judgement:
N: Criminal Appeal No. 242 of 1971.
Appeal by Special Leave from the Judgment and Order dated 21 4 1971 of the Rajasthan High Court at Jodhpur in D. B. Criminal Appeal No. 343 of 1969.
Harbans Singh for the Appellant.
section M. Jain for Respondent.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal of Maina Singh arises out of the judgment of the Rajasthan High Court dated April 21, 1971 upholding the trial court 's judgment convicting him of an offence under section 302 read with section 34 I.P.C. for causing the death of Amar Singh and of an offence under section 326 I.P.C. for causing grievous injuries to Amar Singh 's son Ajeet Singh (P.W. 2), and sentencing him to imprisonment for life for the offence of murder and to rigorous imprisonment for three years and a fine of Rs. 100/ for the other offence.
The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran Singh used to live in 'chak ' No. 77 GB, in Ganganagar district of Rajasthan while Narain Singh used to live in another 'chak '.
It was alleged that the relations between Amar Singh and Maina Singh were strained, as Maina Singh suspected that Amar Singh was giving information about his smuggling activities.
Amar Singh was having some construction work done in his house and had engaged Isar Ram (P.W. 3) as a mason.
On June 29, 1967, at about sun set, the deceased Amar Singh, his son Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) went to the 'diggi ' in 'murabba ' 35 for bath.
Ajeet Singh took his bath, and was changing his clothes and Isar Ram was nearby.
Amar Singh was cleaning his 'lota ' after attending the call of nature.
It is alleged that at that time Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran Singh came to the 'diggi ' along with Narain Singh.
Maina Singh was armed with a. 12 bore gun, Puran Singh with a 'takua ' and the other three with 'gandasis '.
Maina Singh fired at Amar Singh, but could not hit him.
The gun shots however hit Ajeet Singh (P.W. 2) on his legs and he jumped into a dry water course which was nearby to take cover.
Maina Singh fired again, but without success.
Amar Singh ran towards the sugarcane field crying for help but was chased by the accused.
Ajeet Singh thereupon ran towards 'chak ' No. 78 GB and ultimately went and lodged a report at Police Station Anoopgarh at 10 p.m. after covering a distance of about six miles.
The five accused however followed Amar Singh.
Maina Singh fired his gun at Amar Singh and he fell down.
The other accused went near him and gave 'gandasi ' blows, and Maina Singh gave a blow or two with the butt end of his gun which broke and the broken pieces fell down.
Amar Singh succumbed to his injuries on the spot, and the accused ran away.
On the report of Ajeet Singh about the incident which took place by the time he left for the police station, the police registered a case 653 for an offence under section 307 read with section 149 I.P.C. and started investigation.
The body of Amar Singh was sent for post mortem examination.
The report exhibit P. 9 of Dr. Shanker Lal (P.W. 5) is on the record.
The injuries of Ajeet Singh (P.W. 2) were also examined by Dr. Shanker Lal and his report in that connection is exhibit P.10.
It was found that there were several gun shot injuries, incised wounds and lacerated wounds on the body of the deceased, and there were as many as 12 gun shot wounds on the person of Ajeet Singh (P.W. 2).
All the five accused were found absconding and could be taken into custody after proceedings were started against them under sections 87 and 88 Cr. P. C. Maina Singh held a licence for gun exhibit 23 and led to its recovery during the course of the investigation vide memorandum exhibit P. 43.
At that time, its butt was found to be missing.
Its broken pieces had however been recovered by the investigating officer earlier, along with the empty cartridges.
The prosecution examined Ajeet Singh (P.W. 2), Isar Ram (P.W. 3) and Smt.
Jangir Kaur (P.W. 7) the wife of the deceased as eye witnesses of the incident.
The accused denied the allegation of the prosecution altogether, but Maina Singh admitted that the gun belonged to him and he held a licence for it.
The Sessions Judge disbelieved the evidence of Smt.
Jangir Kaur (P.W. 7) mainly for the reason that her name had not been mentioned in the first information report.
He took the view that the statements of Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) were inconsistent regarding the part played by Hardeep Singh, Jeet Singh, Narain Singh and Puran Singh accused, and although he held that one or more of the accused persons, besides Maina Singh, might be responsible for causing injuries to the deceased, along with Maina Singh, he held further that it could not be ascertained which one of the accused was with him.
He also took the view that "some one else might have been with him" and he therefore gave the benefit of doubt to accused Hardeep Singh, Jeet Singh, Puran Singh and Narain Singh and acquitted them.
As the statements of Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) were found to be consistent against appellant Maina Singh, and as there was circumstantial evidence in the shape of the recovery of empty cartridges near the dead body, and gun exhibit 23.
as well as the medical evidence, and the fact that the accused had absconded, the learned Sessions Judge convicted and sentenced him as aforesaid.
An appeal was preferred by the State against the acquittal of the remaining four accused; and Maina Singh also filed an appeal against his conviction.
The High Court dismissed both the appeals and maintained the conviction and sentence of Maina Singh as aforesaid.
Mr. Harbans Singh appearing on behalf of appellant Maina Singh has not been able to challenge the evidence on which appellant Maina Singh has been convicted, but he has raised the substantial argument that he could not have been convicted of the offence of murder under section 302 read with section 34 I.P.C. when the four co accused had been acquitted and the Sessions Judge had found that it was not possible to record a conviction under section 302 read with section 149 I.P.C. or section 148 I.P.C.
It has been argued that when the other four accused were given 654 the benefit of doubt and were acquitted, it could not be held, in law, that they formed an unlawful assembly or that any offence was committed by appellant Maina Singh in prosecution of the common object of that assembly.
It has been argued further that, a fortiori, it was not permissible for the Court of Sessions or the High Court to take the view that a criminal act was done by appellant Maina Singh in furtherance of the common intention of the "other accused" when those accused had been named to be no other than Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh who had all been acquitted.
It has therefore been argued that all that was permissible for the High Court was to convict appellant Maina Singh of any offence which he might have committed in his individual capacity, without reference to the participation of any other person in the crime.
On the other hand, it has been argued by Mr. section M. Jain that as the learned Sessions Judge had acquitted the remaining four accused by giving them the benefit of doubt, and had recorded the finding that one or more of the accused persons or some other person might have participated in the crime along with Maina Singh, the High Court was quite justified in upholding the conviction of the appellant Maina Singh of an offence under section 302/34 I.P.C.
The relevant portion of the judgment of the trial court, which bears on the controversy and has been extracted with approval in the impugned judgment of the High Court, is as follows, "The injuries found on the person of the deceased Amar Singh were with fire arm, blunt as well as sharp weapon.
fire arm injuries and the blunt weapon injuries have been assigned to Maina Singh and so there must have been other person also along with Maina Singh in causing injuries to the deceased.
It can be so inferred from the statements of Isar Ram and Ajeet Singh also.
These facts could no doubt create a strong suspicion that one or more of the accused persons might be responsible along with Maina Singh in causing injuries to the deceased.
In view of the statement of Isar Ram and Ajeet Singh it cannot however be ascertained which one of the accused was with Maina Singh and it was also possible that some one else might have been with him.
