily rejected.
They now appeal by special leave granted by this Court.
308 The facts of the case are that the appellants had entered into a half yearly agreement with the Eastern Steamship Ltd. to navigate "S.S. Nilgiri" (Captain Hunter) between December 11, 1963 and June 10, 1964.
The terms of their agreement are exhibited as exhibit 1 in the case.
It appears that they had performed some voyages on board "S.S. Nilgiri" and on the day on which they are alleged to have deserted the ship, it had berthed in the Calcutta Port.
According to the custom obtaining in merchant shipping the ratings were allowed some bazar money (victualling charges).
The appellants claim that they should have, been paid Re. 1/ per day (the Company was paying only 62 paise per day).
When the ship was in dock, the appellants put in this demand on 21/22 4 1964, and the matter was referred to.
the Shipping Master Calcutta .
Meetings between the representatives of the Shipping Company and the seamen took place before the Shipping Master.
Minutes are available in the case.
Although oral testimony on behalf of the Company seems to give a lie to some parts of the minutes, it is obvious that some sort of an agreement took place under which the Company promised to pay these men the amount though it is.
not clear whether the amount was to be paid before the commencement of the next voyage or on the termination of the agreement.
Oral testimony on behalf of the company inclines to the latter.
But there is also the evidence that the Company had undertaken to pay the seamen the additional amount of 38 paise per person per day before the voyage was resumed.
Be that as it may, it appears that labour leaders at this stage began to take a hand in the dispute and prompted the appellants to leave the vessel in a body.
As a result the ship could not leave the port because ' the ratings had abandoned it and were not available at the appointed time of sailing.
The Presidency Magistrate before whom the appellants were tried for the offences already mentioned, held that their conduct amounted to.
desertion and that as they had no reasonable excuse for leaving their ship, they were guilty of the offences charged.
He accordingly sentenced them as already stated.
The High Court summarily rejected their revision.
In this appeal it is contended (a) that there was no desertion on the part of the appellants, and (b ) even if they be held to have left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of the ship.
The matter is governed by the Merchant Shipping Act, 1958.It does not define what is meant by desertion; but in Moore vs Canadian Pacific Steamship Co.(1) Mr. Justice Lynskey gave a (1) 309 definition of 'desertion ' from an early case (The West morland) as follows : "I think a deserter is a man who leaves his ship and does not return to.
it with no other purpose than to break his agreement.
" The gist of desertion therefore is the existence of an animus not to return to the ship or, in other words, to go against the agreements under which the employment of seamen for sea voyages generally takes place.
In our opinion, this definition may be taken as a workable proposition for application to the present case; There is nothing in this case to show that after the seamen left the vessel, they intended to return to it.
In fact they went and later took their baggage, because under the law penalty includes forfeiture of the effects left on board.
The whole tenor of their conduct, particularly the intervention of labour leaders is indicative of the fact that they left the ship with no intention to return to it unless their demands were met forthwith even though before the, Master the Company had stated that the matter would be finally considered at the end of the voyage and the termination of the agreement.
There are provisions in the Act under which the seamen have got rights to enforce payment against their employers by taking recourse to a Magistrate who in summary proceedings may decide what amount is due to them and order its payment.
It is true that this action could only be taken at Cochin where the registered office of the Company is situate, but in any event the crew were required under the agreement to take back the vessel to Cochin and could well have waited till they returned to the home port and then made the demand before the appropriate authority.
The way they have acted clearly shows that they were using the weapon of strike with a view to force the issue with their employers and were not intending to return to the vessel unless their demands were acceded to immediately.
In these circumstances, it is legitimate to infer that they were breaking the agreement with the company which was to keep the ship in voyage up to June 10, 1964 which could not take place if all the crew remained on shore and the vessel could not weigh anchor and leave the port without ratings.
We are, therefore, satisfied that this was a case of desertion and that it fell within the definition of the term as stated by us Section 191 ( 1 ) is in two parts.
The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the Act was duly incurred.
There is no excuse against desertion because reasonable cause which is indicated in the same section is included in el.
(b) and not in el.
(1) ; 310 But even if one were to view their conduct as failing under (b) and not (a) as the courts have held, we see no excuse on their part.
The operation of shipping requires constant attention from its crew and it is not possible for a shipping company or a vessel to ply the ship if the crew at every port make demands and leave the ship in a body.
Such conduct would be subversive of all discipline on board.
It is not so long ago that seamen were put in stocks and chains and the leaders were made to walk the plank or hung from the yard arm Or at the least were flogged.
The law has made the life of seamen a little more liberal but has chosen to regard their duties as of paramount importance and has therefore, in addition to the ordinary liabilities which arise under the general law, added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board.
This indicates that the policy of the law is that the crew must perform their duties under such agreements as they execute with the shipping company on pain of being found guilty and punished if they cannot make out that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty.
In our opinion in the present case there was not that sufficient cause even for purpose of el.
(b) of section 191 (1).
After all the dispute was before the Shipping Master, meetings had taken place and minutes had been recorded.
The log book of the Shipping Company would show the different voyages and their duration and the muster roll would show the attendance of the crew.
It was a matter of mere arithmetical calculation between Re. 1/ per day and 62 paise per day to find out how much money was due to each of the ratings.
This would not amount to more than Rs. 30/ or Rs. 40/ per person and this claim might well have waited till the completion of the voyage, because the record of the entire proceedings was kept in the Shipping Master 's office and there was machinery in law for the enforcement of a demand.
In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a body in a manner which can only be described as desertion and therefore their offence was fully established.
We see no reason therefore to interfere in this appeal which fails and will be dismissed.
R.K.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
The ten appellants were ratings who had entered into an agreement with a shipping company in Cochin to navigate one of its ships between December 11, 1963 and June 10, 1964.
During this period, after they had performed some voyages and while the ship was berthed in Calcutta port, a dispute arose between the appellants and the Company as to the payment of bazar money (victualling charges) which the ratings were allowed according to a custom obtaining in merchant shipping.
