judgement:
Petition for Special Leave to Appeal No. 5844 of 1980.
From the Judgment and Order dated 1 2 1979 of the Karnataka High Court in O.S.A. No. 5 of 1975.
Y. section Chitale and P. R. Ramases for the Petitioner.
NEMO for the Respondent.
The Order of the Court was delivered by BHAGWATI, J. We think that the view taken by the High Court is the correct view on the interpretation of sections 529 and 530 of the .
Section 529 provides that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to the provable debts as are in force to the time being under the law of insolvency with respect to the estate of persons adjudged insolvent.
This provision brings in the applicability of section 46 of the Provincial Insolvency Act which reads: "Where there have been mutual dealings between an insolvent and a creditor proving or claiming to prove a debt under this Act, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively.
" This rule enacted in section 46 of the Provincial Insolvency Act with regard to the debts provable by a creditor against the insolvent must, therefore, likewise apply in regard to debts provable against a company in winding up.
Consequently, when the respondent in the present case claimed to prove her debt against the company in liquidation, she was entitled to the benefit of the rule enacted in Section 46 of the Provincial Insolvency Act and she could legitimately claim that since there were admittedly mutual dealings between her and the company in liquidation, an account should be taken in respect of such mutual dealings and only that amount should be payable or receivable by her which is due at the foot of such account.
It is true that section 530 provides for preferential payments, but that provision cannot in any way detract from full effect being given to section 529 and in fact the only way in which these two sections can be reconciled is by reading them together so as to provide that whenever any creditor seeks to prove his debt against the company in liquidation, the rule enacted in Section 46 of the Provincial Insolvency Act 351 should apply and only that amount which is ultimately found due from him at the foot of the account in respect of mutual dealings should be recoverable from him and not that the amount due from him should be recovered fully while the amount due to him from the company in liquidation should rank in payment after the preferential claims provided under section 530.
We find that the same view has been taken by the English Courts on the interpretation of the corresponding provisions of the English Companies Act, 1948 and since our Companies Act is modelled largely on the English Companies Act 1948, we do not see any reason why we should take a different view, particularly when that view appears to be fair and just.
We may, point out that Gore Browne in his book on Company Law, 43rd Ed at page 34 14 also confirms this view: "Indeed, all claims provable in the winding up may be the subject of set off, provided that there is mutuality." Moreover, we find that the observations of the House of Lords in National Westminster Bank Ltd. vs Halesowen Presswork & Assemblies Ltd. are also to the same effect.
We may also usefully refer to the observations of Sir Ernest Pollock, M. R. in re.
City Life Assurance Co. Ltd. where the learned Master of the Rolls after referring to section 207 of the Companies Act, 1908 (section 317 of the Companies Act, 1948) which corresponds to section 529 of and section 31 of the Bankruptcy Act, 1914 which corresponds to section 46 of the Provincial Insolvency Act, says: "It is to be observed that section 31 of Bankruptcy Act, 1914, is definite in its terms that where there is a mutual credit, mutual debt or other mutual dealings, the sums are to be set off and the balance of the account and no more shall be claimed or paid on either side respectively.
It is not merely permissive, it is a direct statutory enactment that the balance only is to be claimed in bankruptcy.
" We are in agreement with these observations and affirm the view taken by the Karnataka High Court in the judgment sought to be appealed against.
We accordingly dismiss the special leave petition on merits after condoning the delay in filing it.
P.B.R. Petition dismissed.

summary/full:
The respondent claimed that since there were mutual dealings between her and the company in liquidation an account should be taken in respect of such mutual dealings and only that amount should be payable or receivable by her which is due at the foot of such account.
She claimed that she was entitled to the benefit of the rule enacted in section 46 of the Provincial Insolvency Act.
The High Court upheld her contention.
Dismissing the special leave petition by the Official Liquidator ^ HELD: (1) In view of the provisions of section 529 of the the rule enacted in section 46 of the Provincial Insolvency Act with regard to debts provable by a creditor against the insolvent must equally apply in regard to debts provable against a company in winding up.
[350 F] (2) Although section 530 provides for preferential payments, that provision cannot in any way detract from full effect being given to section 529 which enacts that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to provable debts as are in force for the time being under the law of insolvency with respect to the estate of persons adjudged insolvent.
The only way in which sections 529 and 530 can be reconciled is by reading them together so as to provide that whenever any creditor seeks to prove his debt against the company in liquidation, the rule enacted in section 46 of the Provincial Insolvency Act should apply and only that amount which is ultimately found due from him at the foot of the account in respect of mutual dealings should be recoverable from him and not that the amount due from him should be recovered fully while the amount due to him from the company in liquidation should rank in payment after the preferential claims provided under section 530.[350H] Gore Brown on Companies, 43rd Ed.
at page 34 14.
National Westminster Bank Ltd vs Halesowen Presswork and Assemblies Ltd. [1972]1 All E. R. 641 at 659 and Re City Life Assurance Co. Ltd. at 457 referred to.


judgement:
Appeal No. 224 of 1955.
665 Appeal by special leave from the judgment and order dated the 7th May 1954 of the Allahabad High Court in Civil Miscellaneous Writ No. 133 of 1952.
Naunit Lal for the appellant.
G. C. Mathur and C. P. Lal for respondents Nos.
I & 2. 1956.
September 20.
The Judgment of the Court was delivered by section K. DAS J.
This is an appeal by special leave from the judgment and order of the High Court of Judicature at Allahabad dated the 7th of May 1954 by which the High Court dismissed an application of the appellant for the issue of a writ of certiorari under the provisions of article 226 of the Constitution.
The appeal raises the question of the validity of the assessment of a tax on the appellant for the year 1950 51 by the Town Area Committee of Karbal under the provisions of clause (f) of sub section (1) of section 14 of the United Provinces Town Areas Act, 1914 (U. P. Act II of 1914), hereinafter referred to as the Act.
The appellant resides in the town of Mainpuri and carries on the business of plying a motor bus on hire.
The appellant 's bus plies on.
alternate days between Etawah and.
Mainpuri, and the town of Karhal falls on the route between Etawah and Mainpuri.
It is not now disputed that passengers travelling in the appellant 's bus used to get down or get in at a bus stand within the town area of Karhal; the appellant had a booking office situate within the Town Area and tickets were issued to passengers and an account of the business was maintained in the said booking office.
The Town Area Committee of Karhal imposed a tax of Rs. 25 on the appellant for the year 1950 51 under the provisions of clause (f) of sub section (1) of section 14 of the Act, being a tax on 'circumstances and property ' and assessing the income of the appellant from his business within the 86 666 Town Area of Karhal at a sum of Rs. 800 for the year.
The appellant preferred an appeal against the assessment of the tax under section 18 of the Act, and the grounds taken by the appellant were (1) that he did not reside within the limits of the Town Area and (2) that he did not carry on any trade or business within that Area.
By his order dated the 20th October 1951 ' the Appeal Officer held that the appellant carried on his trade or business within the limits of the Town Area and was therefore rightly assessed to tax under clause (f) of sub section (1) of section 14 of the Act.
He accordingly dismissed the appeal.
It may be stated here that the appellant was asked to submit an account of his income, but no such account was submitted and the assessing officer worked out the income of the appellant at about Rs. 67 a month, that is, about Rs. 800 a year.
No question about the amount of the tax has been raised before us, and it is not necessary to say anything further with regard to the quantum of assessment.
The appellant then filed a writ application in the High Court of Judicature at Allahabad and the ground taken by him was that there could be no assessment under clause (f) of sub section (1) of section 14 of the Act, because he resided outside the jurisdiction of the Town Area.
The learned Judge, who dealt with the.
application of the appellant, took the view that the tax imposed on the appellant could clearly be imposed under clause (d) of sub section (1) of section 14 of the Act; therefore it was unnecessary to consider whether the tax could be legally imposed under clause (f) of sub section (1) of section 14.