In such a case the prosecution version against these four accused persons are not proved beyond doubt.
They are therefore not guilty of the offence with which they have been charged.
" It would thus appear that the view which has found favour with the High Court is that as there were injuries with fire arm and with blunt and sharp edged weapons, and as the fire arm and the blunt weapon injuries had been ascribed to Maina Singh, there must have been one other person with him in causing the injuries to the deceased.
At the same time, it has been held further that these facts could only create a strong suspicion "that one or more of the accused persons might be responsible along with Maina Singh in causing the injuries to the deceased", but it could not be ascertained which one of the accused was with him and that it was also possible that "some one else might have been with him.
" The finding therefore is that the other person 655 might have been one of the other accused or some one else, and not that the other associate in the crime was a person other than the accused.
Thus the finding is not categorical and does not exclude the possibility of infliction of the injuries in furtherance of the common intention of one of the acquitted accused and the appellant.
Another significant fact which bears on the argument of Mr. Harbans Singh is that while in the original charge sheet the Sessions Judge specifically named appellant Maina Singh and the other accused Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the common object of that assembly, he altered that charge but retained, at the same time, the charge that Maina Singh formed an unlawful assembly along with the "other accused" with the common object of murdering Amar Singh and intentionally caused injuries to him along with the "other accused" in prosecution of that common object.
In this case therefore Maina Singh and the other four accused were alleged, all along, to have participated in the crime and were named in the charge sheet as the perpetrators of the crime without there being an allegation that some other person (besides the accused) took part in it in any manner whatsoever.
It was in fact the case from the very beginning, including the first information report, that the offence was committed by all the five named accused, and even the evidence of the prosecution was confined to them all through and to no other person.
The question is whether the High Court was right in upholding the conviction of the appellant with reference to section 34 I.P.C. in these circumstances ? Such a question came up for consideration in this Court on earlier occasions, and we shall refer to some of those decisions in order to appreciate the argument of Mr. Jain that the decision in Dharam Pal vs The State of U.P. expresses the latest view of this Court and would justify the appellant 's conviction by invoking section 34 I.P.C.
We may start by making a reference to The King vs Plummer which, as we shall show, has been cited with approval by this Court in some of its decisions.
That was a case where there was a trial of an indictment charging three persons jointly with conspiring together.
One of them pleaded guilty, and a judgment was passed against him, and the other two were acquitted.
It was alleged that the judgment passed against the one who pleaded guilty was bad and could not stand.
Lord Justice Wright held that there was much authority to the effect that if there was acquittal of the only alleged co conspirators, no judgment could have been passed on the appellant, if he had not pleaded guilty, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement between the appellant and the others and none between them and him.
In taking that view he made a reference to Harrison vs Errison where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a "void verdict".
Bruce J., who was the other judge in the case made a reference to the following 656 statement in Chitty 's Criminal Law while agreeing with the view taken by Wright J., "And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him.
" This Court approved Plummer 's case (supra) in its decision in Topandas vs The State of Bombay.
That was a case where four named individuals were charged with having committed an offence under section 120 B I.P.C. and three out of those four were acquitted.
This Court held that the remaining accused could not be convicted of the offence as his alleged co participators had been acquitted, for that would be clearly illegal.
A similar point came up for consideration in Mohan Singh vs State of Punjab.
There two of the five persons who were tried together were acquitted while two were convicted under section 302 read with section 149 and section 147 I.P.C.
In the charge those five accused persons and none others were mentioned as forming the unlawful assembly and the evidence led in the case was confined to them.
The proved facts showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by common intention of fatally assaulting the deceased.
While examining the question of their liability, it was observed as follows, "Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly.
In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then section 149 cannot be invoked.
Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named.
In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named.
In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five.
" 657 In taking this view this Court took note of its earlier decisions in Dalip Singh vs State of Punjab, Bharwad Mena Dana vs State of Bombay and Kartar Singh vs State of Punjab.
The other case to which we may make a reference is Krishna Govind Patil vs State of Maharashtra.
It noticed and upheld the earlier decision in Mohan Singh 's case (supra) and after referring to the portion which we have extracted, it was held as follows, "It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged.
But such a conclusion is really based on evidence.
" It would thus appear that even if, in a given case, the charge discloses only the named persons as co accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.
The decision in Krishna Govind Patil 's case (supra) was followed by the decision in Ram Bilas Singh vs State of Bihar.
After noticing and approving the view taken in Plummer 's case (supra) and the decisions in Mohan Singh 's case (supra) and Krishna Govind Patil 's case (supra) this Court stated the law once again as follows, "The decisions of this Court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and no others, and there is no question of any participation by other persons not identified or identifiable it is not open to the court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof.
Where, however, the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not be identified, it would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of section 149 I.P.C. provided it comes to 658 the conclusion that five or more persons participated in the incident.
" The other decision to which our attention has been invited is Yeswant vs State of Maharashtra.
The decision in Krishna Govind Patil (supra) was cited there on behalf of the appellant and, while referring to the view expressed there, it was observed that in the case before the court there was evidence that the man who used the axe on Sukal was a man who looked like appellant Brahmanand Tiwari, and could be that accused himself.
But as the Court was not satisfied that the identify of the person who used the axe on Sukal was satisfactorily established as that of Brahmanand Tiwari, it took the view that the remaining accused could be convicted with the aid of section 34 for the offences committed by them.
This Court did not therefore disagree with the view taken in Krishna Govind Patil 's case (supra) but purported to follow it in its decision and took the aforesaid view in regard to the identity of Brahmanand Tiwari for the purpose of distinguishing it from the case of Krishna Govind Patil (supra) where there was not a single observation in the judgment to indicate that persons other than the named accused participated in the offence and there was no evidence also in that regard.
The matter once again came up for consideration in Sukh Ram vs State of U.P.
The Court referred to its earlier decisions including those in Mohan Singh 's case (supra) and Krishna Govind Patil 's case (supra) and, while distinguishing them on facts, it observed that as the prosecution did not put forward a case of the commission of crime by one known person and one or two unknown persons as in Sukh Ram 's case (supra), and there was no evidence to the effect that the named accused had committed the crime with one or more other persons, the acquittal of the other two accused raised no bar to the conviction of the appellant under section 302 read with section 34 I. P. C.
The decision in Sukh Ram 's case (supra) cannot therefore be said to lay down a contrary view for it has upheld the view taken in the earlier decisions of this Court.
That leaves the case of Dharam Pal vs State of U.P. (supra) for consideration.
In that case four accused were tried with fourteen others for rioting.
The trial court gave benefit of doubt to eleven of them and acquitted them.
The remaining seven were convicted for the offence under section 302/149 I.P.C. and other offences.
The High Court gave benefit of doubt to four of them, and held that at least four of the accused participated in the crime because of their admission and the injuries.
On appeal this Court found that the attacking party could not conceivably have been of less than five because that was the number of the other party; and it was in that connection that it held that there was no doubt about the number of the participants being not less than five.
It was also held that as eighteen accused participated in the crime, and the Court gave the benefit of doubt to be on the side of safety, as a matter of abundant caution, reducing the number to less than five, it may not be difficult to reach the conclusion, having regard to undeniable facts, that the number of the 659 participants could not be less than five.