The appellants claimed Re. 1 per day while the Company normally paid only 0.62 P. per day.
The dispute was referred to the Shipping Master, Calcutta, whereupon meetings took place between representatives of the Company and the appellants before the Shipping Master and an agreement was reached according to which the Company promised to pay the amount claimed.
However, it was not clear whether this payment was to be made before the commencement of the next voyage or on the termination of the agreement.
As the appellants were in fact not paid before commencement of the voyage, upon the instigation of certain labour leaders they left the vessel in a body and, as a result, the ship could not leave port at the appointed time of sailing.
The appellants were thereafter prosecuted for deserting the ship and were convicted under section 191 and (b) and section 194(b) and (e) read with section 436 of the .
Their revision applications to the High Court were summarily rejected.
In the appeal to this Court by special leave, it was contended on behalf of the appellants (a) that there was no desertion on their part, and (b) that even if they be held to have left the ship, they were protected by the fact that there was reasonable cause for absenting themselves at the time.
of the sailing of the ship.
HELD: dismissing the appeal: (i) The gist of desertion is the existence of animus not to return to the ship or, in other words, to, go against the agreements under which the employment of seamen for sea voyages generally take place.
The way the appellants had acted clearly showed that they were using the weapon of strike with a view to force the issue ,with their employers and were not intending to, return to the vessel unless their demands were acceded to immediately.
It was therefore legitimate to infer that they were breaking the agreement with the company which was to keep the ship in voyage up to June 10, 1964 .
and this was rendered impossible by all the appellants absenting themselves.
Their action therefore amounted to desertion.
[309 B, F G] 307 Moore vs Canadian Pacific Steamship Co., ; The West morland; , ; referred to.
(ii), Section 191(1) is in two parts.
The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the Act was duly incurred.
There is no excuse against desertion became reasonable cause which is indicated in the same section is included in cl.
(b) and not in el.
In the present case there was not that sufficient cause even for the purpose of el.
(b) of section 191(1).
The dispute was already before the Shipping Master, meetings had taken place and minutes had been recorded.
the log book of the shipping Company and other records would clearly show the mount of money due to the appellants.
The settlement of the claim could well have waited till the completion of the voyage and there was machinery in law for the enforcement of a demand.
[309 H; 310 D F] The law has chosen to regard the duties of seamen as of paramount importance and has therefore, in addition to the ordinary liabilities which arise under the general law, added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board.
This indicates that the policy of the law is that the crew must perform their duties under such agreements as they execute with the shipping company on pain of being found guilty and punished if they cannot make out that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty.
[310 C D]


judgement:
Appeals Nos. 883, 915 to 967 and 1042 to 1044 of 1967.
Appeals from the judgment and order dated December 2, 5, 12 and 13, 1966 of the Gujarat High Court in Special Civil Applications Nos 1003, 1177, 1178, 1183, 1186, 1195, 1197 to 1202, 1205 to 1210, 1220 to 1222, 1244, 1275, 1374, 1377, 1380, 1387, 1389 of 1965, 68 to 70, 72 to 74, 76, 77, 80, 83, 84, 166, 183, 393, 399, 547, 554, 790 of 1966, 1187, 1188, 1233 of 1965, 75, 154, 202, 402, 403 of 1966, and 1179, 1184 and 1185 of 1965.
B. Sen, S.K. Dholakia and Vineet Kumar, for the appellant (in C.A. No. 883/1967).
S, K. Dholakia and Vineet Kumar, for the appellants (in C. As.
Nos. 915 to 967 and 1042 to 1044 of 1967).
S.V. Gupte, A.K. Kazi, O.P. Malhotra and S.P. Nayar, for the respondents (in C. As.
Nos. 883 and 915 to 967 of 1967).
A.K. Kazi, O.P. Malhotra and S.P. Nayar, for the respondents (in C. As.
1042 to 1044 of 1967).
The Judgment of the Court was delivered by Hidayatullah, J.
On March 10, 1965, the Government of Gujarat notified under section 4 of the Land Acquisition Act that certain lands were needed for a public purpose, namely, the construction of the capital of the State at Gandhinagar and that Government was satisfied that they were 'arable lands '.
Government further directed under section 17(4) of the Act that as the acquisition of the said lands was urgently necessary the provisions of section 5A of the Act shall not apply in respect of the lands.
A list of the lands was appended to the notification.
This notification was followed by another on JuLy 31, 1965 under section 6 of the ' Land Acquisition Act and it contained a direction under section 17 (1) of the Act, enabling the Collector, on the expiration of 15 days from the publication of the notice under section 9 (1) of the Act, to take possession of all arable lands specified in the earlier notification.
Both notifications were signed by L.P. Raval, Under Secretary to Government and were shown to be by order and in the name of the Governor of Gujarat.
Numerous petitions were filed in the High Court of Gujarat under article 226 of the Constitution by the owners of the lands Sup, C. I,/68 3 270 affected by the notifications to challenge the validity of the acquisition.
One such petition was numbered Petition No. 1003 of 1965 and it was typical of all the others.
The facts in all the petitions were the same, save the details of the lands, and as the contentions were also the same, the High Court pronounced a common judgment applicable to all, on December 2/5, 1966 and dismissed them.
The High Court, however, granted a certificate under article 133(1)(c) of the Constitution and the present appeals have been brought.
Civil Appeal No. 883 of 1967 arises from the Special Civil Application No. 1003/65 and the other appeals are in the other petitions.
This judgment will accordingly dispose of all the appeals.
Before we consider the arguments we may see the relevant provisions of the Land Acquisition Act.
The scheme of the Act, which entered into force almost seventy five years ago, is by now familiar to lawyers and courts and it is not necessary to refer in detail to it.
The High Court has painstakingly analysed the provisions already.
We shall refer in passing to what is material to the discussion, Acquisition of land under the Act originarily begins with a preliminary inquiry.
Government notifies first under section 4 that 'land in any locality is needed or is likely to be needed ' for a public purpose.
Public notices are also given.
