judgement:
ivil Appeal No. 695 of 1975.
From the Judgment and Order dated 21.3.1974 of the Madras High Court in Civil Revision Petition No. 2598 of 1972.
G. Viswanatha lyer and N. Sudhakar for the Appellant.
360 V. Krishnamurthy for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
This appeal by special leave is filed against the judgment and order of the High Court of Madras whereby it remitted the matter to the Authorised Officer for dispos al in accordance with law and in the light of the observa tions made therein.
The facts giving rise to this appeal are as under: The appellant land owner held lands in Kanyakumari District in excess of 30 standard acres as on 6th April, 1960.
He filed a return in Form No. 2 as required by the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Act 58 of 1961), hereinafter called 'the Act '.
An enquiry was initiated by the Authorised Officer, Land Re forms, under Section 9(2)(b) of the Act.
The appellant raised several objections but they were overruled.
The Authorised Officer came to the conclusion that the family of the appellant could be reckoned to be of five members be tween 6th April, 1960 and 2nd October, 1962 and accordingly the land owner was entitled to 30 standard acres while his wife and daughter could hold 10 and 7.71 standard acres respectively as stridhana lands.
The appellant was directed to state which lands he wished to be included in his holding and identify the lands which fell surplus, failing which the Authorised Officer said he would be constrained to select the surplus lands.
The appellant was given five days time to make the option.
Feeling aggrieved by the decision of the Authorised Officer, the appellant preferred an appeal under Section 78(1) to the Lands Tribunal.
The appellant complained that the Authorised Officer had wrongly added the lands of his minor sons, unmarried daughter and wife gifted to them long before 1960 in his holdings for determining if his total holdings exceeded the ceiling limit fixed under Section 5(2) of the Act.
According to him the lands covered under the registered gift deed ought to have been excluded from his holding under the Explanation to Section 3(14) as a gift stood on par with a partition.
As a limb of the same argu ment the appellant contended that subsequent to the filing of the appeal, the Act was drastically amended by Tamil Nadu Land Reforms (Reduction of Ceiling on Land) Act, 1970 (Act 17 of 1970), hereinafter called 'the Amending Act ', whereby under Section 3(2), 'the date of commencement of this Act ' came to be fixed as 15th February, 1970 and the 'notified date ' came to be fixed as 2nd October, 1970 under Section 3(31) of the Act.
Consequently, argued 361 the appellant, his rights and liabilities with regard to the fixation of ceiling area were required to be worked out on the basis of the state of affairs existing on the revised date of commencement of the Act i.e. 15th February, 1970, fixed by virtue of the amendment in the Act.
He also relied on the fact that his eldest son who was a minor on th April, 1968 had attained majority on 1st January, 1970 (in the High Court judgment the date is 1st October, 1970) i.e. before the commencement of the Act on 15th February, 1970, and also before the notified date i.e. 2nd October, 1970, and hence his land could not be included in his holding as was done by the Authorised Officer.
It was also pointed out that his son had created a trust in respect of a portion of the land which would be exempt from the operation of the Act by virtue of Section 73(2)(b) of the Act.
It was, therefore, submitted that his eldest son Laxminarayanan was a necessary party and the proper course would be to set aside the im pugned order of the Authorised Officer and remand the matter for a de novo consideration after notice to his son.
The second submission made was that on 10th April, 1968 when the impugned order was made the appellant 's wife was pregnant, she had since delivered a daughter and had gifted to her 5.71 acres of Vadaseri land on 1st October, 1970 and later an additional 5.06 acres of the land from the same village, which developments had to be taken into account as subse quent events touching the determination of the appellant 's ceiling area.
Thirdly, it was pointed out that the appellant had transferred 2 acres 48 cents of section No. 2221, 0.82 cents of section No. 2208 A and 1 acre 66 cents of Vadaseri lands to a third party on 26th April, 1970 for services rendered to him.
Similarly a portion of section No. 2224 admeasuring 0.31 cents was sold to yet another third party on 23rd April, 1969 for valuable consideration and it was necessary to give effect to these transactions which were subsequent to the impugned order.
It was lastly contended by the appellant that his property bearing section Nos. 1387 A and 1363 A which was subject to mortgage had to be sold on 1st July, 1968, a development subsequent to the impugned order which too had to be noticed in fixing the ceiling area.
These transac tions, it was said, were protected by Section 21A of the Act.
It was, therefore, submitted that since an appeal was a continuation of the original proceedings it was obligatory on the part of the appellate authority to examine the impact of these subsequent developments and refix the ceiling area.
The appellant, however, contended that as third parties would have to be heard before deciding the issue, the proper course was to direct the Authorised Officer to consider the matter afresh in its entirety.
The appellate authority negatived all the contentions and dismissed the appeal with costs.
362 Thereupon, the appellant approached the High Court by way of a revision application.
Before the High Court the contention in regard to the subsequent transactions was confined to the documents executed between 15th February, 1970, the date of commencement of the Act, and 2nd October, 1970, the notified date.
That included the two settlement deeds dated 1st October, 1970 made in favour of the unmar ried daughters and the sale deed dated 26th April, 1970 executed in favour of a third party.
The contention was not pressed in respect of the transaction evidenced by the sale deed dated 23rd April, 1969 in favour of a third party.
This contention found favour with the High Court.
The High Court took the view, relying on an earlier Division Bench judgment in C.R.P. No. 1197 of 1971 (Fakir Mohmad vs The State of Tamil Nadu), that "even in respect of proceedings which commenced prior to the coming into force of the Amending Act, an affected person can take advantage of the provisions contained in Section 21A".
It was held that while Section 2 of the Amending Act reduced the ceiling area to half, bene fit was conferred by Section 2 IA and hence both the provi sions had to be read together.
It was, therefore, held that the three documents could not be ignored in fixing the ceiling area unless it is found that the documents were executed to defeat the provisions of the Act, in which case the transactions may be declared void under Section 22 of the Act.
In this view of the matter, the High Court directed the Authorised Officer to make further inquiries regarding the said three transactions and pass appropriate orders.
The High Court, however, rejected the rest of the contentions by which exclusion was sought, viz., (,i) on the conjoint reading of Section 10(8) and Section 3(14) insofar as it concerned Laxmmarayanan as a member of the appellant 's fami ly; (ii) in regard to lands which were locked in litigation; (iii) in regard to lands in the possession of mortgagees; and (iv) the lands which are covered under Section 73(vii) of the Act.
In this view that the High Court took, the matter was remitted to the Authorised Officer in regard to the aforesaid three transactions.
The appellant, feeling aggrieved by the rejection of his other contentions by the High Court, has preferred this appeal by special leave.
The main grievance of the appellant is that the High Court fell into an error in limiting the benefit of Section 21 A to three transactions only and by directing an enquiry under Section 22 overlooking the fact that it was not subject to Section 22.