That was therefore a case which was decided on its own facts but, even so, it was observed as follows. "It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of participation is confined to five known persons and there is no doubt about the identity of even one.
" It cannot therefore be said that the decision in Dharam Pal 's case (supra) is any different from the earlier decisions of this Court, or that it goes to support the view which has been taken by the High Court in the case before us.
The view which has prevailed with this Court all along will therefore apply to the case before us.
As has been stated, the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with the other named four co accused, and with no other person.
The trial in fact went on that basis throughout.
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person.
So when the other four co accused have been given the benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant Maina Singh in causing the injuries to the deceased.
It was as such not permissible to invoke section 149 or section 34 I. P. C. Maina Singh would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.
The High Court has held that there could be no room for doubt that the fire arm and the blunt weapon injuries which were found on the person of Amar Singh were caused by appellant Maina Singh, and that finding has not been challenged before us by Mr. Harbans Singh.
Dr. Shanker Lal (P. W. 5) who performed the post mortem examination stated that while all those injuries were collectively sufficient in the ordinary course of nature to cause death, he could not say whether any of them was individually sufficient to cause death in the ordinary course of nature.
It is not therefore possible to hold that the death of Amar Singh was caused by the gun shot or the blunt weapon injuries which were inflicted by appellant Maina Singh.
Dr. Shanker Lal has stated that the fracture of the frontal bone of the deceased could have been caused by external injuries Nos. 8, 10 and 12, and that he could die of that injury also but, of those three injuries injury No. 12 was inflicted by a sharp edged weapon and could not possibly be imputed to the appellant.
The evidence on record therefore does not go to show that he was responsible for any such injury as could have resulted in Amar Singh 's death.
The evidence however proves that he inflicted gun shot injuries on the deceased, and Dr. Shankar Lal has stated that one of those injuries (injury No. 26) was grievous.
Maina Singh was therefore guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting, and was guilty of an offence under section 326 I. P. C.
In the circumstances of the case, we think it proper to sentence him to rigorous 660 imprisonment for 10 years for that offence.
As has been stated, he has been held guilty of a similar offence for the injuries inflicted on Ajeet Singh (P. W. 2) and his conviction and sentence for that other offence under section 326 I. P. C. has not been challenged before us.
The appeal is therefore allowed to the extent that the conviction of Maina Singh under section 302/34 I. P. C. is altered to one under section 326 I. P. C. and the sentence is reduced to rigorous imprisonment for ten years thereunder.
The conviction under section 326 for causing injuries to Ajeet Singh, and the sentence of rigorous imprisonment for three years and a fine of Rs. 100/ call for no interference and are confirmed.
Both the sentences will run concurrently.
P.B.R. Appeal allowed.

summary/full:
The appellant and four others were charged with offences under sections 302/149 I.P.C., the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp edged weapon.
The trial court acquitted the four accused but convicted the appellant under section 302 read with section 34, I.P.C. The High Court dismissed the appeal of the State against acquittal as also the appellant 's appeal against conviction.
In appeal to this Court, it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of the other accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity.
Allowing the appeal in part, ^ HELD: It was not permissible for the High Court to invoke section 149 or section 34, I.P.C. [659D E] (1) In a given case even if the charge disclosed only the named persons as co accused and the prosecution witnesses confined their testimony to them, it would be permissible to conclude that others, named or unnamed, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.
[657D] The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co accused, and with no other person.
The trial in fact went on that basis throughout.
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person.
So when the other four co accused had been given the benefit of doubt and acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant in causing injuries to the deceased.
The appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.
[659C E] Dharam Pal vs The State of U.P., ; explained and followed.
The King vs Plummer, ; Topandas vs The State of Bombay, ; Mohan Singh vs State of Punjab, [1962] Supp.
3 S.C.R. 848; Krishna Govind Patil vs State of Maharashtra, ; ; Ram Bilas Singh vs State of Bihar, and Yeswant vs State of Maharashtra; , referred to.
(2) The appellant was guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting and was, therefore, guilty of an offence under section 326 I.P.C. From the medical evidence, it is not possible to say that the death of the deceased was caused by gun shot or by blunt weapon injuries.
It however proved that the appellant inflicted gun shot in juries on the deceased, one of the injuries being grievous.
[659H] 652


judgement:
ons Nos. 652 of 1954 and 71 to 77 and 85 of 1955.
Under Article 32 of the Constitution for the enforcement of fundamental rights.
G. section Pathak, (P. N. Mehta and G. C. Mathur, with him) for the petitioners in Petition No. 652 of 1.954.
P. N. ~Mehta and G. ~0.
~Mathur, for the petitioners in Petitions Nos.
71 to 77 and 85 of 1955.
227 S.M. Sikri, Advocate Generalfor the State of Punjab (Jindra Lal and P. G. Gokhale, with him) for the respondent in all petitions.
April 12.
The following Judgments were delivered.
PETITION NO. 652 OF 1954.
MUKHERJEA C. J.
This is a petition under article 32 of the Constitution, preferred by six persons, who purport to carry on the business of preparing, printing, publishing and, selling text books for different classes in the schools of Punjab, particularly for the primary and middle classes, under the name and style "Uttar Chand Kapur & Sons".
It is alleged that the Education Department of the Punjab Government has in pursuance of their so called policy of nationalisation of text books, issued a series of notifications since 1950 regarding the printing, publication and sale of these books which have not only placed unwarrantable restrictions upon the rights of the petitioners to carry on their business but have practically ousted them and other fellow traders from the business altogether.
It is said that no restrictions could be imposed upon the petitioners ' right to carry on the trade which is guaranteed under article 19(1)(g) of the Constitution by mere executive orders without proper legislation and that the legislation, if any, must conform to the requirements of clause (6) of article 19 of the Constitution.
Accordingly, the petitioners pray for writs in the nature of mandamus directing the Punjab Government to withdraw the notifications which have affected their rights.
To appreciate the contentions that have been raised by the learned counsel who appeared for the parties before us, it will be necessary to narrate certain relevant facts.
In the State of Punjab, all recognised schools have got to follow the course of studies approved by the Education Department of the Government and the use, by the pupils, of the text books prescribed or authorised by the Department is a con dition precedent to the granting of recognition to a 228 school.
For a long period of time prior to 1950, the method adopted by the Government for selection and approval of text books for recognised schools was commonly known as the alternative method and the procedure followed was shortly this: Books on relevant subjects, in accordance with the principles laid down by the Education Department, were prepared by the publishers with their own money and under their own arrangements and they were submitted for approval of the Government.
The Education Department after proper scrutiny selected books numbering between 3 and 10 or even more on each subject as alternative text books, leaving it to the discretion of the Head Masters of the different schools, to select any one of the alternative books on a particular subject out of the approved list.
The Government fixed the prices as well as the size and contents of the books and when these things were done it was left to the publishers to print, publish and sell the books to the pupils of different schools according to the choice made by their respective Head Masters.
Authors, who were not pub lishers, could also submit books for approval and if any of their books were approved, they had to make arrangements for publishing the same and usually they used to select some one of the publishers already on the line to do the work.