This enables the officers of Government to enter upon lands to survey them and also enables persons interested to object to the acquisition generally and also particularly in accordance with the provisions of section 5A of the Act.
After the objections have been considered and Government has satisfied itself on the report or reports of the Collector that a particular land is needed, a second notification is issued under section 6 that a particular land is needed for the public purpose.
This declaration is conclusive evidence that the land is so needed and Government then proceeds to acquire the land.
The procedure is detailed in the sections that follow.
Under section 9 (1 ) the Collector causes public notices to be given that Government intends to take possession of the lands and that claim to compensation for all interests in lands shall be made to him.
Then commence proceedings for the fixation of compensation with the details of which procedure we are not presently concerned.
When these proceedings are completed the Collector makes his award about the true area, the compensation to be allowed and the apportionment of that compensation among persons known or believed to be interested.
When the Collector has made his award (which is made conclusive for certain purposes) section 16 enables him to take possession of the lands and the lands vest absolutely in Government free from all encumbrances.
The is provided in section 17.
Under this procedure Government in cases award.
There is a shorter procedure for cases of urgency and it is provided in section 17.
Under this procedure Government in cases 271 of urgency, is enabled inter alia to omit the application of section 5A and to notify the lands under section 6 at any time after the publication of the notification under section 4(1).
Under sub section
(1) of section 17, Government can direct the Collector, though no award has been made, to take possession of any waste or arable lands needed for the public purpose, on the expiration of fifteen days from the publication of the notice under section 9.
Under Sub s.(4) of the same section Government may direct that in the case of any land to which in its opinion the proviSiOns of the first sub section are applicable, the provisions of section 5A shall not apply and if it so directs a declaration may be made under section 6 in respect of that land at any time after the notification under section 4 (1) has been published.
It will therefore, be noticed that the shorter procedure has been followed here.
Before we refer to the grounds on which the action of Government is challenged we may read sections 4(1) 6(1) omitting the proviso, and s.17.
Although we are principally concerned with the first and fourth sub section of the last section we shall be required to refer to the remaining sub sections, and we shall read the section as a whole: "4(1) Whenever it appears to appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
6(1) Subject to the provisions of Part V/I of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A, sub section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub section ' ( 1 ), irrespective of whether one report or different reports has or have been made (whenever required) under section 5A, sub section (2).
17(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1), 272 take possession of any waste Or arable land needed for public purposes or for a Company.
Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side or that station, or of providing convenient connection with or access to any such station, the Collector may, immediately after the publication of the notice mentioned in sub section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub section without giving to the occupier thereof at least forty eight hours ' notice of his intention so to do or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding sub sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case s uch offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub section (1) or sub section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at 273 any time after the publication of the notification under section 4, sub section (1) In the High Court sub sections
(1 ) and (4) of section 17 of the Act were assailed under articles 14 and 19(1)(f) of the Constitution.
This argument was placed at the forefront.
In this Court this submission was relegated to the end.
Apparently not much faith was reposed in its potency.
The other arguments urged before the High Court and found against the appellants, were pressed with vigour upon us.
These arguments concern the issue of notifications invoking the shorter procedure and those notifications are questioned.
These arguments involve the validity of the notifications as (a) unauthorised by Government, (b) without formation of the necessary opinion on relevant matters, and (c) on erroneous assumption of facts.
The first ground, when amplified, is that D.P. Raval, Under Secretary, who signed the notifications under section 6 was not duly authorised to do so under the Act and the notifications were, therefore, invalid and of no effect.
The second ground is based on the assertion that there was no formation of opinion by the Government as regards urgency or that the lands were arable, and on both the points the Act requires Government to reach a decision, which fact has not been established if not disproved.
The third ground proceeds on the meaning of the expression 'arable land ' which, it is claimed, denotes land capable of cultivation or village but not land already under the plough.
We shall now proceed to consider each point in turn.
Raval 's authority to issue the notification under section 6 is questioned on the wording of the latter portion of that section where it is mentioned that "the declaration shah be made under the signature of a Secretary to such Government or some officer duly authorised to certify its orders.
" The argument is without substance The word 'Secretary ' is not defined either in the Land Acquisition Act or the General Clauses Act so as to exclude Additional, Joint, Deputy, Under or Assistant Secretaries.
If this were established, then it might be said that the word was intended to designate only the head of the secretarial department concerned with land acquisition.
No such indication is available from any source.
Nor was it necessary to invest any particular Secretary specially under the Act for no such requirement can be spelled out from the words relied upon.
On the other hand, the business of Government is regulated by the Rules of Business made under article 166 of the Constitution.
How those Rules operate will be more fully considered presently when we deal with the second point.
For the present it is sufficient to point out a few provisions of the Rules, Rule 7 provides: "7.
Each Department of the Secretariat shall consist of the Secretary to the Government, who shall be the 274 official head of that Department and of such other officers and servants subordinate to him as the State Government may determine : Provided that (a) more than one Department may be placed in charge of the same Secretary; (b) the work of a Department may be divided between two or more Secretaries.
" If this Rule stood by itself, it might have been necessary to place on record evidence to establish that the work of this Department was divided among the Secretaries and how, but Rules 13 and 15 additionally provide: "13.Every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a joint Secretary, a Deputy Secretary, an Under Secretary or an AssiStant Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument." "15.These rules may to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister," Rule 13 specifically places all Secretaries on equality for authentication of orders and instruments of Government and Rule 15 further authorises supplemental instructions which as we shall presently see were in fact issued.
Thus Raval was competent to sign the declaration as a Secretary.
It is not necessary to consider whether he can be treated as an officer 'duly authorised ' because he already had authority by virtue of his office and rule 13 of the Rules of Business contemplates officers other than Secretaries.
But if he did not possess the power as a Secretary he would undoubtedly have been competent as an officer duly authorised by virtue of rule 13 of the Rules of Business and that is all that section 6 requires.
No further special authorisation under the Act was necessary.