The learned Judge also expressed the view that residence within the Town Area was not a pre requisite condition for the imposition of the tax under clause (d), and it was enough if the appellant carried on a trade or business within the Town Area.
On these views, the learned Judge dismissed the writ application.
The main point which has been urged before us by 667 learned counsel for the appellant is that the assessment of a tax under clause (f) of sub section (1) of section 14 on the appellant was.
not valid, because residence within the Town Area was a necessary condition for the assessment of a tax under clause (f).
Learned counsel also argued before us that the.
assessing authority having assessed a tax on the appellant under clause (f), it was not open to the High Court to say that the tax was legally valid under a 'different clause, namely clause (d) of sub section (1) of section 14.
With regard to his second point, learned counsel has drawn our attention to sections 15 to 17 of the Act.
He has pointed out that under section 15 of the Act a list of persons liable to pay the tax imposed under section 14 and of the amounts to be paid respectively by such persons, has to be prepared; the list may be revised by the District Magistrate and has to be submitted to him for confirmation.
When so confirmed.
, the list can only be altered under sub section (2) of section 15 by the District Magistrate or in pursuance of an order passed in appeal under the provisions of section 18.
We think that learned counsel has rightly submitted that, so far as the present appellant is concerned, the list prepared under section 15 must have shown him as assessed to a certain amount of tax under clause (f) of sub section (1) of section 14 and the assessment must have been confirmed on that basis by the District Magistrate.
Therefore, the legality of the tax imposed on the appellant must be considered with reference to the clause under which the assessment was actually made, and a different clause under which the assessment might have fallen cannot be called in aid of the assessment.
We proceed therefore to consider the legality of the tax imposed on the appellant with reference to clause (f) of sub section (1) of section 14 of the Act.
The short point for consideration in that context is whether residence within the Town Area is a necessary condition for the imposition of the tax under clause 668 (f).
It is necessary to read here section 14 of the Act so far as it is relevant to the point in question.
"14 (1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a Committee may impose are the following: (d) A tax on trades, callings or professions not exceeding such rates as may be prescribed.
(f) A tax on persons assessed according to their circumstances and property not exceeding such rate and subject to such limitations and restrictions as may be prescribed: , Provided that such a person is not already assessed under clauses (a) to (e) above".
It will be noticed that the power of the Town Area Committee to impose a tax under clause (f) is subject to, ' first, 'any general rules or special orders of the State Government in this behalf ' and, secondly, to (such limitations and restrictions as may be prescribed '.
These restrictions and limitations are to be found in the Rules made by the State Government under section 39(2) of the Act, which are called Rules regarding the Limitations, Restrictions and Rate sub ject to which the Circumstances and Property Tax shall be levied by the Town Area Committee.
These rules were notified by Notification No. 681 T/IX 79T 50 dated July 20, 1950.
Two of the rules are important for our purpose, viz., rules 2 and 3.
They are in these terms: "2.
The tax shall be assessed on every person on whom it is imposed, in two separate parts, namely (1) on his circumstances and (2) on the property, if any, owned by him, and the aggregate of the sums so determined on both the counts shall constitute the total composite amount payable by him as circumstances and property tax: Provided that nothing shall render it irregular 669 to assess a person on only one ' of the two 'counts aforementioned if he does not fulfil the conditions for liability in respect of that count on which he is not assessed.
(1) The tax assessed on the circumstances of an assessee may be imposed on any person residing or carrying on business within the limits of the town area: Provided that such person has so resided or carried on business for a total period of at least six months in the year of assessment.
(2) No tax shall be imposed on any person whose total taxable income is less than Rs. 200 per annum.
(3) The rate of the tax shall not exceed one anna in a. rupee on total taxable income.
(4) The total amount of tax assessed on any person shall not, in any year, exceed a sum of section 250.
Explanation. (1) For purposes of this rule 'taxable income ' means gross income accruing within the limits of the town area.
(ii) The words 'carrying on business ' mean the carrying on of any trade, profession, calling or other practice or activity which yields or is capable of yielding income but do not include service under Government or a local body".
The important point which emerges out of these Rules is that under Rule 3 the tax assessed on the circumstances of an assessee may be imposed on any person residing or carrying on business within the limits of the town area; in other words, two, conditions in the alternative are laid down in Rule 3, either the person must reside within the limits of the town area or he must be carrying on business within the limits of the said area.
There is a third condition that the residence or carrying on of business must be for a total period of at least six months in the year of assessment.
No question regarding the third condition has been raised in this case and it is not necessary to consider that condition here.
Therefore, it is 670 clear that if Rule 3 is valid, then the imposition of the tax on the appellant under clause (f) is also valid, because on the finding not now in dispute the appellant carried on a trade or business within the limits of the Town Area of Karhal.
It has been argued before us that Rule 3 is invalid because, under clause (f) of sub section (1) of section 14, residence within the Town Area of the person to be taxed under that clause is a necessary condition.
We are unable to accept this argument.
Clause (f) of sub section (1) of section 14 does not say in express terms that residence within the Town Area is a necessary condition for the imposition of the tax.
The Rules make it quite clear that for each of the clauses of sub section (1) of section 14 there is a 'nexus ' between the territorial jurisdiction of the Town Area Committee and the imposition of the tax.
So far as clause (d) is concerned, the 'nexus ' is that the trade, calling or profession must be carried on within the limits of the Town Area.
So far as clause (f) is concerned, Rule 3 makes it quite clear that the 'nexus ' is either resi dence within the limits of the Town Area or carrying on business within the same limits.
It is to be remembered that clause (f) was inserted by an Amending Act, namely, the Uttar Pradesh Town Areas (Validation and Amendment) Act, 1950.
Section 1(2) of the Amending Act gave retrospective effect to the amendments.
The proviso to clause (f) makes it quite clear that a person who is already assessed under clauses (a) to (e) cannot be assessed again under clause (f).
The proviso is intended to avoid multiple taxation, but it is manifest from the proviso that ,there may be overlapping of the different clauses in sub section (1) of section 14; for example, a person may come under clause (d) as well as clause (f) if he carries on a trade within the limits of the Town Area.
Therefore, the proviso was necessary to prevent the same person being taxed more than once under the different clauses of sub section (1) of section 14.
If residence within the limits of the Town Area were a 671 sine qua non for the imposition of a tax under clause (f), no question of overlapping between clauses (d) and (f) would arise unless the person to be taxed resided as well as carried on a trade within the limits of the Town Area.
If the argument of learned counsel for the appellant is correct, then the proviso to clause (f) is meaningless in so far as it envisages an overlapping between clause (d) and clause (f) in other cases.
On a proper construction of clause (f), read with the limitations and restrictions embodied in the Rules made under section 39 of the Act, it cannot be held that residence within the Town Area of Karbal was a necessary condition for the imposition of the tax on the appellant.
A reference, was made to sub.;section (4) of section 15 A of the Act.
Section 15 A provides for preliminary proposals for the imposition of taxes under section 14, publication of such proposals and the submission of draft rules.
Sub section (4) states: "(4) Any, inhabitant of the Town Area may, in the prescribed manner, file an objection in writing on such proposals and the committee shall take into consideration the objections so filed and finally settle its proposals." Under sub section (4) any inhabitant of the Town Area may file an objection to the preliminary proposals for the imposition of taxes under section 14.
The argument before us was that if an inhabitant of the Town Area alone was entitled to file an objection to preliminary proposals for taxation, then in all the, clauses of sub section (1) of section 14 residence within the Town Area must be read as a necessary condition for the imposition of the taxes under section 14.
This contention appears to us to be unsound.
Firstly, the objection as, to preliminary proposals for taxation is not the same thing as objection to an assessment, and it may well be that the legislature in their wisdom thought fit to confine the filing of objections to preliminary proposals for taxation to the inhabitants of the Town Area.
Secondly, there are several other 672 sections of the Act, such as section 20 and section 21, which show that the imposition of a tax on persons not resident within the Town Area.
but having some other nexus within that Area, was permissible.