He further contends that the High Court was wrong in thinking that the conten tion in regard to the sale deed dated 22nd April, 1969 was not pressed.
In brief the contention is that the High Court failed to appreciate the impact of the 363 amendments introduced by the Amending Act on the two settle ments of 1st October, 1970 and the sale deed of 26th April, 1970 and erred in holding that the relief under Section 21A must be determined after an enquiry under Section 22 of the Act.
This was the main thrust of the submissions made at the hearing of this appeal.
The Act (Act 58 of 1961) was notified on 2nd October, 1962 but the date of its commencement was fixed as 6th April, 1960.
The present proceedings had commenced under the said Act.
Th Act was amended by Act 17 of 1970 whereby the ceiling area was reduced from 30 standard acres for a family not exceeding five member to 15 standard acres and the date of commencement of the Act was shifted to 15th February, 1970 and the notified date to 2nd October, 1970.
There can be no doubt that after the passing of Act 17 of 1970 the family 's holding had to be determined with reference to the notified date i.e. 2nd October, 1970.
See: B.K.V. Radhamani Ammal vs Authorised Officer, Land Reforms, Coimbatore, The Act was enacted to provide for the fixation of ceiling on agricultural land holdings and matters connected therewith.
Section 5 fixes the ceiling area in the case of every family consisting of not more than five members at 15 standard acres after the amendment made in the provision by virtue of Section 2(2)(a) of the Amending Act.
Section 7 lays down that on and from the date of commencement of the Act, no person shall, except as otherwise provided by the Act, be entitled to hold land in excess of the ceiling area.
The family of the appellant consisted of himself, his wife, two minor sons and an unmarried daughter at the date of commencement of the Act and on the notified date as they stood before the Amending Act.
One son had become a major w.e.f.
1st January, 1970.
In the High Court judgment the date is stated to be 1st October, 1970.
That will not make any difference so far as the submission is concerned.
We may first notice Sections 21A and 22 of the Act as amended by the Amending Act.
They read as under: "21A.
Notwithstanding anything contained in Section 22 or in any other provision of this Act and in any other law for the time being in force, where, after the 15th day of February, 1970 but before the 2nd day of October, 1970.
(a) any person has effected by means of a registered instru ment a partition of his holding or part thereof; or 364 (b) any parent or grand parent has voluntarily transferred any land on account of natural love and affection to any minor son, unmarried daughter, minor grand son, or unmarried grand daughter in the male line; or (c) any person has voluntarily transferred any land (i) to any educational institution; or (ii) hospital.
of a public nature solely for the purposes of such institu tion or hospital; such partition or transfer shall be valid: Provided that in the case of transfer to such educational institution or hospital, the land transferred absolutely vests in the institution or hospital and the entire income from such land is appropriated for the insti tution or hospital." "22.
Where, on or after the date of the commencement of this Act, but before the notified date, any person has trans ferred any land held by him by sale, gift (other than gift made in contemplation of death), exchange, surrender, set tlement or in any other manner whatsoever except by bequest or has effected a partition of his holding or part thereof, the authorised officer within whose jurisdiction such land, holding or the major part thereof is situated may, after notice to such person and other persons affected by such transfer or partition and after such enquiry as he thinks fit to make, declare the transfer or partition to be void if he finds that the transfer or the partition, as the case may be, defeats any of the provisions of this Act.
" Section 21A begins with a non obstante clause and limits its application to partition or transfer mentioned in clauses (a) to (c) effected between 15th February, 1970 and 2nd October, 1970.
The settlement deeds, both dated 1st October, 1970 and the sale deed dated 26th April, 1970 fall within the two termini points fixed by Section 21A but the sale deed dated 23rd April, 1969 is clearly outside the scope of Section 21A and therefore it seems the learned counsel for the appellant in the High Court rightly did not press the claim in regard to the 365 land covered under the said document.
However, the learned counsel for the appellant before us pointed out that while the High Court rightly came to the conclusion that the appellant was entitled to the benefit of Section 21A insofar as the two settlement deeds of 1st October, 1970 and the sale deed of 26th April, 1970 are concerned, it fell into an error in holding "However, if those transfers are meant to defeat any of the provisions of the Act, then the Authorised Officer may declare the said transfers to be void under Section 22 of the Act" thereby totally overlooking the opening words of Section 2 IA which are intended to override Section 22.
The further observations of the High Court based on decision in Naganatha Ayyar vs Authorised Officer, [197 1]1 M.L.J. 274 make it clear that the High Court misread the observations of Ramanujam, J. when it said: "Ramanujam, J. pointed out that all transfers effected between the date of commencement of the Act and the notified date cannot be declared to be void as defeating the provi sions of the Act.
It has been pointed out that only if the transfers are really not transfers but sham and nominal transactions or bogus transactions, they would be defeating the provisions of the Act and that only then they can be declared to be void under Section 22 of the Act".
The above observations are somewhat confusing.
A sham, nominal or bogus document may not necessarily be one intend ed to defeat any provision of the Act.
A partition or trans fer evidenced by such a document would be of no avail to seek the benefit of Section 21A regardless of Section 22.
Section 21A, which begins with the words notwithstanding anything contained in Section 22 clearly overrides Section 22 and therefore the transactions referred to in Section 21A cannot be the subject matter of enquiry under Section 22.
Section 21A refers to only three types of transfers viz. ,(i) transfer of holding by a registered partition deed; (ii) transfer of land to specified individuals on account of natural love and affection; and (iii) transfer in favour of an educational institution or hospital of a public nature solely for the purposes of such institution or hospital provided the transferred land vests absolutely in the insti tution or hospital and the entire income from such land is appropriated for the institution or hospital.
Even though the transactions referred to in Section 21A cannot be de clared void under Section 22 as defeating any of the provi sions of the Act, the Authorised Officer would be entitled dehors Section 22 of the Act, to find out if the instruments of transfer or partition though answering the description of transactions under Section 21A, are in fact genuine 366 transactions and not sham, nominal or bogus ones.
Similarly the Authorised Officer would be entitled to determine if the instruments of transfer even if genuine answer the descrip tion of documents referred to in Section 21 A, and if not, he would be justified in invoking Section 22 of the Act.
To put it differently when any party seeks the benefit of Section 21A, he must show, if a doubt arises, that (i) the instrument on which he relies is a genuine one and not a sham, nominal or bogus one and (ii) it answers the descrip tion of the documents referred to by Section 21A.
If the document is not found to be genuine, the Authorised Officer will not act on it, if it is genuine, the Authorised Officer will determine if it is one referred to in Section 21A and if not he will resort to Section 22 of the Act.