To overcome these rather obvious difficulties Mr. B. Sen raised the second point which was that the provisions of the Act require Government to form an opinion and this function cannot be delegated to the Secretaries and even if it could be delegated, strict compliance with Rules of Business and the instructions issued under Rule 15 was necessary.
He submits that there was no formation of the necessary opinion in the case before action under section 17(1) or (4) was taken.
To understand this argument 275 provision on the subject.
To begin with Art.166 of the Constitution provides.
Conduct of business of the Government of a State.
(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
" It is obvious that the executive action of the Government was in fact expressed to be taken in the name of the Governor, and that the orders were authenticated in the manner required by rule 13 of the Rules of Business already quoted.
The validity of the order could not, of course, be called in question that it was not an order made by the Governor.
Had the Government sheltered itself behind the constitutional curtain, it is a little doubtful the appellants could have successfully pierced this barrier by merely stating that the Government had not passed the orders or made the necessary determination without alleging definite facts.
In addition to the constitutional provision there is also the presumption of regularity of official acts.
Orders of Government, whether at ministerial or gubernatorial level, are all issued in the same form and the constitutional protection as well as the presumption both cover the case.
But, as it happens frequently, Government tried to establish that everything was regular.
A batch of counter affidavits was filed on behalf of Government to show how the matter was dealt with from stage to stage and the appellant filed affidavits in rejoinder and were not slow to point out infractions or supposed infractions.
As they sought to do this on facts furnished by the 276 affidavits on behalf of Government we may say a word about those affidavits.
No less than eight affidavits were filed by Government and five affidavits including one supporting the petition were filed by the petitioner in Special Civil Application No. 1003 of 1965.
Other affidavits on behalf of the other petitioners repeated the allegations.
The affidavits filed with the petitions had averted only that Government had not 'made up its mind regarding acquired lands ', that the satisfaction was 'mala fide ' and 'colourable ' and that the gap of time between the two notifications itself showed that there was no urgency.
The affidavits also raised the issue that the lands were not 'arable lands '.
Government apparently took up the challenge and flied affidavit after affidavit.
The first affidavit was filed by L. P. Raval, Under Secretary (Oct. l, 1965) that the lands were arable lands ' and Government had formed the opinion about urgency, and further that the determination of these two matters by Government was not justiciable.
This was followed by an affidavit by the Executive Engineer (Oct. 8, 1965) who stated that the master plan was ready which involved 12 villages including Pethapur where these lands are situated.
The lands were involved in the construction of main roads and the laying out of sectors.
He explained the delay between the two notices on the ground that survey had to be done and that took time but reaffirmed that the matter was urgent.
The appellants promptly questioned the formation of opinion by alleging 'that Government had not formed the opinion and that the affidavit of Raval did not establish this.
In reply another Under Secretary (Nimbalkar) filed an affidavit (Nov. 8 1965) that Jayaraman, Deputy Secretary was 'subjectively satisfied ' that the lands were 'arable lands ' and that there was urgency and asserted that both matters were for the subjective determination of Government and thus not open to question in a court of law.
This was followed by another affidavit in rejoinder from the appellants (November 24, 1965) 'that Jayaraman had not personally filed any affidavit and therefore it was not clear who had made the subjective determination regarding the matters disputed and the public purpose.
Raval 'then swore another affidaVit (August, 1966) giving details of the urgency and stated that he had considered the need for issuing the notification under section 4 and that 'it was decided ' to apply section 17(4).
He also stated that the notification under section 6 and the application of section 17(1 ) was considered first by him and then by Jayaraman and they had agreed to issue the notification and apply section 17(1).
Another affidavit ill rejoinder was filed during the hearing (December 2, 1966) that neither Raval nor Jayaraman had stated that they had satisfied themselves about section 17(4) nor had Raval or Jayaraman stated that they were authorised by the State Government 277 or by the Rules of Business or by any special order to form the said opinion.
A number of affidavits were then fled.
The Minister in Charge filed an affidavit in which he said: ". .for the purpose of urgently acquiring the lands for the Capital Project, I had given instructions initially to Shri S.M. Dudam and subsequently to Shri A.S. Gill after he became the Secretary of the Revenue Department, and had made arrangements with them, during their respective tenures as Secretaries of the Revenue Department, to take necessary action for urgent acquisition of lands for the Capital Project and had also instructed them that they or the concerned Deputy Secretaries or Under Secretaries in the Revenue Department may, without bringing the cases to my personal notice and without referring such cases to me, issue notifications under sections 4 and 6 o/the Land Acquisition Act and may apply urgency clause under section 17(1) and (4) of the said Act as the case may be wherever it was possible to invoke the urgency clause according to law." S.M. Dudani who was Secretary 'till April 2, 1965 and A.S. Gill who followed him swore two affidavits.
Their purport was almost the same A.S. Gill said: ". .Shri
Utsavbhai section Parikh, the Hon 'ble Minister for the Revenue Department for the purpose acquiring lands urgently for the Capital Project had given instructions to me and had made arrangements with me to take necessary action for urgent acquisition of lands for the Capital Project and had also instructed me that myself or the concerned Deputy Secretaries or the Under Secretaries in the Revenue Department may, without bringing the cases to his personal notice and without referring such cases to him, issue notifications under sections 4 and 6 of the said Act and may apply urgency clause under sections 17(1) and (4) of the said Act, as the case may be, wherever it was possible to invoke the urgency clause according to law.
I had given instruction to the concerned Deputy secretaries and the under Secretaries of the Revenue Department to take necessary actions under sections 4 and 6 of the said Act and to apply the urgency clause wherever it was possible according to law.
" The appellants then filed a last affidavit in rejoinder denying the power of the Minister to delegate by oral instructions his own 278 power to the Secretary and questioned the sub delegation to the Deputy and Under Secretaries.
It would thus appear that the controversy got enlarged as time passed and Government undertook more and more burden although there was hardly any attempt by the appellants to support their assertions by mentioning any facts.
The High Court noticed in its judgment that there was really nothing in the original affidavit supporting the petition which Government need have answered and yet it allowed affidavits to be filed during the hearing and even in the midst of the pronouncement of the judgment.