This procedure, which was in vogue since 1905, was altered in material particulars on and from May 1950.
By certain resolutions of the Government passed on or about that time, the whole of the territory of Punjab, as it remained in the Indian Union after partition, was divided into three Zones.
The text books on certain subjects like agriculture, history, social studies, etc.
for all the zones were prepared and published by the Government without inviting them from the publishers.
With respect to the remaining subjects, offers were still invited from "publishers and authors" but the alternative system was given up and only one text book on each subject for each class in a particular zone was selected.
Another change introduced at this time was that the Government charged, as royalty, 5% on the sale price of all the 229 approved text books.
The result therefore was that the Government at this time practically took upon themselves the monopoly of publishing the textbooks on some of the subjects and with regard to the rest also, they reserved for themselves a certain royalty upon the sale proceeds.
Changes of a far more drastic character however were introduced in the year 1952 by a notification of the Education Department issued on the 9th of August 1952 and it is against this notification that the complaints of the petitioners are mainly directed.
This notification omitted the word "publishers" altogether and invited only the "authors and others" to submit books for approval by the Government.
These "authors and others", whose books were selected, bad to enter into agreements in the form prescribed by the Government and the principal terms of the agreement were that the copyright in these books would vest absolutely in the Government and the "authors and others" would only get a royalty at the rate of 5% on the sale of the text books at the price or prices specified in the list.
Thus the publishing, printing and selling of the books were taken by the Government exclusively in their own hands and the private publishers were altogether ousted from this business.
The 5% royalty, in substance, represents the price for the sale of the copyright and it is paid to an author or any other person who, not being the author, is the owner of the copyright and is hence competent in law to transfer the same to the Government.
It is against these notifications of 1950 and 1952 that the present petition under article 32 of the Constitution is directed and the petitioners pray for withdrawal of these notifications on the ground that they contravene the fundamental rights of the petitioners guaranteed under the Constitution.
The contentions raised by Mr. Pathak, who appeared in support of the petitioners, are of a three fold character.
It is contended in the first place that the executive Government of a State is wholly incompetent, without any legislative sanction, to engage in any trade or business activity and that the acts of 230 the Government in carrying out their policy of establishing monopoly in the business of printing and publishing text books for school students is wholly without jurisdiction and illegal.
His second contention is, that assuming that the State could create a monopoly in its favour in respect of a particular trade or business, that could be done not by any executive act but by means of a proper legislation which should conform to the requirements of article 19(6) of the Constitution.
Lastly, it is argued that it was not open to the Government to deprive the petitioners of their interest in any business or undertaking which amounts to property without authority of law and without payment of compensation as is required under article 31 of the Constitution.
The first point raised by Mr. Pathak, in substance, amounts to this, that the Government has no power in law to carry on the business of printing or selling text books for the use of school students in competition with private agencies without the sanction of the legislature.
It is not argued that the functions of a modern State like the police States of old are confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies.
A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community.
What Mr. Pathak says, however, is, that as our Constitution clearly recognises a division of governmental functions into three categories, viz., the legislative, the judicial and the executive, the function of the executive cannot but be to execute the laws passed by the legislature or to supervise the enforcement of the same.
The legislature must first enact a measure which the executive can then carry out.
The learned counsel has, in support of this contention, placed considerable reliance upon articles 73 and 162 of our Constitution and also upon certain decided authorities of the Australian High Court to which we shall presently refer.
Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding 231 provision in regard to the executive powers of a State is contained in article 162.
The provisions of these articles are analogous to those of sections 8 and 49 (2) respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following, the same analogy as is provided in regard to the distribution of legislative powers between them.
Article 162, with which we are directly concerned in this case, lays down: "Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof".
Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule.
The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament.
Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Govern ment of India by virtue of any treaty or any agreement.
The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to the State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also.
Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope.
They are concerned primarily with the distri 232 bution of the executive power between the Union on the one hand and the States on the other.
They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them.
On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not con fined to matters over which legislation has been passed already.
The same principle underlies article 73 of the Constitution.
These provisions of the Constitution therefore do not lend any support to Mr. Pathak 's contention.
The Australian cases upon which reliance has been placed by the learned counsel do not, in our opinion, appear to be of much help either.
In the first(1) of these cases, the executive Government of the Commonwealth during the continuance of the war, entered into a number of agreements with a company which was engaged in the manufacture and sale of wool tops.
The agreements were of different types.
By one class of agreements, the Commonwealth Government gave consent to the sale of wool tops by the company in return for a share of the profits of the transactions (called by the parties "a licence fee").
Another class provided that the business of manufacturing wool tops should be carried on by the company as agents for the Commonwealth in consideration of the company receiving an annual sum from the Commonwealth.
The rest of the agreements were a combination of these two varieties.
It was held by a Full Bench of the High Court that apart from any authority conferred by an Act of Parliament or by regulations thereunder, the executive Government of the Commonwealth had no power to make or ratify any of these agreements.
The decision, it may be noticed, was based substantially upon the provision of section 61 of the Australian Constitution which is worded as follows: (1) The Commtmonwwealth and the Central Wool Committee vs The Colonial Combining, Spinning and Weaving Co. Ltd., ; 233 "The executive power of the Commonwealth is vested in the Queen and is exercised by the Governor General as the Queen 's representative and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth", In addition to this, the King could assign other functions and powers to the Governor General under section 2 but in this particular case no assignment of any additional powers was alleged or proved.
The court held that the agreements were not directly authorised by the Parliament or under the provisions of any statute and as they were not for the execution and maintenance of the Constitution they must be held to be void.
Isacs, J., in his judgment, dealt elabo rately with the two types of agreements and held that the agreements, so far as they purported to bind the company to pay to the Government money, as the price of consents, amounted to the imposition of a tax and were void without the authority of Parliament.
The other kind of agreements which purported to bind the Government to pay to the company a remuneration for manufacturing wool tops was held to be an appropriation of public revenue and being without legislative authority was also void.
It will be apparent that none of the principles indicated above could have any application to the circumstances of the present case.
There is no provision in our Constitution corresponding to section 61 of the Australian Act.
The Government has not imposed anything like taxation or licence fee in the present case nor have we been told that the appropriation of public revenue involved in the so called business in text books carried on by the Government has not been sanctioned by the legislature by proper Appropriation Acts.
The other case(1) is of an altogether different character and arose in the following way.
The Commonwealth Government had established a clothing factory in Melbourne for the purpose of making naval and military uniforms for the defence forces and (1) Vide Attorney General for Victoria vs The Commonwealth ; 30 234 postal employees.
In times of peace the operations of the factory included the supply of uniforms for other departments of the Commonwealth and for employees in various public utility services.
The Governor General deemed such peace time operations of the factory necessary for the efficient defence of the Commonwealth inasmuch as the maintenance intact of the trained complement of the factory would assist in meeting wartime demands.
A question arose as to whether operations of the factory for such purposes in peace: time were authorised by the Defence Act.
The majority of the court answered the question in the affirmative.
Starke, J. delivered a dissenting opinion upon which Mr. Pathak mainly relied.