On this consideration the sale deed dated 26th April, 1970 in favour of a third party clearly falls outside the purview of Sec tion 21A and the Authorised Officer will be entitled to embark on an enquiry under Section 22 of the Act, if the instrument is otherwise genuine.
In regard to the two set tlements in favour of unmarried daughters also the Autho rised Officer will have to consider if the settlements answer the description of the documents referred to in Section 21A even if they are genuine.
If he answers both these points in the affirmative he need not test the docu ments on the additional requirement of Section 22 but if he comes to the conclusion that the documents do not fall within Section 21A, he would be required to test their validity on the touchstone of Section 22 of the Act.
We have thought it necessary to clearly define the scope of the enquiry before the Authorised Officer on remand to clear the doubt, if any, arising from the observations of the High Court and to avoid unnecessary complications.
The next contention urged by the learned counsel for the appellant is based on the plain language of Section 10(2) read with the definition of 'family ' in Section 3(14) of the Act.
The appellant 's son Laxminarayanan is stated to have attained majority on 1st January, 1970, i.e. before the date of commencement of the Act on 15th February, 1970 and the notified date of 2nd October, 1970.
Even if the date stated by the High Court is correct, he attained majority before 2nd October, 1970.
On his attaining majority he ceased to be a member of the appellant 's family.
Under Section 10(2), the Authorised Officer has to take into account only those members of the family as are covered by the definition of Section 3(14) of the Act.
Although Laxminarayan was undoubt edly a member of the appellant 's family on the date on which the Authorised Officer first determined the ceiling area, the submission of the appellant 's counsel is that he having ceased to be a minor son, he cannot be included in the appellant 's family when 367 the Authorised Officer reconsiders the ceiling area on remand.
The High Court negatived this contention and in our opinion rightly.
The submission overlooks the provision contained in Section 3 of the Amending Act by which the date of commencement of the Act and the notified date were re vised.
Section 3 reads as under: "Saving (1) Subject to the provisions of sub section (2), any action taken (including any order made, notification issued, deci sion or direction given, proceeding taken, liability or penalty incurred and punishment awarded) under the provi sions of the Principal Act before the date of the publica tion of this Act in the Fort St. George Gazette, may be continued or enforced after the said date in accordance with the provisions of the Principal Act as if this Act had not been passed.
(2) Nothing in sub section (1) shall be deemed to entitle any person whether or not such person is a party to any proceeding mentioned in sub section (1), to hold after the 15th day of February 1970, land in excess of the ceiling area under the Principal Act as modified by Section 2 and the provisions of the Principal Act as modified by Section shall, after the said date, apply to such person.
" The proceedings in this case had started and concluded before the Authorised Officer long before the Amending Act saw the light of the day.
Under Section 3(1) of the Amending Act, any action taking (including any order made, decision or direction given, proceeding taken, etc.) under the provi sions of Act before the date of publication, of the Amending Act, can be continued and enforced after the said date in accordance with the provisions of the Act as if the Amending Act had not been passed.
This is, however, subject to sub section (2) which carves out an exception to sub section (1) insofar as the reduction of the ceiling area from 30 stand ard acres to 15 standard acres is concerned.
The High Court was, therefore, right in rejecting this contention.
Lastly, it was submitted that lands which were converted into orchards of topes before 1st July, 1959 are exempt from the provisions of the Act by virtue of Section 73(vii) of the Act.
The High Court has rejected this contention on the following finding: 368 "In the present case certain lands are claimed to be topes and exemption is claimed regarding the same.
But there is nothing to show that the said lands had been converted into topes prior to first day of July, 1959.
Since the factual foundation is not laid we cannot entertain this contention.
These were the only contentions urged before us.
In view of the above discussion we see no merit in this appeal and dismiss the same with costs.
Y. Lal Appeal dis missed.

dataset_name: IN-Abs

summary:
The appellant land owner held lands in excess of 30 standard acres as on 6.4.1960.
He filed a return as required by the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 and an enquiry was initiated by the Authorised Officer concerned under Section 9(2)(b) of the Act.
Several objections raised by the appellant were rejected and the Authorised Officer came to the conclusion that the family of the appellant could be reckoned to be of five members be tween 6.4.1960 and 2.10.1962 and thus the appellant was entitled to 30 standard acres; his wife and daughter however could hold 10 and 7.71 standard acres respectively as strid hana.
The appellant was asked to elect which lands he wished to be included in his holding and state which lands should be treated as surplus.
Feeling aggrieved by the said deter mination, the appellant preferred an appeal under Section 78(1) to the Land Tribunal.
The appellant contended (i) that the Authorised Officer had wrongly included the lands of his minor sons, unmarried daughter and wife gifted to them long before 1960; (ii) that subsequent to the filing of the appeal, the Act was amended as a consequence whereof his rights and liabilities with regard to the fixation of ceil ing area were required to be worked out on the basis of the revised date of commencement of the Act i.e. 15.2.1970; notified date being 2.10.1970.
It was also urged by the appellant that the lands of his eldest son Laxminarayanan could not be included in his holding.
On those grounds amongst others relating to the effect of subsequent transac tions the appellant prayed that the matter ought to be remanded to the Authorised Tribunal for a de novo considera tion.
The appellant authority rejected all the contentions and dismissed the appeal, whereupon the appellant preferred a revision application before the High Court.
Before the High Court his plea regarding subsequent transactions was confined to the documents executed between 15th February 1970, the date of commencement of the 359 Act, and 2nd October 1970, the notified date; contentions regarding other transactions were not pressed.
The High Court accepted this contention and took the view that even in respect of proceedings which commenced prior to the coming into force of the Amending Act, an affected person can take advantage of the provisions contained In Section 2 IA.
The High Court held that while Section 2 of the Amending Act reduced the ceiling area to half, benefit was conferred by Section 21A and hence both the provisions had to be read together.
On that reasoning the High Court opined that the three documents relating to subsequent transactions executed between the said date, could not be ignored in fixing the ceiling area unless it was found that the documents were executed to defeat the provisions of the Act, in which case the transactions may be declared void under Section 22 of the Act.
The High Court accordingly directed the Authorised Officer to make further inquiries regarding the three trans actions in question and pass appropriate orders.
The High Court rejected the other contentions.
The appellant being aggrieved with the rejection of other points raised before the High Court has preferred this appeal by special leave.
Dismissing the appeal, this Court, HELD: The proceedings in this case had started and concluded before the Authorised Officer long before the Amending Act saw the light of the day.
Under Section 3(1) of the Amending Act, any action taken (including any order made, decision or direction given, proceeding taken, etc.) under the provisions of Act before the date of publication of the Amending Act, can be continued and enforced after the said date in accordance with the provisions of the Act as if the Amending Act had not been passed.