Each affidavit on the side of Government itself enabled the appellants to enlarge their allegations and to take up new stands.
This unusual course appears to have been permitted from a desire to be just and fair but was hardly proper and the High Court ought really to have stemmed the flow of affidavits, keeping the appellants to their burden and the Government to its burden, if any.
The Government also did not leave the appellants to their burden which would have been heavy in view of the presumption and the provisions of article 166(2) already mentioned.
The High Court having before it allegations, counter allegations and denials dealt first with the legal side of the matter.
Then it readily accepted the affidavits on the side of Government.
If it had reversed its approach it need not have embarked upon (what was perhaps unnecessary) an analysis of the many principles on which onus is distributed between rival parties and the tests on which subjective opinion as distinguished from an opinion aS to the existence of a fact, is held open to review in a court of law.
As stated already there is a strong presumption of regularity of official acts and added thereto is the prohibition contained in article 166(2).
Government was not called upon to answer the kind of affidavit which was filed with the petition because bare denial that Government had not formed an opinion could not raise an issue.
Even if Government under advice offered to disclose how the matter was dealt with, the issue did not change and it was only this.
Whether any one at all formed an opinion and if he did whether he had the necessary authority to do so.
The High Court having accepted the affidavits that Raval and Jayaraman had formed the necessary opinion was only required to see if they had the competence.
The High Court after dealing with many matters held that they had.
Mr. B. Sen has, therefore, very rightly confined himself to this aspect of the case.
and has questioned the competence of Raval and Jayaraman to act for the Government.
His contention is that the procedure followed by the Minister in Charge offended the Rules of Business and therefore the necessary satis 279 faction or the opinion of Government was wanting in the case.
In support he has relied upon Emperor vs Shibnath Banerji(1).
Mr. Sen 's argument proceeds like this: Under the Rules of Business (Rule 4) the business of Government is to be transacted in the Department specified in the First Schedule and item No. 15 covers the topic of acquisition of property and the principles on which compensation is to be determined and it is assigned to the Revenue Department.
Each Department of the Secretariat consists of a Secretary to the Government (Rule 7) but the work may be divided between two or more Secretaries.
The Minister in Charge is primarily responsible for the disposal of the business appertaining to the Department (Rule 10).
Therefore only 'the Minister for Revenue could decide questions.
Referring to the oral instructions said to have been given by the Minister, Mr. Sen refers to the instructions issued by the Governor under Rule 15 and draws attention to paragraph 3 of the instructions which reads: "3.
Except as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority of the Minister in Charge, who may by means of standing orders, give such directions as he thinks fit for the disposal of cases in the Department.
Copies of such standin g orders shall be sent to the Governor and the Chief Minister.
" He contends that a general instruction of the type mentioned by the Minister in his affidavit could only be given as a standing order of which a copy had to be sent to the Governor and the Chief Minister and, therefore, the oral instructions had no validity in law.
He submits in the alternative that at least an order in writing ought to have been passed.
Mr. S.V. Gupta in reply contends that this overlooks the opening words of Rule 10 which are "without prejudice to the provisions of rule 7," indicating that the business of land acquisition is to be transacted in the Revenue Department (Rule 4) by the Secretary to the Department (Rule 7 read with Rule 10) although the Minister is primarily responsible for the disposal of the business.
He then draws attention to the provisions of Rule 13 where a Secretary is equated to Additional, Joint, Deputy, Under and Assistant Secretaries for certain purposes and the definition of Secretary in paragraph (1 )(vii) which includes these other functionaries for 'the purpose of the Instructions.
Mr. Gupte next reads with paragraph 3 the provisions of paragraphs 4 and 5 which provide: (1) L.R. 72 I.A. 241.
280 "4.
Each Minister shall arrange with the Secretary of the Department what matters or classes of matters are to be brought to his personal notice." "5.Except as otherwise provided in these Instructions cases shall be submitted by the Secretary in the Department to which the case belongs to the Minister in charge." Mr. Gupta contends that there is nothing in the Rules or Instructions that oral instructions, if clearly issued, cannot confer on the Secretaries the power to make determinations and submits that Standing Orders refer to all cases generally and oral instructions ,can be issued in certain particular contingencies and this was done as stated in the affidavits of the Minister, A.S. Gill and S.M. Dudani which have been accepted.
He contends that there is no sub delegation because Rule 7(b) covers this case.
In our judgment the argument of Mr. Gupte is valid.
There is nothing in the Rules or Instructions which prescribes that the authority must be in writing or by Standing Orders.
Standing 'Orders are necessary for the disposal of cases in the Department (paragraph 3) and this applies to cases generally.
Paragraph 4, on the other hand, refers to "matters or classes of matters" and that is not a "case" but a "matter" in a case.
The definition of case in the Instructions is: "Case includes the papers under consideration and all previous papers and notes put in connection therewith to enable the question raised to be disposed of", but this definition is excluded by the context.
Although the case belongs to a Department [paragraph 2(i)],the word case in paragraph 3 obviously refers to the disposal of cases and not to matters arising in a case regarding which the Minister may arrange with the Secretary whether they are to be brought to his personal notice or not.
The matters here were application of section 17(1) and (4) to the acquisition of waste and arable lands and the Minister could leave this matter to his Secretaries as he did.
For this purpose Standing Orders were not only not necessary but would be inappropriate.
Reliance was placed upon the decision of the Orissa High Court in Shayamaghana Ray vs State(1) that Rules 15 must prevail over the instructions.
But 'that Rule itself provides that the Rule may be supplemented by instructions and the power so conferred was available in paragraph 4 to provide that the 'Minister may arrange with the Secretary of his Department what ,(1) A.I.R. 1952 Orissa 230.
281 matters or classes of matters are to be brought to Iris personal notice.
This dispenses with the taking of orders of the Minister each time.
Sen then refers to the words of ss.4, 6 and 17(1) and (4) which are different.