The learned Judge laid stress on section 61 of the Constitution Act according to which the executive power of the Commonwealth extended to the maintenance of the Constitution and of the laws of the Commonwealth and held that there was nothing in the Constitution or any law of the Commonwealth which enabled the Commonwealth to establish and maintain clothing factories for other than Commonwealth purposes.
The opinion, whether right or wrong, turns upon the particular facts of the case and upon the provision of section 61 of the Australian Act and it cannot and does not throw any light on the question that requires decision in the present case.
A question very similar to that in the present case did arise for consideration before a Full Bench of the Allahabad High Court in Motilal vs The Government of the State of Uttar Pradesh(1).
The point canvassed there was whether the Government of a State has power under the Constitution to carry on the trade or business of running a bus service in the absence of a legislative enactment authorising the State Government to do so.
Different views were expressed by different Judges on this question.
Chief Justice Malik was of opinion that in a written Constitution like ours the executive power may be such as is given to the executive or is implied, ancillary or inherent.
(1) A.I.R. 1951 Allahabad 257. 235 It must include all powers that may be needed to carry into effect the aims and objects of the Constitution.
It must mean more than merely executing the laws.
According to the Chief Justice the State has a right to hold and manage its own property and carry on such trade or business as a citizen has the right to carry on, so long as such activity does not encroach upon the rights of others or is not contrary to law.
The running of a transport business there fore was not per se outside the ambit of the executive authority of the State.
Sapru, J. held that the power to run a Government bus service was incidental to the power of acquiring property which was expressly conferred by article 298 of the Constitution.
Mootham and Wanchoo, JJ., who delivered a common judgment, were also of the opinion that there was no need for a specific legislative enactment to enable a State Government to run a bus service.
In the opinion of these learned Judges an act would be within the executive power of the State if it is not an act which has been assigned by the Constitution of India to other authorities or bodies and is not contrary to the provisions of any law and does not encroach upon the legal rights of any member of the public.
Agarwala, J. dissented from the majority view and held that the State Government had no power to run a bus service in the absence of an Act of the legislature authorising the State to do so.
The opinion of Agarwala J. undoubtedly supports the contention of Mr. Pathak but it appears to us to be too narrow and unsupportable.
It may not be possible to frame an exhaustive definition of what executive function means and implies.
Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate 236 assumption, by one organ or part of the State, of functions that essentially belong to another.
The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.
It can also, when so empowered, exercise judicial functions in a limited way.
The executive Government, however, can never go against the provisions of the Constitution or of any law.
This is clear from the provisions of article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.
The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up.
Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of the policy as well as carrying it into execution.
This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.
In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.
The President has thus been made a formal or constitutional 237 head of the executive and the real executive powers are vested in the Ministers or the Cabinet.
The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government.
In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part".
The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive func tions; and as the 'Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.
Suppose now that the Ministry or the executive Government of a State formulates a particular policy in furtherance of which they want to start a trade or business.
Is it necessary that there must be a specific legislation legalising such trade activities before they could be embarked upon? We cannot say that such legislation is always necessary.
If the trade or business involves expenditure of funds, it is certainly required that Parliament should authorise such expenditure either directly or under the provisions of a statute.
What is generally done in such cases is, that the sums required for carrying on the business are entered in the annual financial statement which the Ministry has to lay before the House or Houses of Legislature in respect of every financial year under article 202 of the Constitution.
So much of the esti mates as relate to expenditure other than those charged on the consolidated fund are submitted in the form of demands for grants to the legislature and the legislature has the power to assent or refuse to assent to any such demand or assent to a demand subject to reduc 238 tion of the amount (article 203).
After the grant is sanctioned, an Appropriation Bill is introduced to provide for the appropriation out of the consolidated fund of the State of all moneys required to meet the grants thus made by the Assembly (article 204).
As soon as the Appropriation Act is passed, the expenditure made under the heads covered by it would be deemed to be properly authorised by law under article 266(3) of the Constitution.
It may be, as Mr. Pathak contends, that the Appropriation Acts are no substitute for specific legislation and that they validate only the expenses out of the consolidated funds for the particular years for which they are passed; but nothing more than that may be necessary for carrying on of the trade or business.
Under article 266(3) of the Constitution no moneys out of the consolidated funds of India or the consolidated fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.
The expression "law" here obviously includes the Appro priation Acts.
It is true that the Appropriation Acts cannot be said to give a direct legislative sanction to the trade activities themselves.
But SO long as the trade activities are carried on in pursuance of the policy which the executive Government has formulated with the tacit support of the majority in, the legislature, no objection on the score of their not being sanctioned by specific legislative provision can possibly be raised.
Objections could be raised only in regard to the expenditure of public funds for carrying on of the trade or business and to these the Appropriation Acts would afford a complete answer.
Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business.
Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.
239 In the present case it is not disputed that the entire expenses necessary for carrying on the business of printing and publishing the text books for recognised schools in Punjab were estimated and shown in the annual financial statement and that the demands for grants, which were made under different heads, were sanctioned by the State Legislature and due Appropriation Acts were passed.
For the purpose of carrying on the business the Government do not require any additional powers and whatever is necessary for their purpose, they can have by entering into contracts with authors and other people.
This power of contract is expressly vested in the Government under article 298 of the Constitution.
In these circumstances, we are unable to agree with Mr. Pathak that the carrying on of the business of printing and publishing text books was beyond the competence of the executive Government without a specific legislation sanctioning such course.
These discussions however are to some extent academic and are not sufficient by themselves to dispose of the petitioners ' case.
As we have said already, the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution.
The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens.
Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Consti tution.
On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed.
The material question for consideration therefore is: What fundamental rights of the petitioners, if any, have been violated by the notifications 240 and acts of the executive Government of Punjab undertaken by them in furtherance of their policy of nationalisation of the text books for the school students? The petitioners claim fundamental right under article 19(1)(g) of the Constitution which guarantees, inter alia, to all persons the right to carry on any trade or business.
The business which the petitioners have been carrying on is that of printing and publishing books for sale including text books used in the primary and middle classes of the schools in Punjab.
Ordinarily it is for the school authorities to prescribe the text books that are to be used by the students and if these text books are available in the market the pupils can purchase them from any book seller they like.
There is no fundamental right in the publishers that any of the books printed and published by them should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future.
With regard to the schools which are recognised by the Government the position of the pub lishers is still worse.
The recognised schools receive aids of various kinds from the Government including grants for the maintenance of the institutions, for equipment, furniture, scholarships and other things and the pupils of the recognised schools are admitted to the school final examinations at lower rates of fees than those demanded from the students of non recognised schools.
Under the school code, one of the main conditions upon which recognition is granted by Government is that the school authorities must use as text books only those which are prescribed or autho rised by the Government.
So far therefore as the recognised schools are concerned and we are concerned only with these schools in the present case the choice of text books rests entirely with the Government and it is for the Government to decide in which way the selection of these text books is to be made.
The procedure hitherto followed was that the Government used to invite publishers and authors to submit their books for examination and approval by 241 the Education Department and after selection was made by the Government, the size, contents as well as the prices of the books were fixed and it was left to the publishers or authors to print and publish them and offer them for sale to the pupils.