This is however, subject to subsection (2) which carves out an exception to sub section (1) insofar as the reduction of the ceiling area from 30 standard acres to 15 standard acres is concerned.
[367E G] B.K.V. Radhamani Ammal vs Authorised Officer, Land Reforms, Coimbatore, , referred to.


judgement:
ivil Appeal No. 1130 of 1990.
From the Judgment and Order dated 19.6.1989 of the Patna High Court in L.P.A. No. 51 of 1987.
G.B. Pai, S.K. Patri and J.R. Das for the Appellant.
Dr. S.K. Ghose, Mrs. M. Qammaruddin and M. Qammaruddin (NP) for the Respondents.
The Judgment of the Court was delivered by 404 K. JAGANNATHA SHETTY, J.
Special Leave granted.
Whether International Labour Day (1st May) should be paid holiday in addition to the existing holidays for the employees of the appellant Company is the sole question for determination in this appeal.
The appellant is a public limited company having manufacturing units and selling outlets in the different parts of the country.
In the State of Bihar the company has an establishment at Mona Road, Burma Mines, Jamshedpur manufacturing Industrial and Medical Cases and there is another establishment located at Ranchi manufacturing liquid Oxygen Explosives.
The holidays available to the employees of the company 's establishment are provided by the settlement dated 14 March 1971.
The settlement provides for a total number of 13 holidays for office staff and 14 holidays for the factory staff.
The relevant portion of the settlement reads: "Provision of Settlement dated 14.3.
1971 ARTICLE: Leave and Holidays (c) The number of National/Festival Holidays to which the factory staff and factory general staff are entitled will be enhanced from the present number of 10 to 14 days including 3 National Holidays viz. Republic Day, Independence Day, Mahatma Gandhi 's birthday and Viswakarma Puja.
(d) The number of National/Festival holidays for office and office general staff will be enhanced from 17 to 18 days per calendar year including 3 National Holidays viz. Republic Day, Independence Day and Mahatma Gandhi 's birthday.
" In 1977, the State of Bihar enacted the Bihar Indus trial Establishments (National and Festival Holidays and Casual Leave) Act, 1971 (Act No. 17 of 1977) (called shortly as the 'Act ') making provisions for National/Festival holi days and casual leave for workers.
We are concerned with Sections 3 and 13 of the Act which must be set out in full: "Section 3 405 National and Festival Holidays: (1) Every employee shall be granted following in each calen dar year in such manner and on such terms and conditions as may be prescribed: (a) Three National Holidays on the 26th January, 15th August and 2nd October.
(b) Four other holidays on any festival out of the festivals mentioned in the schedule.
(c) International Labour Day on 1st May. (2) The Government may add to or exclude a festival from the Schedule by a notification in the official Gazette and on publication of such notification, the Schedule shall be deemed to be amended accordingly." Section 13 of the Act . "Right and privileges Under any other law not to be affect ed: Where any employee of an industrial establishment is entitled to such rights and privileges under any other law for the time being in force or under any contract or custom or usage applying to the said establishment, which are more favourable to him, than any right and privileges conferred by this Act, nothing contained in this Act shall affect such rights or privileges.
" It will be convenient if at this stage, we also read sub rule 3 of the Rule 3(2) of the Bihar Rules framed under Section 14 of the Act: "Rule 3.
National Festival Holidays: (1) xxx xxx xxx (2) Each employer of an industrial establishment shall at the beginning of each calendar year or within 60 days from the date of commencement of work in the case of new indus trial establishments, display a notice asking his employees to indicate their choice in respect of 4 festival holidays out of the list of festival holidays mentioned in the 406 schedule under sub section (1)(b) of Section 3 of the Act.
" Section 3 makes it mandatory to declare holidays on 6th January, 15th August, 1st May and 2nd October, besides 4 other holidays on festivals out of the festivals mentioned in the schedule.
Subrule (2) of rule 3 provides procedure for fixing the four festival holidays at the beginning of each calendar year.
The employer shall display a notice asking his employees to indicate their choice in respect ot 4 festival holidays out of the list of festival holidays mentioned in the schedule to section 3(1)(b).
Section 13 provides that the rights and privileges of the workmen under any other law or under any contract or custom or usage applicable to the establishment which are more favourable to the workmen than that conferred by the Act shall not be affected.
Since the employees of the compa ny 's establishment at Jamshedpur were allowed more favour able holidays every year i.e. 18 (for office staff) and 14 (for factory staff) against the total of 3 holidays provided for in the Act, the company wanted to declare the first May as holiday by adjusting the holidays allowed in the settle ment. 'The workmen, however took the stand that the first May should not be adjusted within the total number of holi days provided in the settlement but should be given as an additional holiday.
Negotiations followed but neither side was willing to give up its claim.
The conciliation officer could not bring about settlement.
Upon failure of conciliation, the statuto ry authorities directed the company to declare 1st May as holiday in addition to the holidays provided for in the settlement.
The company moved the High Court under Article 226 of the Constitution challenging the direction of the authorities.
The High Court dismissed the writ petition observing thus: "Under the existing arrangement, the employees are having 14/18 paid holidays in an year and that cannot be defeated by Section 3 of the Act.
But section 13 expressly provides that if the rights and privileges in respect of paid holi days enjoyed by the employees are more favourable than are prescribed by section 3, their existing rights and privi leges as to the total number of holidays will not be preju diced by section 3.
It is clear that section 3 is not in tended to prescribe a minimum number of paid holidays in addition to the existing ones.
The holiday on the 1st May prescribed under the Act being compulsory in nature, 407 therefore, must be in addition to the privileges already granted to the workmen under the agreement.
" We are afraid we cannot agree with this line of reason ing adopted by the High Court.
In fact, the conclusion and the reasoning seem to be inconsistent with each other.
Section 3 provides for three National holidays, one Interna tional Labour Day, and four festival holidays.
It thus statutorily fixes.eight paid holidays, four out of them are left to the choice of the management and employees for festival occasions.
These eight holidays however, are not in addition to the holidays that are mutually agreed upon in the settlement.
They are the minimum holidays which the employees are entitled to.
If there is existing settlement by which the employees are entitled to more than eight holidays the management could not take away that rights and privileges.
To protect the employees in such cases the Statute intervenes by Section 13.
If the employees are entitled to more than eight holidays ' under any contract or usage applicable to the said establishment, or under any other law for the time being in force that rights and privi leges are saved by section 13.
This seems to be the require ment of the statute.
The case with not a dissimilar problem was in Tata Oil Mills Co. vs K.V. Gopalan & Ors.
, There this Court considered the scheme and scope of sections 3 and 11 of the Kerala Industrial Establishment (National and Festival Holidays, which are similar in terms with sections 3 and 13 of the Act with which we are concerned.