In s.4 the words are whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed ' while in s.6 the words are 'when the appropriate Government is satisfied ' and in section 17(4) the words are 'in the opinion of the appropriate Government '.
He contends that some difference must be made between them and when sub sections
(1 ) and (4) of s.17 require, a direction from the appropriate Government the determination must be by the Minister himself.
If the sections stood by themselves this argument would be unanswerable but we have the Rules of Business which specifically allow conferral of powers on Secretaries and the determination of the Secretary becomes the determination of Government.
Sen 's reference to Emperor vs
Shibnath Banerji 's case(1) is not apposite because the circumstances there were different.
That case arose from petitions under section 491 of the Code of Criminal Procedure seeking directions in the nature of habeas corpus on behalf of certain pensons detained in pursuance of orders made under Rule 26 of the Defence of India Rules 1939.
It appears that detentions were dealt with in Bengal in the Home Department and the Home Minister Bengal, in the Bengal Legislative Assembly in answer to interpellations, slated that he had directed that on receipt of the report of arrest under Rule 129 (Defence of India Rules 1939) together with a recommendation by the police for detention under Rule 26, orders of detention under Rule 26(1) (b) should at once be issued as a matter of course subject to review by Government on receipt of further details.
As Lord Thankerton pointed out tthat clearly meant the substitution of the recommendation by the police in place of the recommendation of the Governor prescribed by Rule 26 and equally rendered any order under r. 26 in conformity with the Home Minister direction, to which their Lordships referred as the routine order, ab initio void and invalid as not being in conformity with the requirements of r. 26.
Further Mr. Porter, the Additional Home Secretary, in an affidavit regarding Shibnath Banerji stated: "10.
Shibnath Banerji: He was arrested by the Police under r. 129, Defence of India Rules on 20th October 1942.
On 27th October 1942, I considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under r.26(1)(b) Defence of India Rules.
On receipt of fuller materials the case was later submitted for consideration of the Honourable 282 Home Minister, Bengal, from whom no order directing withdrawal or modification of the order of detention was received." "Their Lordships are unable to read Mr. Porter 's state ment that he had considered the materials before him as involving anything more than he has considered the report of the arrest and the recommendation of the police to see if there was material sufficient to justify the issue of an rder under the routine order.
It cannot mean that, in spite of the direction of the Home Minister in the routine order, he considered the materials before so as to satisfy himself, independently of the police recommendation that an order under r.26 should be issued.
That would not be in accordance with the requirement of the routine order that the police having recommended it the order of detention should be issued as a matter of course.
The position in the present case is different.
If Mr. Porter had sworn the affidavit that he had considered the need for detention, quite apart from the routine order, the result might have been different because of the orders being in the name of the Governor and by his order.
In any case Mr. Porter admitted that he had not considered the matter.
In our case the Secretaries concerned were given the jurisdiction to take action on behalf of Government and satisfied themselves about the need for acquisition under section 6, the urgency of the matter and the existence of waste and arable lands for the application of sub sections
(1) and (4) of section 17.
In view of the Rules of Business and the Instructions their determination became the determination of Government and no exception could be taken.
Of course, if Government had relied upon the provisions of article 166(2) and the presumption of regularity of official acts, all this enquiry would have become unnecessary since the appellants had not originally pleaded any fact.s leading to any enquiry.
However, on a review of the affidavits the provisions of the Act and the Business Rules and instructions we are satisfied that the directions under sub sections
(1) and (4) of section 17 were not invalid.
This brings us to the contention that since the lands in question were under cultivation, they did not constitute 'waste or arable lands ' because by arable land is meant land capable of being ploughed or fit for village and not land actually Cultivated.
The High Court has rejected this contention disagreeing with a decision of the Bombay High Court reported in Sadruddin Sideman vs 283 J.H. Patwardhan(1).
Mr. Sen has adopted the judgment of the Bombay High.
Court as part of his argument.
Mr. Gupte in his reply has ruled upon Guntur Ramalakhsmana and Others vs Government of Andhra.
Pradesh and another(2), Baldeo Singh and others vs State of Uttar Pradesh and others(3) and Smt.
Lakshmi Devi & others vs The State of Bihar and others(4) and the reasons given in the judgment under appeal.
We shall first deal with the three rulings from Andhra Pradesh, Allahabad and Patna High Courts.
The first contains no discussion and may not be referred to here.
In the case from Allahabad reference is made to section 17 ( 3 ) of the Act (already quoted) in which there is a provision that standing crops must be compensated for and it is inferred that by 'arable lands ' must be meant not only land fit for cultivation but also land actually under cultivation.
In the case from Patna reference is made to Halsbury 's Laws of England (II Edn.) Vol.
14 p. 633 paragraph 1187, where arable land is shown as including untilled land.
In the case from Bombay relied upon by Mr. Sen three different reasons were given.
First several dictionaries were referred to and reliance was placed upon the Oxford Dictionary in preference to Webster 's particularly because the Oxford Dictionary did not mention land under actual cultivation as one of the meanings although Webster 's Dictionary did.
The learned Judges next referred to the etymology of the word 'arable ' and finally to the dicta of Judges in Palmer vs McCormick(5) and 'Simmons vs Norton(6).
Support was then found for the view in section 17(3) of the Act, the mention of compensation for standing crops notwithstanding.
There is no definition of the word 'arable ' in the original Land Acquisition Act.
A local amendment includes garden lands in the expression.
Now lands are of different kinds: there is waste land desert land, pasture land, meadow land, grass land wood land, marshy land, hilly land, etc.
and arable land.
The Oxford Dictionary gives the meaning of 'arable ' as.
capable of being ploughed; fit for village; opposed to pasture land or wood land and gives the root as arablis in Latin.
The learned Judges have unfortunately not given sufficient attention to the kinds of land and the contrast mentioned with the meaning.
Waste land comes from the Latin vastitas or vastus (empty, desolate, without trees or grass or buildings).
It was always usual to contrast vastus with incultus (uncultivated) as in the phrase 'to lay waste ' (agrivastate).