Thirdly, the question of the validity of sub section (4) of section 15 A does not arise in this case.
The appellant was assessed to a tax and he had a right to file an appeal which right he exercised.
No grievance was made of the failure to exercise the right under subsection (4) of section 15 A.
It is therefore un necessary for us to make any pronounce ment on the validity or otherwise of sub section (4) of section 15 A All that is necessary for us to state is that by reason of sub section (4) of section 15 A, it cannot be held that residence within the Town Area is a necessary condition for the imposition of a tax in all the clauses of sub section (1) of section 14 of the Act.
Learned counsel for the appellant referred us to two decisions of 'the Allahabad High Court: District Board, Farrukhabad vs Prag Dutt(1) and District Board, Dehra Dun vs Damodar Dutt(2).
The second decision, which was earlier in point of time, arose out of a suit for recovery of 'circumstances and property tax under the U. P. District Boards Act (Local Act X of 1922).
The question there was whether the District Board of Dehra Dun could impose a tax on the defendants who were not residents within the area of the District Board.
It is worthy of note that under section 114 of the U. P. District Boards Act, the power of a Board to impose a tax on circumstances and 'property is subject to the condition that the tax may be imposed on any person residing or carrying on business in the rural area within the District Board.
The only question in that Allahabad case was whether the defendants resided within the rural area of the District Board so as to make them liable for the. tax.
The finding Was that they did not reside within the rural area and therefore the imposition of (1) A.I.R. 1948 All. 382.
(2) I.L.R. [1944] All.
673 the tax was illegal, and section 131 of the U. P. District Boards Act did not bar the suit.
This decision does not help the appellant.
If it shows anything, it shows that it was open to the District Board to impose a circumstances and property ' tax on any person residing or carrying on business in the rural area.
In the 1948 Allahabad decision, the main question was whether the provisions of section 2, Professions Tax Limitation Act (20 of 1941) affected the powers conferred upon the District Board by section 108 of the U.P. District Boards Act to levy a tax on circumstances and property '.
A subsidiary question was also raised, whether section 131 of the U. P. District Boards Act barred the suit.
With regard to the main question, it was pointed out that the name given to a tax did not matter; what had to be considered was the pith and substance of it.
It was held that in pith and substance the tax was one which attracted the provisions of section 2, Professions Tax Limitation Act (20 of 1941).
A tax on 'circumstances and property ' is a composite tax and the word 'circumstances '.
means a man 's financial position, his status as a whole depending, among other things, on his income from trade or business.
From militating against the principle that in considering the circumstances of a person his income from trade or business within the Town Area may be taken into consideration, the decision approves of the principle.
In the course of his judgment, Bind Basni Prasad J. referred to section 128, U.P. Municipalities Act, 1916, where 'taxes on circumstances and property ' appear as a head distinct from the 'taxes on trades, callings and vocations and employments ' and the argument was that the taxes being under different heads should be treated as being entirely different, one from the other It was rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act.
The meanings of words and expressions used in an Act must take their colour from the context in which 87 674 they appear.
It is true that in the Act under our consideration the taxes which the Town Area Committee may impose appear under different heads in Sub section (1) of section 14.
We have already stated that though the clauses are different, the words used in the section show that there may be overlapping between the different clauses, and to prevent the same person being subjected to multiple taxation, a 'proviso was incorporated in clause (f).
In view of the words and expressions used in section 14 of the Act, we cannot accept the argument that clause (f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely residence within the Town Area, must be read as a necessary part of clause (f).
To do so will be to read in clause (f) words which do not occur there.
The limitations for the imposition of a tax under clause (f) are given in Rule 3 and 'residence 'is only one of the alternative conditions for the imposition of the tax not a line qua non as is contended by learned counsel for the appellant.
In the result, we hold that the assessment of the tax on the appellant under clause (f) of subjection (1) of section 14 of the Act was legally valid.
The appeal fails and is dismissed with costs.

dataset_name: IN-Abs

summary/full:
The appellant was carrying on business, but was not residing within the Town Area of Karhal.
The Town Area Committee imposed a tax of Rs. 25 on him under clause (f) of a. 14(1) of the U.P. Town Areas Act, 1914, being a tax on 'circumstances and property '.
The appellant filed a writ application in the High Court on the ground that there could be no assessment under clause (f) because he resided outside the jurisdiction of the Town Are& Committee.
The High Court dismissed the application taking the view that it was unnecessary to consider whether the tax could be legally imposed under clause (f) as the tax imposed could clearly be justified under clause (d) of section 14(1) which authorised the imposition of a tax on trades, callings or professions.
Held, that residence was not a sine qua non for the imposition of the tax under clause (f), that the carrying on of 'business within the Town Area was a sufficient nexus for the imposition of the tax under clause (f) and that the assessment of the tax on the appellant under clause (f) was legally valid.
The legality of the tax imposed must be considered with ref erence to the clause under which the assessment was actually made and a different clause under which the assessment might have fallen cannot be called in aid of the assessment.
Rule 3 of the 'Rules regarding the Limitations, Restrictions and Rate subject to which the Circumstances and Property Tax shall be levied by the Town Area Committees ' framed under section 39(2) of the Act does not go beyond section 14(1)(f) and is not invalid.


judgement:
Civil Appeal No. 2150 of 1970.
Appeal by Special Leave from the Judgment and Order dated 27 7 1980 of the Punjab and Haryana High Court in R.S. No. 737/70 Harbans Singh for the Appellant.
Hardayal Hardy and B. Datta, for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against the judgment dated July 27, 1970 of the High Court of Punjab and Haryana affirming the decrees passed by the trial court and the first appellate court in a suit for possession by way of pre emption of the land in dispute in favour of plaintiff respondent No. 1 on the ground that he was a tenant of the disputed land when it was sold to the appellants by respondents Nos. 2 to 4 through a registered sale deed dated September 29, 1967.
406 2.
The suit was resisted by the appellants with the counter claim that they, and not respondent No. 1, were in possession of the land on the relevant date as tenants inasmuch as it had been leased out to them by their vendor Kanti Prasad two years prior to the sale, i.e., in the year 1965.
The decrees passed by the courts below proceed on the basis of evidence to the effect that the name of respondent No. 1 was recorded as a tenant in the Jamabandi for the year 1959 60 (exhibit P. 1) and consistently thereafter till the year 1968 (Khasragirdawaris Exs.
P. 2 to P. 7).
Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.
Learned counsel for the appellants relies upon three documents in support of his contention that the Khasra girdawaris should not be believed.
First in point of time is an application (exhibit A31) which was sent to the concerned Deputy Commissioner through the military authorities by one of the appellants who was an army hand.
That application is dated December 11, 1967 and states that the land in dispute was taken by him on lease from Kanti Prasad in the year 1965 and prays that the Khasra girdawari should be corrected accordingly.
The second is the sale deed itself in which appears a recital to the effect that on the date of the sale the vendors had been in possession of the land covered by it for the preceding two years.
The third is the plaint itself which seeks "possession by way of pre emption".
None of these documents is of any help to the case of the appellants.
The recital in the plaint is easily explained.
It is no more than the usual prayer made in suits for preemption and may well be interpreted to mean that possession be granted to the plaintiff by the decree in his capacity of a pre emptor (and not that of a mere tenant).
It cannot be implied therefrom that the plaintiff was out of actual possession.
In fact the case made out in the plaint was specifically founded on the plea that the plaintiff had been in possession of the land in dispute as a tenant right upto the date of the institution of the suit.
Paragraph 4 of the plaint reads: "4.
The plaintiff has been continuously cultivating the aforesaid land mentioned in para No. 1 of the plaint, for a long time as non occupancy tenant and I, the plaintiff, have been cultivating the same even uptil now.
The Vendees are outsiders, therefore, I, the plaintiff have the preferential right of pre emption.