Section 3 of the Kerala Act provides: "Grant of National and Festival holidays: "Every employee shall be allowed in each calendar year a holiday of one full day on the 26th January, 15th August and the 1st May and four other holidays each of one whole day for such festivals as the Inspector may, in consultation with the employer and the employees specify in respect of any industrial establishment." Section 11 of the Kerala Act reads: 'Rights and privileges under other laws, etc.
are not 408 affected Nothing contained in this Act shall adversely affect any rights or privileges which any employee is enti tled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract, custom or usage, if such right or privileges are more favourable to him that those to which he would be entitled under this Act.
" Considering the rights of workmen under those provisions Gajendragadkar, CJ., speaking for this Court observed (at 764): "If under the existing arrangement the employees are enti tled to have more than 7 paid holidays, that right will not be defeated by section 3, because section 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are pre scribed by section 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by section 3.
The scheme of section 11 thus clearly shows that section 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by section 3 plus the six holidays to which they are entitled under the existing arrangement.
" In the present case it may be relevant to note that the festival holidays have not been identified or specified in the settlement.
They have to be selected and declared as holidays with notice to employees every year.
It is only three National holidays that have been specified therein in addition to Vishwakarma Puja day for the factory staff and factory general staff.
Now, the statute prescribes the same three National holidays, besides International Labour Day and four festival holidays.
But these 3 holidays are not to the exclusion of or in addition to the total number of holidays agreed upon under the settlement.
Indeed, it could not be so, since three National holidays are common both in the settlement and statute.
The total number of 14 holidays under the settlement as against 3 holidays under the statute remains undisturbed by section 13 of the Act since it is more favourable to the employees than the rights and privi leges conferred by the Act.
When thus being the position, the management would be entitled to adjust the International Labour Day as a paid holiday within the fourteen days al lowed under.the settlement.
The 'demand of the employees that 409 it should be in addition to fourteen days has no support either under the settlement or by the terminology of the statute.
In the result the appeal is allowed.
The judgment of the High Court is set aside.
There will be, however, no order as to costs.
N.P.V. Appeal allowed.

summary:
The appellant a Public Limited Company had two estab lishments in the State of Bihar.
The holidays available to the employees of the appellant company were provided by the settlement dated 14th March, 1971.
The settlement provided for a total number of 18 holidays for office staff and 14 holidays for the factory staff.
There was a dispute between the management and the employees as to whether the International Labour Day (1st May) which was declared as a mandatory holiday under the Bihar Industrial Establishments (National and Festival Holidays and Casual Leave) Act, 1977 should be a paid holi day in addition to the existing holidays.
While the manage ment wanted to declare 1st May as holiday by adjusting the holidays allowed in the settlement, employees wanted it to be given as an additional holiday.
Negotiations having failed and the conciliation officer being unable to bring about settlement, the statutory authorities directed the company to declare 1st May as holiday in addition to the holidays provided for in the settlement.
The appellant company filed a writ Petition before the High Court, chal lenging the direction of the authorities.
Dismissing the Writ Petition, the High Court held that the holiday on 1st May prescribed under the Act being compulsory in nature, must be in addition to the privileges already granted to the workmen under the agreement.
Hence the appeal by the Compa ny.
Allowing the appeal, by special leave, this Court.
HELD: Section 3 of the Bihar Industrial Establishments (National and Festival Holidays and Casual Leave) Act, 1977 provides for three National holidays, one International Labour Day and four 403 festival holidays.
It thus statutorily fixes eight paid holidays; for out of them are left to the choice of the management and employees for festival occasions.
These eight holidays, however, are not in addition to the holidays that are mutually agreed upon in the settlement.
They are the minimum holidays which the employees are entitled to.
If the employees are entitled to more than eight holidays under any contract or usage applicable to the said establishment, or under any other law for the time being in force, those rights and privileges are saved by Section 13.
This is the requirement of the statute.
[407B D] In the present case, the festival holidays have not been identified or specified in the Settlement.
They have to be selected and declared as holidays with notice to employees every year.
It is only three National holidays that have been specified therein in addition to Vishwakarma Puja day for 'the factory staff and factory general staff.
Now, the statute prescribes the same three National holidays, besides International Labour Day and four festival holidays.
But these 8 holidays are not to the exclusion of or in addition to the total number of holidays agreed upon under the set tlement.
The total number of 14 holidays under the settle ment as against 8 holidays under the statute remains undis turbed by section 13 of the Act since it is more favourable to the employees than the rights and privileges conferred by the Act.
That being the position, the management would be entitled to adjust the International Labour Day as a paid holiday within the fourteen days allowed under the settle ment.
The demand of the employees that it should be in addition to fourteen days has no support either under the settlement or by the terminology of the statute.
[468E H; 469A] Tata Oil Mills Co. vs K.V. Gopalan & Ors., , referred to.


judgement:
iminal Appeal No. 29 of 1956.
Appeal from the judgment and order dated August 24, 1955, of the Calcutta High Court, in Criminal Appeal No. 196 of 1954, arising out of the judgment and order dated June 7, 1954, of the Court of the Judge, Special Court, Burdwan, in Special Court case No. 10 of 1952.
section C. Issacs and section N. Mukherjee, for the appellant.
B. Sen and P. K. Bose, for the respondent.
September 11.
The Judgment of the Court was delivered by KAPUR J.
This is an appeal by leave of the High Court of Calcutta against the judgment and order of that Court dismissing the appellant 's appeal against the order of conviction by the Special Court of Burdwan for an offence under section 165 A, Indian Penal Code and six months ' rigorous imprisonment.
The facts leading to this appeal are that one Istipada Ghosh and his son were being tried in the court of an Assistant Sessions Judge, Burdwan, with a jury of five.
During the course of the trial the appellant approached one of the jurors Baidya Nath Mukherjee and offered him illegal gratification as an inducement for giving a verdict favourable to Ghoslies.
On the morning of September 6, 1952, the juror narrated these facts to the police and thereupon the officer in charge sent a Sub Inspector to arrest the appellant if he offered the bribe.
After a little while the appellant came to the appointed place and offered Rs. 40 in four 10 rupee notes to the juror and while he was trying to pass those notes to the juror the Police Officer arrested the appellant.
The First Information Report for an offence under sections 161/116, Indian Penal Code was made soon after.
And after investigation a report 1278 was made by the police officer in charge Burdwan police station which resulted in the case being sent to the Special Judge, Burdwan.
On November 27, 1952, the Government issued the following notification No. 6603J under section 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W. B. XXI of 1949): " In exercise of the power conferred by sub section (2) of section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949), the Governor is pleased to distribute to the Burdwan Special Court constituted by notification No. 4632J, dated the 22nd August, 1952, under section 2 of the said Act the following cases involving offences specified in the Schedule to the said Act to be tried by the said Special Court: (4) The State versus Bhajhari Mondal, son of Bhuson Chandra Mondal of Katwa Station Bazar Police Station Katwa, district Burdwan tinder sections 161/116 of the Indian Penal Code.