So long as this system was in vogue the only right which publishers, like the petitioners had, was to offer their books for inspection and approval by the Govern ment.
They had no right to insist on any of their books being accepted as text books.
So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government.
Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them.
A trader might be lucky in securing a particular market for his goods but if he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever.
On the one hand, therefore, there was nothing but a chance or prospect which the publishers had of having their books approved by the Government, on the other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase the copyright in them from the authors and others provided the latter were willing to transfer the same to the Government on certain terms, we fail to see what right of the publishers to carry on their trade or business is affected by it.
Nobody is taking away the publishers ' right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the Government it is immaterial so far as they are concerned whether the Government approves of text books submitted by other persons who are willing to sell their copyrights in the books to them, or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print 31 242 and publish.
We are unable to appreciate the argument of Mr. Pathak that the Government while exercising their undoubted right of approval cannot attach to it a condition which has no bearing on the purpose for which the approval is made.
We fail to see how the petitioners ' position is in any way improved thereby.
The action of the Government may be good or bad.
It may be criticised and condemned in the Houses of the Legislature or outside but this does not amount to an infraction of the fundamental right guaranteed by article 19 (1) (g) of the Constitution.
As in our view the petitioners have no fundamental right in the present case which can be said to have been infringed by the action of the Government, the petition is bound to fail on that ground.
This being the position, the other two points raised by Mr. Pathak do not require consideration at all.
As the petitioners have no fundamental right under article 19 (1) (g) of the Constitution, the question whether the Government could establish a monopoly without any legislation under article 19(6) of the Constitution is altogether immaterial.
Again a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest in an undertaking within the meaning of article 31(2) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same.
The result is that the petition is dismissed with costs.
PETITIONS NOS.
71 TO 77 AND 85 OF 1955.
MUKHERJEA C. J.
These 8 petitions under article 32 of the Constitution raise identically the same points for consideration as are involved in Petition No. 652 of 1954 just disposed of.
The petitioners in these cases also purport to be printers, publishers and sellers of text books for various classes in the schools of Punjab and they complain of infraction of their fundamental rights under article 19 (1) (g) of the Constitution by reason of the various notifications issued by the State of Punjab in pursuance of their policy 243 of nationalisation of text books.
The learned counsel appearing in these cases have adopted in their entirety the arguments that have been advanced by Mr. Pathak in Petition No. 652 of 1954 and no fresh or additional argument has been put forward by any one of them.
This being the position the decision in Petition No. 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs.

dataset_name: IN-Abs

summary/full:
For a long period of time prior to 1950 the text books for recognised schools in the State of Punjab were prepared by private publishers with their own money and under their own arrangements and they were submitted for the approval of the Government.
The Government approved some books on each subject as alternative text books, leaving it to the discretion of the Head Masters of different schools to select any alternative book on each subject.
In May 1950 books on certain subjects (like agriculture, history, social studies, etc.) were prepared and published by the Government themselves without inviting offers from private publishers.
With respect to other subjects, offers were invited from "publishers and authors".
The alternative method was given up and only one text book on ,each subject was selected.
The Government charged as royalty 5% on the sale price of all the approved text books.
In 1952 a notification was issued by the Government which omitted the word "Publishers" altogether and invited only "authors and others" to submit books for approval by the Government.
The "authors and others" whose books were approved, had to enter into an agreement in the form prescribed by the Government the principal term of the agreement was that the copyright in these books would vest absolutely in Government and the authors and others" would get a royalty of 5% on the sale price of the text books.
It was contended that the publishing, printing and selling of text books was thus taken by the Government exclusively into its own hands and the private publishers were altogether ousted from the business.
The petitioners, who purport to carry on the business of preparing, printing, publishing and selling text books for recognised schools in the Punjab, pro29 226 ferred the present petition under article 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution.
Held that the action of the Government, whether it was good or bad, does not amount to an infraction of the fundamental right guaranteed by article 19(1)(g) of the Constitution.
In the present case no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government of the Punjab done by them in furtherance of their policy of nationalisation of the text books for the school students.
A more chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking within the meaning of article 31(2) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same.
Articles 73 and 162 of the Constitution do not contain any definition as to what the executive function is and what activities would legitimately come within its scope.
They are concerned primarily with the distribution of executive power between the Union on the one hand and the component States on the other.
They do not mean that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union executive or the State executive, as the case may be,can proceed to function in respect of them.
On the other hand, the language of article 162 Clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already.
The same principle underlies article 73 of the Constitution.
The Commonwealth and the Central Wool Committee vs The Colonial Combing, Spinning and Weaving Co. Ltd. (31 C.L.R. 421), Attorney General for Victoria vs The Commonwealth, ; and Motilal 1.
The Government of the State of Uttar Pradesh (A.I.R. 1951 Allahabad 257), referred to.


judgement:
Civil Appeal No. 282 of 1971.
Appeal by special Leave from the Judgment and Order dated 22 12 70 of the Gujarat High Court in C.R.A. No. 1353 of 1970 and CIVIL APPEAL NO.
2068/71 Appeal by Special Leave from the Judgment and Order dated the 31 3 71 of the Bombay High Court in Special Civil Application No. 859 of 1967.
D. V. Patel, section K. Dholakia and R. C. Bhatia for Appellants in C. A. 282/71.
V. section Desai, Makohn F. A. Pereize and H. section Parihar for Appellants in C. A. 2068/71.
V. section Desai, H. section Parihar and I. N. Shroff for Respondent in C.A. 282/71.
The Judgment of the Court was delivered by RAY, C.J.
Civil Appeal No. 282 of 1971 referred to as the Gujarat Appeal is by special leave from the order dated 22 December, 1970 of the High Court of Gujarat rejecting a revision application against the judgment and decree passed by the Extra Assistant Judge on 17 September, 1970.
Civil Appeal No. 2068 of 1971 hereinafter referred to as the Bombay Appeal is by special leave from the judgment and order dated 21 March, 1971 of the High Court of Bombay.
Both the appeals raise a common question as to whether the provision contained in section 12(3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as the Act applies.
The Gujarat High Court took the view that the provisions of section 12 (3) (a) of the Act apply to the suit.
The Bombay High Court took the view that the provisions contained in section 12 (3) (a) of the Act do not apply to the suit, but that the suit is governed by the provisions contained in section 12 (3) (b) of the Act.
The principal question is whether on receipt of a notice from the landlord terminating the tenancy on the ground of arrears of rent dispute as to standard rent has to be raised before the expiry of the period of one month after the service of the notice.
The Gujarat High Court has taken the view that the dispute as to standard rent is to be raised within one month from the service of the notice on the tenant.
The Bombay High Court has taken a contrary view and held that the tenant can raise a dispute as to standard rent in his written statement in answer to the suit and in 630 such a case the provisions of section 12 (3) (b) of the Act will apply.
In the Gujarat appeal the respondent filed a suit for recovery of possession of a portion of the ground floor of a building on the ground that the appellant was in arrears of rent from 1 September, 1964 and also on the ground that the respondent bonafide required possession of the premises in suit.