" This plea clearly negatives the contention based on the recital contained in the prayer clause of the plaint.
407 The averments appearing in the sale deed and application exhibit A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors.
Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made.
Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject matter of an entry in the relevant records at any time before the sale deed was registered.
No suspicion can attach to the entries in the jamabandi for the year 1959 60, nor have the contents of that document been assailed before us.
A presumption of truth attaches to those entries in view of the provisions of section 44 of the Punjab Land Revenue Act.
That presumption is no doubt rebuttable but no attempt has been made to displace it.
Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts.
It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.
Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material.
The decree passed in favour of respondent No. 1 is not challenged on any other ground.
The appeal is accordingly dismissed with costs.
All mesne profits deposited by respondent No. 1 in the courts below shall be paid back to him forthwith.
V.D.K Appeal dismissed.

summary/full:
Dismissing the defendant 's appeal and affirming the decree in favour of the plaintiffs, the Court. ^ HELD: A presumption of truth attaches to the entries in the Jamabandi for the year 1959 60 showing the defendant respondents as a tenant, in view of the provisions of Section 44 of the Punjab Land Revenue Act.
That presumption is no doubt rebuttable, but, in the instant case, no attempt has been made to displace it.
[407C D] Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in Section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts.
It may, therefore, be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.
[407D E]


judgement:
Civil Appeal No. 34 of 1980.
From the Judgment and Order dated 7 11 1979 of the Madras High Court in Writ Petition No. 2886/76.
Soli J. Sorabjee, D.N. Gupta and H. K. Dutt for the Appellant.
R. K. Garg and V. J. Francis for the Respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal on certificate, from the judgment of the Madras High Court raises a question of some complexity.
The ques 304 tion is, whether an employer is statutorily bound to pay wages if the workmen are on strike, for any of the national or festival holidays falling within the period of strike, under s.3 read with sub s.(1) of s.5 of the Tamil Nadu Industrial Establishments (National and Festival Holidays) Act, 1958 (hereinafter to referred to as `the Act ').
The facts of the case are not in dispute.
Messrs Madura Coats Limited are an industrial establishment within the meaning of s.2(e) of the Act, owning textile mills at Madurai, Ambasamudram and Tuticorin in the State of Tamil Nadu.
The cotton textile industry had been declared to be a public utility service for purposes of the .
In respect of claim for bonus for the year 1974 75 a settlement was entered into which stood superseded by the Payment of Bonus Ordinance, 1975.
The management accordingly took the view that no bonus was payable for the year in question, since its payment would be against the provisions of the Act, as amended by the Ordinance.
This resulted in a strike by the workmen of the concerned mills.
The workmen were on strike from January 21, 1976 to February 5, 1976.
The strike was called off by the workmen on February 6, 1976 due to the intervention of the Commissioner of Labour, Madras, who brought about a settlement.
The proceedings of the Commissioner of Labour dated February 5, 1976 show that the parties, i.e., the management and the workmen, had agreed to abide by his decision in the matter.
The terms of the settlement were, inter alia, that the strike was to be called off forthwith and the workmen would commence work on February 6, 1976, that the management 's proposal 10 make a penal cut of eight days ' wages of the workmen for going on an illegal strike would be waived and that there would be no wages payable for the period of the strike.
In accordance therewith, the workmen resumed work on February 6, 1976 and the management paid them wages for the month of January, 1976 after excluding there from the wages payable for the period of strike during January, namely, for the period from January 21 to 31, 1976.
The management having withheld the wages payable for January 26, 1976, the Inspector of Factories, Ist Circle, Madurai addressed a communication dated May 22, 1976 stating that in view of s.5 of the Act, payment of wages for January 26, 1976 had to be made.
The management challenged the order by a writ petition but the High Court declined to interfere.
It held that the appellant was bound to pay to the workmen wages for January 26, 1976, having regard to the provisions contained in s.3 and sub s.(1) of s.5 of the Act, even though the workmen were on strike on that day.
The correctness of that decision is in question.
305 It is urged firstly that in view of the term `wages ' in s.2(g) of the Act, no wages were payable to the workmen for January 26, 1976, in terms of the contract of employment since they were not available for work and thereby the management were deprived of the right given to them under sub s.(2) of s.5 of the Act, to call upon the workmen to come and do the work and secondly, the right of the workmen to receive wages for the national or festival holidays under s.3 of the Act, is subject to the right of the management under sub s.(2) of s.5 to call upon them to come and work on such holidays.
It is said that when a person creates a situation by going on a strike whereby he is not available for work, the terms of employment cannot be fulfilled and, therefore, a fortiori no wages are payable.
It is suggested that the right of the workmen to wages is not dependent on their status as such, but on the fulfilment of the contract of employment.
It would be convenient in the first instance to set out the relevant provisions of the Act.
In the Act the term `wages ' as defined in s.2(g), insofar as relevant, is in these terms: "2(g) "Wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment or of the work done by him in such employment. ".
Section 3 of the Act provides as follows: "3.
Grant of National and Festival holidays Every employee shall be allowed in each calendar year a holiday of one whole day on the 26th January, the first May, the 15th August and the 2nd October and five 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.
" Sub sections (1) and (2) of s.5 of the Act provide: "5.
Wages (1) Notwithstanding any contract to the contrary, every employee shall be paid wages for each of the holidays allowed to him under section 3.
(2)(a) Notwithstanding anything contained in section 3, any employee.
may be required by the employer to work on 306 any holiday allowed under that section if the employer has, not less than twenty four hours before such holiday, (i) served in the prescribed manner on the employee a notice in writing requiring him to work as aforesaid; and (ii) send to the Inspector having jurisdiction over the area in which the industrial establishment is situated and displayed in the premises of the industrial establishment a copy of such notice.
(b) Where an employee works on any holiday allowed under section 3, he shall, at his option, be entitled to (i) twice the wages; or (ii) wages for such day and to avail himself of a substituted holiday with wages on one of the three days immediately before or after the day on which he so works.
" The legislation is intended to provide for national and festival holidays in industrial establishments in the State.
Section 3 of the Act provides that every employee in an industrial establishment shall be entitled to four national and five festival holidays in each calendar year.
Sub section (1) of s.5 provides that `notwithstanding any contract to the contrary ' every employee shall be paid wages for each of the holidays allowed to him under s.3.
The matter is thus taken out of the realm of contract.
There is a statutory obligation cast on the employer and a corresponding benefit conferred on the employees.
The word `allowed ' in sub section
(1) of s.5 means holidays allowed under s.3.
In other words, the employer has no option in the matter.
There can be no contracting out of the liability to pay wages for such holidays.
It will be noticed that both sub sections
(1) and (2) of s.5 contain non obstante clauses.
While the non obstante clause in sub s.(1) of s.5 gives to the workmen the right to claim wages for such holidays `notwithstanding any contract to the contrary ', the non obstante clause in sub section
(2) of s.5 subordinates the right of the workmen to claim wages for the national or festival holidays `notwithstanding anything contained in s.3 '.
Sub sections (1) and (2) of s.5 have been enacted with separate and distinct objects and they operate on different planes.
Sub section (2) of s.5 confers upon the employer the right to call 307 upon the workmen to come and work on such holidays on the fulfilment of the conditions set out therein.
As a matter of construction, the non obstante clause contained in sub section
(2) of s.5 has an overriding effect over s.3.
The right of the workmen to claim wages under sub section
(1) of s.5 for any of the national and festival holidays under s.3 is, therefore, co extensive with the right of the management under sub s.(2) of s.5 to call upon the workmen to come and work on such holidays subject to the compliance with the conditions laid down therein.
On the construction of sub s.(2) of s.5 of the Act and its impact on s.3 and sub s.(1) of s.5 of the Act, there is a conflict of opinion in the High Court.
In Vasudevan, R.M.S. Union vs Lotus Mills Ltd. Koshal J. in dealing with a case where the workers of a textile mill went on a strike, and in between there were two paid holidays, held that wages for the holidays in question were payable despite the strike since sub s.(1) of s.5 was absolute and unconditional and gave to the employees the right to stay away from work.