This notification shows that the offence charged against the appellant was one under sections 161/116 of the Indian Penal Code.
The order sheet of the Special Court shows that the records of the case State vs B. C. Mondal under sections 161/116 Indian Penal Code were received by the Special Judge on December 23, 1952, and the Special Court took cognizance of the case, the appellant was summoned for appearance on January 22, 1953, and he did appear on that day.
On December 21, 1953, after several adjournments the hearing of the case was fixed for January 29, 1954, on which date the examination of witnesses commenced.
On February 10, 1954, a charge under section 165A, Indian Penal Code was framed by the Special Judge.
The trial ended on June 7, 1954, and the appellant was convicted under section 165A of the Indian Penal Code and sentenced to six months ' rigorous imprisonment.
Against this order of conviction the appellant took an appeal to the High Court of Calcutta which was dismissed.
It held that the appel 1279 lant had rightly been convicted under section 165,A and that the Special Court had jurisdiction to try the offence under that section from July 28, 1952, to May 9, 1953, under section 7 of the Central Act (XLVI of 1952) and from May 9, 1953, under the West Bengal Act (W. B. XV of 1953).
It also held that any defect in the taking of cognizance was curable under section 529 (e) of the Criminal Procedure Code and that as a matter of fact the Special Judge took cognizance under section 165A and not under sections 161/116, Indian Penal Code.
On December 16, 1955, the High Court granted leave to appeal to this Court.
Counsel for the appellant has not contested the appeal on any question of fact but has confined his arguments to the question of jurisdiction.
He contended that the Special Judge had no jurisdiction to try the case as (1) at the time he took cognizance of the case, section 165A, Indian Penal Code, was not an offence specified in the Schedule of West Bengal Act XXI of 1949; (2) the case distributed to him was one under sections 161/116 an offence which no longer existed in the Indian Penal Code; (3) the Special Judge was exercising jurisdiction under the West Bengal Act (W. B. XXI of 1949) and not under the Central Act (XLVI of 1952) as no Special Judges were appointed by the State Government under that Act; (4) the appellant could not be tried under the West Bengal Act XV of 1953 because there was no distribution of a case against him under section 165A, Indian Penal Code.
In order to decide these matters it is necessary to set out the dates on which the various statutes came into force and to See what provisions were made therein.
On March 11, 1947, Prevention of Corruption Act (Act 11 of 1947) was enacted by the Central Legislature.
The West Bengal Legislature enacted the West Bengal Criminal Law Amendment Act of 1949 (W. B. XXI of 1949) which received the assent of the Governor General on June 23, 1949.
Its preamble shows the objects of the Act to be more speedy trial and more effective punishment of certain offences.
By section 2 of this Act, Special Courts were set up in West Bengal which under section 3 were to be presided over by Special 1280 Judges.
Section 4 provided for allotment of cases for trial to the various Special Judges and also authorised the Provincial Government to transfer any case from one Special Judge to another and to make modifications in the description of cases (whether in the name of the accused or in the charges preferred or in any other manner) as may be considered necessary.
The Special Judge bad jurisdiction to try the cases for the time being allotted to him under section 4 (1) in respect of such of the charges for the offences specified in the Schedule as may be preferred against the accused.
All cases pending before any court or before any other Special Judge were deemed to be transferred to the Special Judge to whom they were allotted.
The Special Judge when trying a case allotted to him could also try any offence whether specified in the Schedule or not with which an accused could be charged at the same trial.
By section 5 the Special Judge could take cognizance of a case without the case being committed and was to follow the procedure of warrant cases and the court of the Special Judge was deemed to be a court of Session trying without a jury.
By section 8 rules of evidence were amended in certain particulars.
Sec tion 9 provided for enhanced punishment.
By section the provisions of the Prevention of Corruption Act were made applicable.
The schedule to the Act enumerates the offences triable by a Special Judge, the relevant items of which were: (1) " An offence punishable under sections 161, 162, 163 or section 165 of the Indian Penal Code. . . . . . . . . . (8) Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1 to 7 ".
On July 28, 1952, the Central Legislature enacted the Criminal Law Amendment Act (Act XLVI of 1952) by section 3 of which an offence of abetment, section 165A with an enhanced punishment was inserted.
section 165A. " Whoever abets any offence punishable under section 161 or section 165, whether or not that 1281 offence is committed in consequence of the abetment, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both ".
By section 6 the State Government were authorised by notification to appoint Special Judges for various areas to try the following offences: (a) " an offence punishable under section 161, section 165 or section 165A of the Indian Penal Code (Act XLV of 1860) or subsection (2) of section 5 of the Prevention of Corruption Act (II of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). . . " By section 7 exclusive jurisdiction was conferred on Special Judges.
The effect of this enactment was the insertion in the Penal Code of an offence 165A and the creation of Special Judges to be appointed by the State.
On August 12, 1952, the Central Legislature passed another Act, the Prevention of Corruption (Second Amendment) Act (59 of 1952), section 3 of which changes the rules of evidence in regard to presumption and onus by adding sub section 2 to section 4 of the principal Act by which it was provided: Where in any trial of an offence punishable under section 165A of the Indian Penal Code (Act XLV of 1860) it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the Indian Penal Code or, as the case may be, without consideration or for a consideration which he knows to be inadequate ".
On July 30, 1952, an Act, to amend the West Bengal Act XXI of 1949, the West Bengal Criminal Law Amendment (Special Court Amending Act) (W. B. XII of 1952) received the assent of the President and came into force.
Section 3 of this Act substituted a new section 2 in place of section 2 of the West Bengal Act (W. B. XXI 1282 of 1949).
This substituted section authorised the State Government to constitute Special Courts and to appoint Special Judges to preside over such courts which had jurisdiction throughout West Bengal.
By section 5, the following was substituted in place of section 4 of the West Bengal Act XXI of 1949: " (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law, the offences specified in the Schedule shall be triable by Special Courts only: Provided that when trying any case, a Special Court may also try any offence other than an offence ,specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial.
(2) The distribution amongst Special Courts of cases involving offences specified in the Schedule, to be tried by them shall be made by the State Government ".
The Schedule under the West Bengal Act (W.B. XXI of 1949) was also amended by the insertion of section 164 Indian Penal Code only.
The West Bengal Act XXI of 1949 was further amended by the West Bengal Criminal Law Amendment (Special Courts) Amending Act, 1953 (Act XV of 1953).
It received the assent of the President and came into force on May 9, 1953.
This Act added section 165A, Indian Penal Code in item No. 1 of the Schedule of the 1949 West Bengal Act.