The Third Joint Civil Judge in the trial court gave a decree in favour of the respondent for possession of the premises.
The trial court held that the appellants were in arrears of rent from 1 September, 1964 and that they were not ready and willing to pay the rent.
The trial Court further held that the contractual rent in respect of the premises was not unreasonable and excessive.
The appellants in the Gujarat appeal filed an appeal in the court of District judge of Surat.
The Appellate Court by judgment dated 17 September, 1970 confirmed the judgment and decreed the suit.
The appellants thereafter filed a revision application before the Gujarat High Court on the ground that the court should have held that the case fell under section 12 (3) (b) of the Act.
The High Court rejected the revision application at sight.
The facts found in the Gujarat appeal are as follows: The appellants paid rent to the respondent up to 31 August, 1964.
The respondent landlord by notice dated 14 November, 1966 terminated the tenancy of the appellants, inter alia, on the ground that the appellants were in arrears of rent for more than six months.
The appellants received the notice on 6 December, 1966.
The respondent filed the suit on 2 February, 1967.
In the Gujarat appeal appellants contended that they raised the dispute about the standard rent by their letters dated 17 November, 1966; 19 December, 1966 and 11 February, 1967, and therefore, there was a dispute as to standard rent and the provisions contained in section 12 (3) (a) of the Act do not apply.
The Appellate Court found that the letters dated 17 November, 1966 and 19 December, 1966 alleged to have been written by the appellants to the respondent were manufactured by the appellants and the certificates of posting were obtained by unscrupulous means.
As to the alleged letter of the appellants dated 11 February, 1967 the Appellate Court found that in that letter the appellants referred to the letters dated 17 November, 1966 and 19 December, 1966.
The respondent by his reply dated 16 February, 1967 denied that the respondent ever received any letter dated 17 November, 1966 or 19 December, 1966.
On this evidence the Appellate Court found that there was no dispute as to rent within one month of the service of the notice terminating the tenancy.
In the Bombay Appeal the notice terminating the tenancy was dated 5 April, 1963 to deliver possession on the expiration of 15 May, 1963.
The suit was filed on 11 September, 1963.
The 631 appellants landlords alleged that the tenants were in arrears from 15 March, 1960 to 15 March, 1963, viz., for over six months.
In the Bombay appeal the trial Court gave a decree for possession.
The Appellate Court confirmed the judgment of the trial Court.
In an application under Article 227 of the Constitution the Bombay High Court held that when the respondent paid all arrears and costs of the suit on 23 December, 1964 it could not be said that the respondent did not comply with the provisions of section 12 (3) (b) of the Act.
The Bombay High Court took the view that the Full Bench of the Bombay High Court in Dattu Subhana Panhalkar vs Gajanan Vithoba Bobhate & Anr.
held that a tenant could raise a dispute as to standard rent by raising an issue as to standard rent in the written statement.
The provisions contained in sections 12 (3) (a) and (b) of the Act are as follows: "(3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent of permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such date as the Court may fix the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
" Explanation I to section 12 of the Act is as follows: "In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2) he makes an application to the Court under sub section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
" The following provisions with regard to standard rent are found in section 11 of the Act.
The Court may, upon an application made to it for that purpose, or in any suit or proceedings, fix the standard rent, inter alia, where there is any dispute between the landlord and the tenant regarding the amount of standard rent.
If any application for fixing the standard rent is made by a tenant who has received a notice from the landlord under sub section (2) of section 12, the Court shall forthwith specify the amount of rent or permitted 632 increases which are to be deposited in Court by the tenant and make an order directing the tenant to deposit such amount in Court or at the option of the tenant make an order to pay to the landlord such amount thereof as the Court may specify, pending the final decision of the application.
Out of any amount deposited in Court, the Court may make an order for payment of such reasonable sum to the landlord towards payment of rent or increases due to him as it thinks fit.
If the tenant fails to deposit such amount or, as the case may be, to pay such amount thereof to the landlord, his application shall be dismissed.
Under section 12 of the Act the landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act.
Sub section (2) of section 12 of the Act states that no suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act.
Clause (a) of sub section (3) of section 12 of the Act provides for the passing of a decree for eviction first, where the rent is payable by the month; second, there is no dispute regarding the amount of standard rent or permitted increases; third, the rent or increases are in arrears for a period of six months; and fourth, the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2) of section 12 of the Act.
Clause (b) of sub section (3) of section 12 of the Act, states that in any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may, fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
Explanation I to section 12 of the Act provides that where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of section and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
Counsel for the appellant in the Gujarat appeal relied on the Bombay view that there is no limitation of time during which a dispute must be raised and none can be implied from the Explanation.
The Bombay High Court has not agreed with the view of the Gujarat 633 High Court in Ambalal vs Badaldas.
The Bombay view is that the dispute in section 12(3)(a) is not limited only to a dispute raised within one month of the notice as contemplated in section 12(3) (b) of the Act.
The Bombay High Court relied on section 11(4) of the Act the provisions whereof are as follows: "Where at any stage of a suit for recovery of rent whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court Shall and in any other case if it appears to the Court that it is just and proper to make such an order the Court may make an order directing the tenant to deposit in Court forthwith such amount of the rent as the Court considers to be reasonably due to the landlord, or at the option of the tenant an order directing him to pay to the landlord such amount thereof as the Court may specify.
The Court may further make an order directing the tenant to deposit in Court periodically, such amount as it considers proper as interim standard rent, or at the option of the tenant an order to pay to the landlord such amount thereof, as the Court may specify, during the pendency of the suit.
The Court may also direct if the tenant fails to comply with any order made as aforesaid, within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify.
" The Bombay High Court held that to limit raising a dispute within one month from the service of notice would render the provisions of section 11(4) nugatory.
The Bombay High Court held that the effect of sections 11 and 12 of the Act is to give the tenant a right to dispute the standard rent in the event of a suit and if the tenant raises a dispute in answer to a suit for recovery of rent it would be a dispute within the meaning of section 12(3) (a) of the Act and would take the suit out of the provisions of that sub section.
The Gujarat High Court in the decision in Ambalal 's case (supra) and in Chunilal Shivlal vs Chimanlal Nagindas took the view that in order to avoid the operation of section 12(3) (a) of the Act the dispute in regard to standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of service of notice under section 12(2) of the Act and it is not enough to raise a dispute for the first time in the written statement.
In Ambalal 's case (supra) the question was as to what should be stage at which the dispute in regard to standard rent or permitted increases must be raised in order to take the case out of section 12(3) (a) of the Act.
The Gujarat High Court held that the dispute is one which is in existence at the date of the notice or at any rate before the ex 634 piry of one month from the date of its service and not the one raised subsequently in a written statement with a view to avoiding the operation of section 12(3) (a) of the Act.
Counsel for the appellants in the Gujarat appeal contended that the decision in Vora Abbasbhai vs Haji Gulamnabi has overruled Amblal 's case (supra).
In Vora Abbasbhai 's case the notice terminating the tenancy was dated 1 December, 1956.
The tenant by reply dated 7 December, 1956 contended that the contractual rent was excessive.