He was of the view that s.3 and sub s.(1) of s.5 operate independently without reference to sub s.(2) of s.5 and as such, even if the management had no opportunity to call upon the workmen to come and work on national and festival holidays as provided for in sub s.(2) of s.5, they were bound to declare such national and festival holidays under s.3 and pay wages for these holidays to the workmen as provided by sub s.(1) of s.5.
In substance, Koshal J. was of the view that the legislature never intended to give to sub s.(2) of s.5 an overriding effect so as to make the fulfilment of the terms of contract of employment and of the work done a condition prerequisite for the payment of wages for the national or festival holidays.
When the matter came before Natarajan J., he expressed his doubts about the correctness of the view taken in Lotus Mills case.
In his view the benefit conferred on the workmen under s.3 and sub s.(1) of s.5 cannot be taken to be independent of sub s.(2) of s.5 which confers a special right on the management to call upon the workmen to come and work on national and festival holidays declared under s.3, and so long as that right of the management could not be exercised as the workmen were on strike on these days, the benefits cannot be enforced by the workmen.
He, accordingly, referred the case to a Division Bench for a reconsideration of the decision in Lotus Mills case.
The Division Bench (Ramanujam and Padmanabhan JJ.), however, disagreed with him and preferred to 308 follow the view taken by Koshal J. expressed in Lotus Mills case.
The question is which of the two views is in accord with the provisions of the Act.
Ramanujan J., speaking for the Division Bench, while accepting that 'sub s.(2) of s.5 conferred a special right on the management, which is somewhat inconsistent with s.3 and sub s.(1) of s.5, comments that 'these provisions confer two benefits on the employees, viz., (1) not to work on a holiday, and (2) to get wages from the management for such holiday ', and observes: "If the right conferred on the management under section 5(2) is intended to override the right given to the employees under section 3 and 5(1), the legislature would have specially said so by giving an overriding effect to section 5(2).
But so long as section 5(2) does not specifically override section 3 and 5(1), it is not possible for us to say that sections 3 and 5(1) are subject to section 5(2).
The right conferred on the management under section 5(2) and the right conferred on employees under sections 3 and 5(1) should be taken to be independent of each other." (Emphasis supplied) This observation virtually renders sub s.(2) of s.5 a mere superfluity.
Furthermore, the assumption that the Act confers the right not to work on a holiday ' appears to be unwarranted.
The ultimate conclusion of the High Court was that the contract of service continues even during the period of strike and, therefore, though in the instant case the employees were on strike, they still continued to enjoy the benefits of the Act and must be paid their wages for 26th January, 1976 even though they were on strike.
In our judgment, the construction placed by the High Court on sub s.(2) of s.5 of the Act cannot be accepted.
It is apparently wrong in observing that 'if the legislature intended such a result, the language used would have been different '.
That precisely is the effect of the non obstante clause in sub s.(2) of s.5 which clearly has an overriding effect over s.3.
Under the scheme of the Act, the workmen are entitled to wages for the national and festival holidays under s.3 read with sub section
(1) of s.5, but this right of theirs ' is subject to the right of the management given under sub s.(2) of s.5, to call upon the workmen to come and work on such holidays.
Any other construction would make the provisions contained in sub section
(2) of s.5 wholly nugatory.
309 It would depend on the facts and circumstances of each case whether or not wages become payable in the context of strike.
It is true that where a strike is neither illegal being not in contravention or any statutory provision, nor unjustified having been lodged as a protest against the unreasonable attitude of the management, there is no reason to deprive the workmen of their wages.
It must, nevertheless, be observed that workmen cannot resort to strike with impunity for any kind of demand without first exhausting reasonable avenues for possible achievement of their object.
In the present case, the affidavit of the Inspector of Factories, First Circle, Madurai shows that the dispute between the management and their workmen as to payment of bonus for the year 1974 75 had been referred to the Special Industrial Tribunal Madras which gave a decision in favour of the workmen.
That has a bearing on the claim for bonus but has no relevance to the question in controversy.
It appears that the workmen went on a strike without serving a notice under section 22 of the .
That being so, the strike resorted to by the workmen was wholly unjustified if not illegal.
When the workmen themselves brought about a situation by going on a strike, they cannot be permitted to claim wages under sub s.(1) of s.5 of the Act, since the management were deprived of their right under sub s.(2) of s.5 of the Act.
In Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd. the night shift operatives of a textile mills stopped work from about 4 p.m. upto about 8 p.m. on a certain day, the apparent cause of the strike being that the management had expressed their inability to comply with the request of the workers to declare the forenoon of that day as a holiday for solar eclipse.
The stoppage of work was the result of a concerted action and fell within the definition of a 'strike ' in s.2(q) of the .
The strike was an illegal strike as the textile mills was a public utility industry and no notice had been given to the management, even though the refusal to work continued only for a few hours.
It was held that the continuity of service of the workers was interrupted by the illegal strike and, therefore, they were not entitled to claim holidays with pay under section 49 B(1) of the Factories Act, 1934.
In Management of Chandramalai Estate, Ernakulam vs Its Workmen the workmen made certain demands and the matter was referred for conciliation.
After conciliation efforts failed the workmen struck work.
The question was whether the workmen were entitled to 310 paid holidays for the period of strike.
It was held, on the facts of the case, that the strike was unjustified and the workmen were not entitled to any wages for the period.
The question ultimately is one of fact.
The liability of the management to pay wages for the national and festival holidays under s.3, read with sub s.(1) of s.5 of the Act, is subject to their right under sub s.(2) of s.5 of the Act to call upon the workmen to come and work on such holidays.
That depends upon whether or not the strike was illegal or unjustified.
In the result, the appeal succeeds and is allowed.
The judgment of the High Court is reversed.
The writ petition filed by the appellant is allowed and the impugned notice issued by the Inspector of Factories is quashed.
We wish to mention that the appellant has undertaken to pay wages to the workmen for 26th January, 1976 irrespective of the result of the appeal.
There shall be no order as to costs.
N.V.K. Appeal allowed.

summary/full:
The Tamil Nadu Industrial Establishment (National and Festival Holidays) Act, 1958 was a legislation intended to provide for national and festival holidays in industrial establishments in the State of Tamil Nadu.
Section 3 of the Act provides that every employee in an industrial establishment shall be entitled to four national and five festival holidays in each calender year.
Sub section (1) of section 5 provides that `notwithstanding any contract to the contrary every employee shall be paid wages for each of the holidays allowed to him under section 3.
Sub section (2) of section 5 confers upon the employer the right to call upon the workmen to come and work on such holidays on the fulfilment of the conditions set out therein The appellant was an industrial establishment owning textile mills in the State of Tamil Nadu.
In respect of a claim for bonus for the year 1974 75 there was a dispute between the management and its workmen.
This resulted in a strike by the workmen, from January 21, 1976 to February 5, 1976 which was called off by the workmen on February 6, 1976.
The management paid the workmen wages for the month of January 1976 after excluding therefrom the wages payable for the period of strike during January namely January 21 to January 31, 1976.
The Management having withheld the wages payable for January 26, 1976 the first respondent addressed a communication stating that in view of section 5 of the Act payment of wages for January 26, 1976 had to be made.
The management challenged the order by a Writ Petition in the High Court.
The High Court held that having regard to the provisions contained in sections and sub section (I) of section 5 of the Act, the appellant was bound to pay the workmen wages for January 26, 1976 even though the workmen were on strike on that date and dismissed the Writ Petition Allowing the appeal to this Court ^ HELD: (1) The liability of the Management to pay wages for the national and festival holidays under section 3 read with sub section (1) of section 5 of the Act is subject to the rights under sub section (2) of section 5 of the Act to call upon the workmen to come and work on such holidays.
303 (2) The construction placed by the High Court on sub Section (2) of section 5 of the Act cannot be accepted.