The result of these various enactments, Central as well as State was the creation of Special Courts to try offences which were specified in the case of West Bengal (W. B. XXI of 1949) in the Schedule and in the case of Central Act in the body of the Act itself The West Bengal Act (W. B. XXI of 1949) created Special Judges to try cases involving offences specified in the Schedule and allotted to them by the State Government alone.
Under the Central Act (XLVI of 1952) also the State Government was authorised to appoint Special Judges and the offences specified in the Act were triable by such Judges as stated in section 7(2) of the Act.
The procedure to be followed by the 1283 Special Judges was that prescribed for the trial of warrant cases.
Therefore the jurisdiction of Special Judges appointed under this State enactment to try cases relating to offences specified in the Schedule arose only when they were allotted to them.
By the West Bengal Amending Act of 1952 (W. B. XII of 1952) in place of " Special Judges " the words "Special Courts " were substituted and two conditions necessary for conferring jurisdiction on such Courts were: (1) cases to be tried related to offences specified in the Schedule and (2) the State Government had to make the distribution of such cases to the various Special Courts.
Therefore no Special Court had jurisdiction to try a case unless it was for offences specified in the Schedule and the State Government distributed it to the Special Court.
The notification in the present case specified the name of the accused, the offence for which he was to be tried as one under section 161/116, Indian Penal Code, and the case was distributed to the Special Court, Burdwan for trial.
On the date of the notification section 161 and abetment of section 161 were offences specified in the Schedule but as a result of the amendment by the Criminal law Amendment Act 1952 (XLVL of 1952) section 165A had been inserted in the Code providing for punishment for abetment of offences mentioned in sections 161 or 165.
Section 165A created a distinct and separate offence and therefore abetment of an offence under section 161 was no longer an offence under section 161/ 116 of the Code.
Section 165A was not included in the Schedule to the West Bengal Act (W. B. XXI of 1949).
Counsel for the State contended that this section although not specifically mentioned was all the time specified in and must be deemed to have been specified in the Schedule to the West Bengal Act (W. B. XXI of 1949) because item 8 specifically mentioned abetment of offences in items I to 7 and that section 165A only prescribes punishment for abetment of offences under sections 161 or 165 and cannot be called a new or a different offence.
Section 165A is not merely a restatement of the offence of abetment under section 116 of the Code.
It 163 1284 also comprises abetment under section 109 of the Code and provides an enhanced penalty of three years imprisonment instead of 1/4th of three years imposeable under section 116.
It further attracts the application of section 4 (2) of the Prevention of Corruption Act (11 of 1947) as subsequently amended.
It cannot be, said therefore that merely because the abetment of an offence under section 161 was specified in the Schedule of the West Bengal Act of 1949, section 165A which did not then exist in the Penal Code, must be deemed to have been specified therein.
It is significant that the West Bengal Act was further amended on May 9, 1953, by Act XV of 1953 in order to include section 165A in the Schedule.
It appears therefore that under the notification the case distributed to the Special Court for the appellant 's trial was for a non existing offence because when the Special Judge took cognizance of the case there was no such offence as sections 161/116 of the Indian Penal Code.
The notification did not mention section 165A of the Code and at the time when the Special Judge purported to take cognizance he had no jurisdiction to do so and to try the case as the offence under section 165A was not in the Schedule of the West Bengal Act, 1949, as amended in 1952.
The crucial date for the purpose of determining the jurisdiction of the Court would be the date when the Court received the record and took cognizance of the case and took any step in aid of the progress of the case and not when the evidence of the witnesses began to be recorded.
Under section 4 of West Bengal Act (W.B. XXI of 1949) as amended by the Act of 1952 the jurisdiction of the Court arises when the notification is issued distributing the case to a particular Special Court giving the name of the accused and mentioning the charge or charges against him which must be under one of the offences specified in the Schedule.
In the absence of any of these elements the Special Court would have no Jurisdiction.
The High Court held.
" that the offence under section 165A was always triable by a Special Judge only from 28th July, 1952, to 9th May, 1953, under section 7 of the Central Act 1285 and from 9th May, 1953, under the W. B. Act XV of 1953 ".
As already stated the case which was distributed to the Special Judge was one under section 161/116, Indian Penal Code an offence not then existing in the Code and as section 165A was not in the Schedule as an offence triable by a Special Judge it could not be held that the Special Judge was trying the appellant for an offence under section 165A.
There is nothing to indicate that the appellant was being tried upto May 9, 1953, under section 7 of the Central Act.
No notification of the State Government appointing any Special Judge under section 6 of the Central Act (Act XLVI of 1952) was brought to our notice.
It was on the other hand stated by counsel for the State that there was no such notification.
Nor is there anything to show that the Special Judge of Burdwan was trying the appellants ' case under section 7 of that Act.
We are of the opinion that the trial was not under the Central Act, 1952.
Nor could the trial be under the provisions of West Bengal Act XV of 1953 because no distribution of the appellants ' case was made to the Special Judge by a notification mentioning the charge against him to be one under section 165A, Indian Penal Code.
The High Court also said: " It is true that if the offence under section 165A be regarded as a distinct offence, the Special Judge appointed under the W. B. Act had no jurisdiction in December 1952 to take cognizance of the offence and cognizance could be taken only by a Special Judge appointed under the provisions of the Central Act.
But since in such case the Special Judge must be deemed to have acted erroneously in good faith, the provisions of section 529(e) of the Criminal Procedure Code would apply and the proceedings would not be vitiated. .
It is trial without jurisdiction that vitiates a proceeding (section 530 Cr. P. C.) and not taking of cognizance in good faith without jurisdiction".
But that with respect, is an erroneous application of section 529 of the Code of Criminal Procedure which provides: 1286 " If any Magistrate not empowered by law to do any of the following things, namely: (e) to take cognizance of an offence under section 190,sub section (1), clause (a) or clause (b); erroneously in good faith does that thing, his proceedings shall not be set aside merely on ground of his not being so empowered.
" This section applies to Magistrates and would not apply to a Special Judge whose jurisdiction arises not on his taking cognizance under section 190 of the Code of Criminal Procedure, but on the case for an offence specified in the Schedule being distributed to him by the State Government by notification.
The defect of jurisdiction therefore cannot be cured by section 529(e) of the Code of Criminal Procedure.
The Special Judge war, consequently not a Court of competent jurisdiction and the proceedings before him were null and ineffectual.
We are of the opinion, therefore, that when the case was distributed to the Special Court which is the basis of the jurisdiction of that Court, section 165A was not one of the offences specified in the Schedule and consequently the appellant could not be tried for and convicted of that offence.
The conviction is therefore by a Court which had no jurisdiction to try the case against the appellant and the whole proceedings in this case are null and void.