A meadow or pasture land is pratum and arable is arvum and Cicero spoke 'of prata et arva (meadow and arable (1) A.I.R. 1965 Bom.
(2) A.I.R. 1967 A.P. 280.
(3) A.I.R. 1965 All.
(4) A.I.R. 1965 Pat.
(5) [1890] 25 Ir.
Rep.110.
(6)[1831] ; E.R. 249.
284 lands).
Grass land is not meadow or pasture land and in Latin is known as campus as for example the well known Campus Marflus at Rome, where the comitia (assembly of the Roman people ) used to meet.
Woodlands is silvae, nemora or saltus.
We have given these roots became a great deal depends on the distinctions thus visible in understanding the judicial decisions of English and Irish Courts.
Lands described in different combinations of words such as waste and arable or arable and pasture or pasture and woodland emphasise different aspects of land.
In many cases the change from one kind of use to another was held to be waste.
It is in this sense that Coke on Littleton 53b (quoted in Oxford Dictionary) said that the conversion of meadow into arable or arable into wood is waste but 2 Roll.
815 said that 'if meadows be sometimes arable, and sometimes meadow, and sometimes pasture, then the ploughing of them is not waste. ' In Lord Darey vs Askwith (Heb. 234) it is laid down as "generally true that the lessee hath no power to change the nature of the thing demised: he cannot turn meadow into arable, nor stub a wood to make it pasture, nor dry up an ancient pool or piscary, nor suffer ground to be surrounded, nor decay the pale of a park "It was thus in Simons vs Norton(1) which was an action of waste for ploughing ancient meadow that Tindal C.J. made the observations which are relied upon in the Bombay case.
He observed: "It is clearly established by several authorities, that ploughing meadow land is waste. .In grants,land often passes specifically, as meadow, pasture, arable, or by other descriptions.
Ploughing meadowland is also esteemed waste on another account; namely, that in ancient meadow, years, perhaps ages, must elapse before the sod can be restored to the state in which it was before ploughing.
The law, therefore, considers the conversion of pasture into arable as prima facie injurious to the landlord on those two grounds at least.
" Similarly, the observations of Chatterton V.C. in Palmer vs McCormick(2) and of Fitzgibbon J. in the same case cannot lead to any conclusion that 'arable land ' means only land capable of cultivation and not land actually cultivated.
Tiffs was also a case of ' alleged waste.
Chatterton V.C. observed: "arable ' does not mean land actually ploughed up or in tillage but land capable or fit to be so: for ought I know this land, though properly designated arable in 1821, may even then have been in process of acquiring (1) (2) 1890 25 Ir.
Rep, 110.
285 the character of ancient pasture, which process have commenced, and been going on for sometime." Mr. Justice Fitzgibbon observed that because the laud was not .in grass for 20 years the defendant could treat it as arable. 'that is.
cultivable by him.
The contrast between grass land and arable is thus established but it does not rule out that arable land does not include land actually cultivated.
As a matter of fact the passage from Chatterton V.C. is correctly understood in Stroude 's not only land actually ploughed upon in tillage but also I and capable or fit to be so.
In tiffs connects it is useful to see that in the Agricultural Holdings Act, 1923 (13 and 14 Geo. 5 c.9) 'arable land ' is defined as not including land in grass, and in the second schedule to the Agriculture Act, 1947 (10 and 11 Geo.
6 c. 48) special direction may be given by the Minister requiring the ploughing up of any land consisting of permanent pasture, and the land is deemed 'to be arable land and to have been arable land at all material times.
It is thus clear that by arable land is meant not only laud capable of cultivation but also actually cultivated.
It is not arable not because it is cultivated demonstrates its nature as arable land.
All this discussion by us was necessary to dispel the inferences drawn from dictionaries and repons of cases from England and Ireland, but 'the safest guide, as always, is the statute itself which is being considered.
In this connection we may first turn to the Land Acquisition Act of stood: "17.
Power to take possession in cases of urgency.
In cases of urgency, whenever the Local Government so directs.
the Collector (though no such reference has been directed or award made) may, on the expiration of fifteen days from the publication of the notice mentioned in the first paragraph of section nine, take possession of any waste or arable land needed for public purposes or for a Company.
Such land shall thereupon vest absolutely in the Government free from all encumbrances.
The Collector shall offer to the persons interested compensation for the standing crops and trees (if any) on such land; and in case such offer is not accepted, the, value of such crops and trees shall be allowed for in awarding compensation for the land under the provisions herein contained.
" LISup.
CI./68 4 286 It will be noticed that compensation was then payable for standing crops and trees (if any).
There can be no question of crops on waste land for the crops can only be on arable lands became if crops could grow or were actually grown the land would hardly be waste.
The words in parenthesis obviously indicate that land may have crops or be fallow and compensation was payable crops if there were crops.
Turning now to the section as it is today it will be noticed that the first sub section corresponds to the first and second paragraphs of section 17 of the Act of 1870 taken together.
The third paragraph of the former Act corresponds to the third sub section of 'the present.
The difference in language in the third sub section necessary because the provisions of sub section (3) are now intended to apply also to the second sub section of the present Act 'which is new.
Hence the opening words 'in every case under either of the preceding sub sections ' which means all cases arising either under sub section
(1) or sub section
The words in parenthes is (if any) in relation to the first sub section continue to have the same force and no other, as they had previously.
The learned Judges of the High Court of Bombay did not give sufficient consideration to the fact that the opening words "in every case under either of the preceding sub sections" do not play and more part than to indicate that what follows applies equally to cases under sub s.(1) and sub section
They ought to have read the words that follow the opening words in relation to sub section
(1) and if they had so read them, there would have been no difficulty in seeing the force of the words in parenthesis (if any) or why crops are mentioned when the words of the sub section are waste and arable.
The quotation from Roger 's Agriculture and Prices quoted in the Oxford Dictionary "half the arable estate, as a rule, lay in fallow",gives a clue to the meaning of the words 'if any '.
In our judgment, therefore, the conclusion of the Bombay High Court was erroneous and the judgment under appeal is right on this point.