Under the scheme of the Act the workmen are entitled to wages for the national and festival holidays under section 3 read with sub section (I) of section 5, but this right of theirs ' is subject to the right of management given under sub section (2) of section 5 to call upon the workmen to come and work on such holidays.
Any other construction would make the provision contained in sub section (2) of section 5 wholly nugatory.
[308H; 309A] (3) Both sub sections (1) and (2) of section 5 contain non obstante clauses.
While the non obstante clause in sub section (I) of section 5 gives to the workmen the right to claim wages for the national or festival holidays `notwithstanding any contract to the contrary ' the non obstante clause in sub section (2) of section 5 subordinates the right of the workmen to claim wages for the national or festival holidays `notwithstanding anything contained in section 3.
sub sections (1) and (2) of section 5 have been enacted with separate and distinct objects and they operate on different planes.
[306H; 307A] Vasudevan, R.M.S. Union vs Lotus Mills Ltd. [1977] II LLJ 483 overruled.
(4) It would depend on the facts and circumstances of each case whether or not wages become payable in the context of strike.
When a Strike is neither illegal being not in contravention of any statutory provision, nor unjustified having been lodged as a protest against the unreasonable attitude of the management, there is no reason to deprive the workmen of their wages.
[309B] Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd. ; and Management of Chandramalai Estate, Ernakulam vs Its Workmen ; referred to.
In the instant case the workmen went on strike without serving a notice under section 22 of the Industrial Dispute Act 1947.
That being so the strike resorted to by the workmen was wholly unjustified if not illegal.
When the workmen themselves brought about a situation by going on a strike they cannot be permitted to claim wages under sub section (1) of section 5 of the Act since the management were deprived of their right under sub section (2) of section 5 of the Act.
[309E]


judgement:
ition No. 5670 of 1980.
(Under Article 32 of the Constitution) Mrs. K. Hingorani and Miss Rekha Tiwari for the Petitioner.
K. G. Bhagat and D. Goburdhan for the Respondent.
The Order of the Court was delivered by BHAGWATI, J. This case has now come before us after service of notice on the State of Bihar.
When this case was taken up for hearing by us on 2nd December, 1980, we expressed our displeasure that the State of Bihar had not chosen to appear in answer to the notice, but this expression of displeasure was made by us on the assumption that the notice was served on the State of Bihar.
We are however informed by Mr. K. G. Bhagat, learned advocate, appearing on behalf of the State of Bihar that the notice of the writ petition was served upon the State only on 6th December, 1980 and that is the reason why it was not possible for the State to appear before us on 2nd December, 1980.
We accept this explanation offered by Mr. K. G. Bhagat and exonerate the State of Bihar from remissness in appearing before the Court on 2nd December, 1980.
The State has filed before us a counter affidavit sworn by Tarkeshwar Parshad, Under Secretary, Home (Police) Department of the State Government giving various particulars required by us by our order dated 2nd December, 1980.
We have also before us the counter affidavit filed by Jitendra Narain Singh, Assistant Jailer, Bhagalpur Central Jail, on behalf of the State and this affidavit gives certain other particulars required by us.
The State has also in addition to these particulars, filed statements giving various particulars in regard to the blinded prisoners drawn from the records of the judicial magistrates dealing with their cases.
The District and Sessions Judge has also addressed a letter to the Registrar (Judicial) of this Court stating that for the reasons given in his letter, no inspection of the Bhagalpur Central Jail has been carried out by the District and Sessions Judge in the year 1980.
The Registrar (Judicial) has also furnished to us copies of the statements of the blinded prisoners 410 and B. L. Das, former Superintendent of the Bhagalpur Central Jail, recorded by him pursuant to the order of this Court dated 1st December, 1980.
Full and detailed arguments have been advanced before us on the basis of the particulars contained in these documents, but we do not, at this stage, propose to deal with the arguments in regard to each of the blinded prisoners and we shall examine only the broad contentions advanced before us, leaving the arguments in regard to each specific blinded prisoner to be dealt with at a later stage when the writ petition again comes up for hearing.
Before we deal with the main contentions urged before us on behalf of the parties, we must dispose of one serious question which raises a rather difficult problem and which has to be resolved with some immediacy.
The problem is not so much a legal problem as a human one and it arises because the blinded prisoners who are under going treatment in the Rajendra Prashad Ophthalmic Institute, New Delhi are likely to be discharged from that Institute since their vision is so totally impaired that it is not possible to restore it by any medical or surgical treatment, and the question is wherever they can go.
Mrs. Hingorani, on behalf of the blinded prisoners, expressed the apprehension that it may not be safe for them to go back to Bhagalpur, particularly when investigation into the offences of blinding was still in progress and some arrangement should, therefore, be made for housing them in New Delhi at the cost of the State.
We cannot definitely state that the apprehension expressed by Mrs. Hingorani is totally unfounded nor can we say at the present stage that it is justified, but we feel that at least until the next date of hearing, it would be desirable not to send the blinded prisoners back to Bhagalpur.
We would, therefore, suggest that the blinded prisoners who are discharged from the Rajendra Parshad Ophthalmic Institute, New Delhi should be kept in the Home which is being run by the Blind Relief Association of Delhi on the Lal Bahadur Shastri Marg, New Delhi and the State of Bihar should bear the cost of their boarding and lodging in that Home.
We hope and trust and, in fact, we would strongly recommend that the Blind Relief Association of Delhi will accept these blinded prisoners in the Home run by them and look after them until the next hearing of the petition.
The State of Bihar will pay by way of advance or otherwise as may be required the costs, charges and expenses of maintaining the blinded prisoners in such Home The other question raised by Mrs. Hingorani on behalf of the blinded prisoners was whether the State was liable to pay compensation to the blinded prisoners for violation of their Fundamental Right 411 under Article 21 of the Constitution.
She contended that the blinded prisoners were deprived of their eye sight by the Police Officers who were Government servant acting on behalf of the State and since this constituted a violation of the constitutional right under Article 21, the State was liable to pay compensation to the blinded prisoners.
The liability to compensate a person deprived of his life or personal liberty otherwise than in accordance with procedure established by law was, according to Mrs. Hingorani, implicit in Article 21.
Mr. K. G. Bhagat on behalf of the State, however, contended that it was not yet established that the blinding of the prisoners was done by the Police and that the investigation was in progress and he further urged that even if blinding was done by the police and there was violation of the constitutional right enshrined in Article 21, the State could not be held liable to pay compensation to the persons wronged.
These rival arguments raised a question of great constitutional importance as to what relief can a court give for violation of the constitutional right guaranteed in Article 21.
The court can certainly injunct the State from depriving a person of his life or personal liberty except in accordance with procedure established by law, but if life or personal liberty is violated otherwise than in accordance with such procedure, is the court helpless to grant relief to the person who has suffered such deprivation ? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious Fundamental Right to life and personal liberty.
These were the issues raised before us on the contention of Mrs. Hingorani, and to our mind, they are issues of the gravest constitutional importance involving as they do, the exploration of a new dimension of the right to life and personal liberty.
We, therefore, intimated to the counsel appearing on behalf of the parties that we would hear detailed arguments on these issues at the next hearing of the writ petition and proceed to lay down the correct implications of the constitutional right in Article 21 in the light of the dynamic constitutional jurisprudence which we are evolving in this Court.
That takes us to one other important issue which arises in this case.
It is clear from the particulars supplied by the State from the records of the various judicial magistrates dealing with the blinded prisoners from time to time that, neither at the time when the blinded prisoners were produced for the first time before the judicial magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners.
The records of the judicial magistrates show that no legal representation was provided to the blinded prisoners, because none of them asked 412 for it nor did the judicial magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost.
The only excuse for not providing legal representation to the blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it.
The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail.
It is difficult to understand how this state of affairs could be permitted to continue despite the decision of this Court in Hussainara Khatonn 's case.