We would accordingly allow the appeal and set aside the conviction of the appellant under section 165A, I. P. C., and the sentence imposed thereunder.
Appeal allowed.

summary:
On September 6, 1952, the appellant, who was being tried by an Assistant Sessions Judge and a jury, was caught while giving a bribe to one of the jurors.
By a notification dated November 27, 1952, the Government of West Bengal, acting under section 4(2) Of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, entrusted the case against the appellant under section 161/116 Indian Penal Code to the Special judge, Burdwan, for trial.
Before this date as a result of the introduction of section 165A in the Indian Penal Code by the Criminal Law Amendment Act, 1952, providing for punishment for abetment of offences under sections 161 and 165, abetment of section 161 had ceased to be an offence under section 161/116 though it was an offence specified in the Schedule to the West Bengal Act.
The records were received by the Special judge on December 23, 1952, and he took cognizance of the case.
On February 10, 1954, a charge under section 165 A Indian Penal Code was framed by the Special judge and on July 7, 1954, the appellant was convicted under section 165 A and sentenced to rigorous imprisonment for six months.
An appeal to the High Court of Calcutta was dismissed.
The appellant obtained special leave and appealed.
Held, that the special judge had no jurisdiction to try and convict the appellant for the offence under section 165A Indian Penal Code as when the case was distributed to the Special judge section 165A was not one of the offences specified in the Schedule of the West Bengal Act.
The case which was distributed to the Special judge was one under section 161/116 Indian Penal Code, an offence which was non existent at that time.
Section 165A cannot be deemed to have been specified in the Schedule merely because abetment of the offences under sections 161, 162 163 and 165 Indian Penal Code was specifically mentioned in the Schedule.
The offence under section 165A is a distinct offence.
It is not merely a restatement of the offence of abetment under section 116 ; it comprises also abetment under section 109 and provides for in enhanced penalty.
This defect of jurisdiction could not be cured by section 529(e) of the Code of Criminal Procedure.
Section 529(e) applied to 1277 Magistrates and would not apply to Special judges whose jurisdiction arose not on their taking cognizance under section 190 of the Code but on the case for offences specified in the Schedule being distributed to them by the State Government by a proper notification.


judgement:
Criminal Appeal No. 104 of 1990.
From the Judgment and Order dated 1.9.
1983 of the Punjab and Haryana High Court in Crl.
A. No. 199 DB/83.
B.S. Malik for the Appellants.
Mahabir Singh for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
The seven appellants before us were convicted by the learned Additional Sessions Judge, Sonepat on three counts and sentenced as under: (a) rigorous imprisonment for one year under Section 148, I.P.C.; (b) rigorous imprisonment for six months under Section 323/ 149, I.P.C.; and (c) imprisonment for life and a fine of Rs.200 under Section 302/149, I.P.C. All the said substantive sentences were directed to run concurrently.
514 The seven appellants preferred an appeal against the order of conviction and sentence passed by the learned Trial Judge.
The High Court while dismissing their appeal clari fied that their convictions were on six counts and altered the fine awarded under Section 302/149, I.P.C. from Rs.200 to Rs.5,000 in respect of each appellant per count, i.e. Rs.30,000 per appellant.
Being aggrieved by this enhancement of fine the appellants have preferred this appeal limited to the question of this enhancement only.
Section 374 of the Code of Criminal Procedure ( 'the Code ' hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court.
Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
Sub section 3 of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence.
Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, I.P.C. Section 378 provides for an appeal against an order of acquittal.
Section 386 enumerates the powers of the appellate court.
The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement.
Section 397 confers revisional powers on the High Court as well as the Sessions Court.
It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfy ing itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any inferior court.
Section 40 1 further provides that in the case of any pro ceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391 of the Code.
Sub section 2 of Section 401 provides that no order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by Pleader in his own defence.
Sub section 4 next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the 515 instance of the party who could have appealed.
It is clear from a conjoint reading of Section 377, 386, 397 and 401 that if the State Government is aggrieved about the inade quacy of the sentence it can prefer an appeal under Section 377(1) of the Code.
The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 40 1 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it.
Sub section 4 of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub section cannot stand in the way of the High Court exer cising revisional jurisdiction suo motu.
But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate.
The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the Trial Court.
Now, in the present case the appeal was filed under Section 374(2) of the Code by the convicts against the order passed by the Additional Sessions Judge.
No appeal was filed by the State under Section 377( 1) of the Code against the sentence awarded by the trial court for the offence under Section 302/149 I.P.C. on the ground of its inadequacy.
Nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 of the Code.
If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and heating the convicts on the question of inadequacy of sen tence.
Without following such procedure it was not open to the High Court in the appeal filed by the convicts to en hance the sentence by enhancing the fine.
The High Court clearly acted without jurisdiction.
For the above reasons we are clearly of the opinion that the appeal must succeed.
In the result we allow this appeal and set aside the order of the High court insofar as it enhances the sentence by enhancing the fine from Rs.200 to Rs.5,000 per count per appellant.
In other words we restore the order of sentence passed by the Trial Court under Section 302/149, I.P.C.
The additional fine, if paid, will be refunded.
N.P.V. Appeal al lowed.

summary:
The appellants were convicted by the Additional Sessions Judge on three counts and sentenced to various terms of imprisonment and a fine of Rs.200 under Sections 148, 323/149 and 302/149 I.P.C.
The appellants preferred an appeal against the order of conviction and sentence.
Dis missing the appeal, the High Court, clarified that their convictions were on six counts and altered the fine awarded under Section 302/149 I.P.C. from Rs.200 to Rs.5,000 in respect of each appellant per count, i.e. Rs.30,000 per appellant.
Hence the appellants preferred appeal, by special leave, in this Court, limited to the question of enhancement of fine only.
Allowing the appeal, and setting aside the order of High Court enhancing the fine, this Court, HELD: It is clear from a conjoint reading of Sections 377, 386, 397 and 401 of Code of Criminal Procedure, 1973, that if the State Government is aggrieved about the inade quacy of the sentence, it can prefer an appeal under Section 377(1) of the Code.
The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code, since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it.
But before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and given an opportunity of being heard on the question of sentence either in person or through his advo cate.
The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the Trial Court.
[515A D] 513 In the present case, the appeal was filed under Section 374(2) of the Code by the convicts against the order passed by the Additional Sessions Judge.
No appeal was filed by the State under Section 377(1) of the Code against the sentence awarded by the trial court for the offence under Section 302/149, I.P.C. on the ground of its inadequacy.
Nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 of the Code.
If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and hearing the convicts on the question of inadequacy of sentence.
Without following such procedure it was not open to the High Court in the appeal filed by the convicts to enhance the sentence by enhancing the fine.
The High Court clearly acted without jurisdiction.
[515D F]