The tenant made an application on 5 January 1957 for fixation of standard rent under section 11(1) of the Act.
While the application was pending the landlord filed the suit on 27 January, 1957 for ejectment.
The tenant in the written statement reiterated the contention that the contractual rent was excessive and that the standard rent should be fixed by the Court.
On these facts the question in Vora Abbasbhai 's case (supra) was whether the case fall within section 12(3) (a) or section 12(3) (b) of the Act.
The only point in controversy in Vora Abbasbhai 's case (supra) was whether the second condition in section 12(3) (a) of the Act, viz., that there was no dispute regarding the amount of standard rent was fulfilled.
The landlord 's contention was that the dispute concerning standard rent is one which must have been raised before service of the notice and since there was admittedly no dispute in regard to standard rent or permitted increases at the date of service of the notice under section 12 (2) of the Act the second condition in section 12(3) (a) that there was no dispute was satisfied.
This Court did not accept the landlord 's contention there and held that the defendant in that case raised the contention by reply dated 7 December, 1956 that the contractual rent was excessive and raised the same contention in the application filed for fixation of standard rent.
The Gujarat High Court in Ambalal 's case (supra) held that in order to attract the applicability of section 12 (3) (a) of the Act there must be non existence of the dispute at the date of the notice and such non existence must continue right up to the expiration of one month from the date of service of the notice so that if the dispute is raised at any time prior to the expiration of the said period on one month, the operation of section 12(3) (a) would be excluded.
The latest point of time when according to Ambalal 's case (supra) the dispute in regard to the standard rent must be raised in order to avoid the operation of section 12(3) (a) of the Act is the expiry of one month from the date of service of the notice.
Ambalal 's case (supra) did not say that the dispute concerning standard rent must be raised before service of the notice in order to repel the applicability of section 12(3) (a) of the Act.
If the dispute is in existence prior to the expiry of one month after service of the notice though subsequent to the date of the notice that would be sufficient to oust the operation of section 12(3) (a) of the Act.
The decision of this Court in Vora Abbasbhai 's case (supra) has not overruled the decision in Ambalal 's case (supra).
In Ambalal 's case (supra) the conclusion is a single 635 one and it is that in order to exclude the operation of section 12(3) (a) of the Act the dispute must be in existence latest within one month after service of the notice.
The question as to when a dispute is to be raised came up for consideration in Shah Dhansukhlal Chhanganlal vs Dalichand Virchand Shroff & Ors.
The appellant fell into arrears of rent in that case.
The landlord gave a notice to the tenant on 18 April, 1955 demanding the arrears of rent and also terminating the tenancy of the defendant with effect from 31 May, 1955.
The notice was received by the defendant on 21 April, 1955, The suit for ejectment was filed on 15 March, 1956 on the ground that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act.
This Court held that section 12 (1) of the Act must be read with Explanation and so read it means that the tenant can only be considered to be ready and willing to pay if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court.
This Court found in Chhaganlal 's case (supra) that the tenant made no payment within the period of one month of the notice of ejectment and further that although in his written statement he raised a dispute about the standard rent he made no application in terms of section 11(3) of the Act.
The tenant can claim protection from the operation of section 12(3) (a) of the Act only if the tenant makes an application within one month of the service of the notice terminating the tenancy by raising a dispute as to standard rent.
The view of the Bombay High Court overlooks the limitation of time within which a dispute is to be raised as to standard rent.
The view of the Bombay High Court is that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and there is another mode of raising the dispute at any stage of the suit.
The view of the Bombay High Court nullifies the provisions contained in section 12 and Explanation thereto and confers a right on the tenant where the legislation does not contemplate such a right.
The provisions in section 11(3) of the Act deal with orders which may be passed by the Court during the pendency of the application disputing the rent.
Provisions in section 11(4) of the Act deal with orders which may be passed consequent upon dispute as to rent.
It is 636 only when an application disputing rent is made within the time contemplated by Explanation I to section 12 of the Act that the provisions in sub section (3) and (4) of section 11 are attracted.
For the foregoing reasons we uphold the view of the Gujarat High Court and we do not accept the view of the Bombay High Court.
We dismiss Civil Appeal No. 282 of 1971 with costs.
We accept Civil Appeal No. 2068 of 1971 and the judgment of the Bombay High Court is set aside.
The decree passed by the Civil Judge on 31 October, 1964 and affirmed by the Assistant Judge on 27 September, 1966 is restored.
The appellants will be entitled to costs.
P.H.P. C. A. No. 282 of 1971 dismissed.
C. A. No. 2068 of 1971 allowed.

summary/full:
Both the appeals raise a common question as to whether a tenant in order to resist passing of a decree of eviction under the provisions contained in section 12(3)(a) of the Bombay Rent Act 1947 must dispute the standard rent within one month from the date of receipt of the notice from the landlord terminating the tenancy on the ground of arrears of rent or whether a tenant can raise such a dispute in the written statement.
The Gujarat High Court took a view that the dispute as to standard rent has to be raised within one month from the service of the notice on the tenant.
The Bombay High Court has taken a contrary view and held that the tenant can raise a dispute as to standard rent in his written statement in answer to the suit and in such a case the provisions of section 12(3)(a) of the Act will apply.
In the Gujarat case, the High Court found that the tenant did not raise the dispute within one month of the service of the notice terminating the tenancy inter alia, on the ground of arrears of rent for more than 6 months.
In the Bombay appeal the dispute was not raised within one month from the date of the receipt of the notice.
It was, however, raised in the written statement.
Under section 11 of the Act, the court has power to determine standard rent when there is a dispute between the landlord and tenant regarding the amount of standard rent.
^ HELD: (1) Under section 12 of the Act the landlord is not entitled to recover possession of the premises so long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases.
Section 12(2) provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent until the expiration of one month next after notice in writing of the payment of the standard rent.
Section 12(3)(a) provides for passing a decree for eviction of the tenant is in arrears for a period of 6 months and neglects to make the payment after the expiration of the notice period provided there is no dispute regarding the amount of standard rent.
Clause 12(3)(a) provides that in any other case no decree for eviction should be passed if the tenant pays or tenders in the court the standard rent and permitted increases which is due and thereafter continues to pay or tender in court regularly such rent till the suit is finally decided.
Explanation I to section 12 provides that where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if before the expiry of the period of one month from the receipt of the notice he makes an application under section 11 for the fixation of the standard rent and thereafter pays the rent fixed by the Court.
[632 B, G] (2) The Bombay High Court view overlooks the limitation of time within which a dispute is to be raised as to standard rent.
The view of the Bombay High Court that dispute within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and there is another mode of raising the dispute at any stage of the suit, nullifies the provisions contained in section 12 and explanation thereto and confers a right on the tenant where the legislation does not contemplate such right.
The provisions in section 11(3) of the Act deal with orders which may be passed by the court during the pendency of the application disputing the rent.
Provisions of section 11(4) of the Act deal with orders which may be passed consequent upon dispute as to rent.
It is 629 only when an application disputing the rent is made within the time contemplated by Explanation I to section 12 of the Act that the provisions on sub sections (3) and (4) of section 11 are attracted.
[635F H, 636A]