This Court has pointed out in Hussainara Khatoon 's case (supra) which was decided as far back as 9th March, 1979 that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.
It is unfortunate that though this Court declared the right to legal aid as a Fundamental Right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence.
We regret this disregard of the decision of the highest court in the land by many of the States despite the constitutional declaration in Article 141 that the law declared by this Court shall be binding through out the territory of India.
Mr. K. G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficulty to do so owing to financial constraints.
We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability.
The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigenous and whatever is necessary for his purpose has to be done by the State.
The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court in Rhem vs Malcolm.
"The law does not permit 413 any Government to deprive its citizens of constitutional rights on a plea of poverty" and to quote the words of Justice Blackmum in Jackson vs Bishop, "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations.
" Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate.
It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody.
That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage.
We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.
But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right.
It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law.
There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy.
It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services.
Legal aid would become merely a paper promise and it would fail of its purpose.
The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.
Unfortunately, the judicial magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided.
We would, therefore, direct the magistrates and Session Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State.
Unless he is not willing to take advantage every 414 other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation.
The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation.
There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.
There are two other irregularities appearing from the record to which we think it is necessary to refer.
In the first place in a few cases the accused persons do not appear to have been produced before the Judicial Magistrates within 24 hours of their arrest as required by article 22 of the Constitution.
We do not wish to express any definite opinion in regard to this irregularity which prima facie appears to have occurred in a few cases, but we would strongly urge upon the State and its police authorities to see that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed.
It is also clear from the particulars furnished to us from the records of the Judicial Magistrates that in some cases particularly those relating to Patel Sahu, Raman Bind, Shaligram Singh and a few others the accused persons were not produced before the Judicial Magistrates subsequent to their first production and they continued to remain in jail without any remand orders being passed by the Judicial Magistrates.
This was plainly contrary to law.
It is difficult to understand how the State continued to detain these accused persons in jail without any remand orders.
We hope and trust that the State, Government will inquire as to why this irregularity was allowed to be perpetrated and will see to it that in future no such violations of the law are permitted to be committed by the administrators of the law.
The provision inhibiting detention without remand is a very healthy provision which enables the Magistrates to keep check over the police investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police.
We also cannot help expressing our unhappiness at the lack of concern shown by the judicial magistrates in not enquiring from the blinded prisoners, when they were first produced before the judicial magistrates and thereafter from time to time for the purpose of remand, 415 as to how they had received injuries in the eyes.
It is true that most of the blinded prisoners have said in their statements before the Registrar that they were not actually produced before the judicial magistrates at any time, but we cannot, without further inquiry in that behalf, accept the ex parte statement of the blinded prisoners.
Their statements may be true or may not be true; it is a matter which may require investigation.
But one thing is clear that in the case of almost all the blinded prisoners, the forwarding report sent by the Police Officer In Charge stated that the accused had sustained injuries and yet the judicial magistrates did not care to enquire as to how injuries had been caused.
This can give rise only to two inferences; either the blinded prisoners were not physically produced before the judicial magistrates and the judicial magistrates mechanically signed the orders of remand or they did not bother to enquire even if they found that the prisoners before them had received injuries in the eyes.
It is also regrettable that no inspection of the Central Jail, Bhagalpur was carried out by the District & Sessions Judge at any time during the year 1980.
We would request the High Court to look into these matters closely and ensure that such remissness on the part of the judicial officers does not occur in the future.
We would also like to advert to one more matter before we close and that is rather a serious matter.
It appears from the record that one blinded prisoner by the name of Umesh Yadav sent a petition to the District and Sessions Judge, Bhagalpur, on 30th July, 1980 complaining that he had been blinded by Shri B. K. Sharma, District Superintendent of Police and since he had no money to prosecute this police officer, he should be provided a lawyer at Government expense so that he might be able to bring the police atrocities before the court and seek justice.
Ten other blinded prisoners also made a similar petition and all these petitions were forwarded to the District & Sessions Judge on 30th July, 1980.
The District & Sessions Judge by his letter dated 5th August, 1980, addressed to the Superintendent of the Bhagalpur Central Jail stated that there was no provision in the Code of Criminal Procedure under which legal assistance could be provided to the blinded prisoners who had made a petition to him and that he had forwarded their petitions to the chief judicial magistrate for necessary action.
The Chief Judicial Magistrate also expressed his inability to do anything in the matter.
It appears that the Superintendent of the Bhagalpur Central Jail also sent the petitions of these blinded prisoners to the Inspector General of Prisons, Patna on 30th July, 1980 with a request that this matter should be brought to the notice of the State Government.
The Inspector General of Prisons, forwarded these petitions to the Home Department.
The Inspector 416 General of Prisons was also informed by three blinded prisoners on 9th September 1980 when he visited the Banka Jail that they had been blinded by the police and the Inspector General of Prisons observed in his inspection note that it would be necessary to place the matter before the Government so that the police atrocities may be stopped.
The facts disclose a very disturbing state of affairs.
In the first place we find it difficult to appreciate why the Chief Judicial Magistrate to whom the petitions of these blinded prisoners had been.
forwarded by the District & Sessions Judge did not act upon the complaint contained in these petitions and either take cognizance of the offence revealed in these petitions or order investigation by the higher police officers.
The information appearing in these petitions disclosed very serious offences alleged to have been committed by the Police and the Chief Judicial Magistrate should not have nonchalantly ignored these petitions and expressed his inability to do anything in the matter.
But apart from that, one thing is certain that within a few days after 30th July 80 the Home Department did come to know from the Inspector General of Prisons that according to the blinded prisoners who had sent their petitions, they had been blinded by the Police, and from the inspection note of the Inspector General of Police it would seem reasonable to assume that he must have brought the matter to the notice of the Government.
We should like to know from the Inspector General of Prisons as to who was the individual or which was the department of the State Government to whose notice he brought this matter and what steps did the State Government take on receipt of the petitions of the blinded prisoners forwarded by the Inspector General of Prisons as also on the matter being brought to their attention by the Inspector General of Prisons as observed by him in his inspection note.
We should like the State Government to inform us clearly and precisely as to what steps they took after 30th July, 1980 to bring the guilty to book and to stop recurrence of such atrocities.
We want to have this information because we should like to satisfy ourselves whether the blindings which took place in October 1980 could have been prevented by the State Government by taking appropriate steps on receipt of information in regard to the complaint of the blinded prisoners from the Inspector General of Prisons.
We would direct the State Government to furnish us full and detailed particulars in this behalf before the next hearing of the writ petition.
The writ petition will now be taken up for further hearing on 6th January, 1981.
S.R. Petition adjourned.

summary/full:
Expressing displeasure over disregard of the decision of the Supreme Court by the State of Bihar, the Court ^ HELD: (1) The right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it is implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.
The State should provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State.
It cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative liability.
[412C D, F G] Hussainara Khatoon v State of Bihar [1979] 3 S.C.R. 532, reiterated.
Rhem vs Malcolm, ; Jackson vs Bishop , quoted with approval.
(2) The State is under a constitutional obligation to provide free legal services not only at the stage of trial but also at the stage when the accused is first produced before the magistrate as also when he is remanded from time to time.
[413C D] (3) But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right.
It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services.
Legal aid would become merely a paper promise and it would fail of its purpose.
The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.
Unless he is not willing to take advantage, every other State in the country should make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation.
The only qualification would be that the offence charged against the accused is such that on conviction it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation.
There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.
[413D, E F, H, 414A B] 409 (4) The State and its police authorities should see to it that the constitutional, and legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest is scrupulously observed.
[414C D] (5) The provision inhibiting detention without remand is a very healthy provision which enables the magistrates to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found to be disobeyed come down heavily upon the police.[414F G]


judgement:
Civil Appeal No. 1572 of 1970.
From the Judgment and Order dated 8 11 1968 of the Bombay High Court in S.C.A. No. 2087/68.