Finally there remains the question of the constitutionality of sub sections
(1) and (4) of section 17.
On this point very little was said and it is sufficient to say that the High Court judgment under appeal adequately answers all objections.
In the result the appeals fail and are dismissed.
We, however,think that this is a proper case in which there should be no order about costs and direct accordingly.
V.P.S. Appeals dismissed.

summary:
By a notification under section 4 of the Land Acquisition Act issued on March 10, 1965 the respondent State Government notified that certain lands were needed for a public purpose, namely, the construction of the State capital, that the Government was satisfied that they were 'arable lands ' and further directed, under section 17(4) of the Act, that as the acquisition of the lands was urgently necessary, the provisions of section 5A would not apply.
Thereafter, a notification was issued under section 6 containing a direction under section 17(1) of the Act enabling the Collector to take possession of all the arable lands on the expiry of 15 days from the publication of the notice under section 9(1) of the Act.
Both Notifications were signed by an Under Secretary of the respondent Government.
The petitioners challenged the notifications in writ petitions under article 226.
In the original affidavits, the petitioners merely asserted that the Government had not made up its mind regarding the acquired lands as to urgency and that the lands were not arable.
The parties filed a number of affidavits at various stages of the bearing, the Government in order to establish that everything was regularly done, while the petitioners alleged infractions.
In one of the affidavits on behalf of the Government it was stated that file Minister in charge gave oral instructions to the Secretary that he or his under secretaries may take action under section 17(1) and (4) of the Act according to law, that the Secretary was satisfied regarding urgency and gave instructions to the Under Secretary to take the necessary action.
The High Court after considering the affidavits, dismissed the petitions.
In appeal to this Court it was contended that: (i) only a Secretary could sign the notifications and that the Under Secretary who signed the notification under section 6 was not duly authorised to do so; (ii) that there was no formation of opinion by the Government as regards urgency or that the lands were arable; (iii) that this function could not be delegated to the Secretary and even if it could be delegated, a general oral instruction given by the Minister was not according to the procedure prescribed by the Rules of Business; (iv) that since the lands in question were under cultivation, they were not waste or arable lands; and (v) that sub sections
(1) and (4) of section 17 of the Act were violative of articles 14 and 19(1)(f) of the Constitution.
HELD: Dismissing the petitions.
(1) The word 'Secretary ' is not defined in the Land Acquisition Act or the General Clauses Act so as to exclude Additional, Joint, Deputy, Under or Assistant Secretaries.
On the other hand r.13 of the Rules of Business framed under article 166 of the Constitution specifically places a 268 Secretary, Joint Secretary, Deputy Secretary, Under Secretary and Assistant Secretary on equality for authentication of orders and instruments of Government.
The Under Secretary was, therefore, competent to sign the notifications.
[273F; 274E] Even if he did not possess the power as a Secretary he would have been competent as an officer 'duly authorised ', within the meaning of section 6 of the Act, by virtue of r. 13 of the Rules of Business.
[274F] (ii) Under article 166 of the Constitution the validity of the notification could not be called in question on the ground that it was not an order made by the Governor, because, as required by the Article the executive action of the Government was expressed to be taken in the name of the Governor and the order was authenticated in the manner required by r. 13 of the Rules of Business.
In addition, there is also the presumption of regularity of official acts.
Therefore, the bare assertion that Government had not formed an opinion could not raise an issue.
The Government was not called upon to answer the affidavit of the petitioners and the Government need not have undertaken the burden of showing the regularity of their action.[275 E G; 278 D, F] (iii) Rules 7, 10, 13 and 15 of the Rules of Business specifically allow conferral of powers on Secretaries and the determination of the Secretary becomes the determination of the Government.
There is nothing in the Rules or instructions which prescribes that the authority must be in writing or by Standing Orders.
Under Paragraph 3 of the instructions issued by the Governor under r. 15 of the Rules of Business, Standing Orders are necessary for the disposal of cases in the department, and a case is defined as 'the papers under consideration and all previous papers and notes put in connection therewith to enable the question raised to be disposed of '.
Paragraph 4, on the other hand refers to "matters or classes of matters".
Therefore, paragraph 3 only refers to the disposal of cases and not to matters arising In a case, regarding which under paragraph 4, the Minister may arrange with the Secretary whether they are to be brought to his personal notice or not.
The matters in the present case were the application of section 17(1) and (4), to the acquisition of waste and Arabic lands and the Minister could leave this matter to his Secretary as he did.
For this purpose, Standing Orders were not necessary and oral instructions would be sufficient.
The Secretaries concerned were given the jurisdiction to take action on behalf of Government and they satisfied themselves about the need for acquisition under section 6, the urgency of the matter and the existence of waste and arable lands for the application of sub sections
(1) and (4) of section 17.Therefore, on a review of the affidavits, the provisions of the Act and the Business Rules and Instructions, the directions under sub sections
(1) and (4) of section 17 were not invalid.
[280 D G; 281 C D; 282 E G] Shayamaghana Ray vs State, A.I.R. 1952 Orissa 200, referred to.
Emperor vs
Shlbnath Banerji, L.R. 72 I.A. 241, distinguished.
(iv) Arable land under the Act is not only land capable of cultivation but also land actually under cultivation.
The words 'compensation for the standing crops and trees (if any) on such land ' in section 17(3), show that the land may have crops or he fallow and the crops can only be on arable land.
because.
if crops could grow or were actually grown the land Would hardly he waste land [286 A B, E] Baldeo Singh & Ors.
vs State of U.P. A.I.R. 1965 All Smt.
Lakshmi Devi Ors.
vs State of Bihar ' & Ors.
A.I.R. 1965 Pat, 400 269 and Guntur Ramalakshmamma vs Govt.
of Andhra Pradesh, A.I.R. , approved.
Sadruddin Suleman vs
J.H.Patwardhan, A.I.R.1965 Born.224.
over ruled.
(v) The High Court had rightly held that sub as.
(1) and (4) and 17 were not unconstitutional.
[286 F G]