M. C. Bhandare, C. K. Sucharita and M. N. Shroff for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by KOSHAL J.
, This is an appeal by special leave against the judgment dated November 8, 1968 of a Division Bench of the High Court of Bombay allowing a petition under articles 226 and 227 of the Constitution of India and declaring that sub section
(5) of section 17 of the Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as the Act) is ultra vires of article 14 of the Constitution of India.
The facts are not in dispute and may be shortly stated.
The respondent hails from Uttar Pradesh.
In 1940 he obtained the degree of "Ayurved Shastri" from the All India Adarsh Vidwat Parishad, Kanpur.
On November 12, 1940 his name was listed by the Board of Indian Medicine, Uttar Pradesh, in the register of Vaids and Hakims.
He practised as a Vaid in Agra thereafter upto 1955 when he migrated to Bhopal where he was registered as an Ayurvedic Doctor by the Medical Council of the Government of Bhopal under the Bhopal Medical Practitioners Registration Act, 1935.
He migrated to Bombay in 1962 and started practising there as an Ayurvedic Doctor.
However, in the meantime, i.e., on November 23, 1961, the Act came into force, except for Chapter VI thereof which came into operation on November 1, 1966.
The respondent 's application for registration as a medical practitioner made to the Committee of the Medical Board of Unani System of Medicine under sub section
(5) of section 17 of the Act (although none of the clauses of that sub section had anything to do with it) was rejected and his appeal filed to the Board was also dismissed on September 30, 1964.
Clause (ii) of the said sub section
(5) with which we are concerned provides that any person not being a person qualified for registration under sub sections
(3) or (4) who proves to the satisfaction of the Committee appointed under sub section
(6) "that he was on the 4th day of November 1941 regularly practising the Ayurvedic or the Unani System of Medicine in the Bombay area of the State, but his name was not entered in the register maintained under the Bombay Medical 400 Practitioners Act, 1938" shall be entitled to have his name entered in the register on making an application on the prescribed form, on payment of a fee of Rs. 10/ and production of such documents as may be prescribed by the rules.
The expression "Bombay area of the State of Maharashtra" is defined in sub section
(6) of section 3 of the Bombay General Clauses Act to mean "the area of the State of Maharashtra excluding the Vidarbha region and the Hyderabad area of that State." A contention was raised before the High Court on the strength of Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioners Act, 1961 that sub section
(5) of section 17 of the Act fell foul of article 14 of the Constitution, and that contention was accepted.
We may usefully refer to the following observations made in the decision just above cited: "Confining our attention, however, to medical practitioners practising in the Bombay area of the State, we find it difficult to appreciate why the right of enlistment should have been restricted to those who were regularly practising on 4th November 1951, `in the Bombay area of the State '.
Since the object of the Legislature was to allow medical practice by those less qualified persons who were too old to choose alternative means of livelihood, it was clearly open to the Legislature to provide that a person must have been practising for a certain number of years, or from before a particular date, in order that his name may be included in the list.
It was thus open to the Legislature to provide that, out of unregistered and unlisted medical practitioners who were practising in the Bombay area of the State, only those would be entitled to have their names included in the list who were practising regularly from before the 4th of November, 1951.
It is, however, not possible to find any rational basis for the provision that medical practitioners in the Bombay area of the State, in order to be entitled to enlistment, must not only have been practising regularly from 4th November, 1951, but must have been practising on that day `in the Bombay area of the State '.
The provision that medical practitioners must have been practising on 4th November, 1951 in the Bombay area of the State has no rational nexus with the object of the Legislature which was to ensure that medical practitioners, who were not fully qualified but who were too old to choose alternative means of livelihood, should not be deprived of their practice.
401 In order to illustrate the discriminatory nature of the provision contained in section 18(2)(b)(ii), we shall take imaginary instances of five persons who were all practising in the Bombay area of the State at the time of their applications under section 18 (i.e., on or before 31st March, 1965) and who were not already enlisted and were not entitled to registration under the Act.
Let us suppose that one of them, A, was practising continuously in Bombay City from 1950 to 1963, when he applied under section 18 of the Act.
Since on 4th November, 1951 he was practising regularly 'in the Bombay area of the State ', he is clearly entitled to have his name included in the list.
Let us take another person B who practised in Poona from 1950 to 1954 and in Bombay City from 1954 to 1963 when he applied under section 18.
He is also entitled to enlistment because Poona falls in the Bombay area of the State.
We may then take the instance of C who practised in Nagpur from 1950 to 1954 and in Bombay City from 1954 to 1963.
He would not be entitled to have his name included in the list, because on 4th November, 1951 he was regularly practising in Nagpur which, though situated in Maharashtra, is not included in the Bombay area of the State.
We will next take the instance of D who practised in Baroda, then a part of the Bombay State, from 1950 to 1954 and thereafter in Bombay City from 1954 to 1963.
He is also not entitled to enlistment, since Baroda in out side the State of Maharashtra.
Similar would be the position of another person E who practised in Bhopal from 1950 to 1954 and then in Bombay City from 1954 to 1963.
No rational explanation can be given of why A and B should receive the said concession from the Legislature and should be able to continue their practice and why C, D and E should not receive the concession and should be deprived of their practice.
" We find ourselves in complete agreement with these observations which were made in relation to sub clause (ii) of clause (b) of sub section
(2) of section 18 of the Act.
The provisions of that sub clause being in pari materia with sub section
(5) of section 17 of the Act, they apply fully to that sub section which must therefor be held to be violative of article 14 of the Constitution.
Accordingly we have no hesitation in upholding the impugned judgment and dismiss this appeal, but with no order as to costs as the respondent has not appeared before us to contest it.
N.V.K. Appeal dismissed.

summary/full:
The Maharashtra Medical Practitioners Act 1961, contains provisions for registration and enlistment of medical practitioners.
Clause (ii) of sub section (5) of section 17 of the Act provides that any person not being a person qualified for registration under sub sections (3) or (4) who proves to the satisfaction of the Committee appointed under sub section (6), "that he was on the 4th day of November 1941 regularly practising the Ayurvedic or the Unani System of Medicine in the Bombay area of the State, but his name was not entered in the register maintained under the Bombay Medical Practitioners Act, 1938" shall be entitled to have his name entered in the register on making an application and on payment of the prescribed fee.
The respondent whose name was listed by the Board of Indian Medicine, Uttar Pradesh in the register of Vaids and Hakims practised as a Vaid and as an Ayurvedic Doctor in Agra and Bhopal respectively.
He migrated to Bombay in 1962 where he started practice as an Ayurvedic Doctor.
He applied for registration as a medical practitioner to the Committee of the Medical Board of Unani system of Medicine under sub section (5) of section 17 of the Act.
His application was rejected, and his appeal filed to the Board was also dismissed.
The High Court, however, allowed the respondent 's writ petition, relying on its earlier decision in Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioner Act, 1961 (1969) 71 Bom.
L.R. 71 (77), held section 17(5) of the Act as unconstitutional and set aside the orders passed by the Board.
Dismissing the appeal to this Court, ^ HELD: 1.
In Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioners Act, 1961 the validity of section 18(2)(b)(ii) fell for consideration and was rightly held to be unconstitutional as it offends the provisions of Article 14.
It was observed in that case that the provision, by restricting the right of enlistment to those medical practitioners 'who have been regularly practising on 4th November, 1951 in the Bombay area of the State ' had no rational nexus with the object of the Legislature which was to allow medical practice by those less qualified persons who were too old to choose alternative means of livelihood, and that while it was clearly open to the Legislature to provide that a person must have been practising for a certain number of years, or from before a particular date, in order that his name may be included in the list, no distinction on the basis of the area in which he had been practising could be made.
[400C H] 399 2.
The provisions of section 18(2)(b)(ii) being in pari materia with subsection (5) of section 17, the observations made in the above case apply also to this sub section.
This sub section is, therefore, violative of Article 14 of the Constitution.
[401G]