judgement:
Appeal No. 1354 of 977.
From the Judgment and Order dated 4.5.1977 of the Guja rat High Court in Letters Patent Appeal No. 114 of 1977.
P.H. Parekh and Ms. Shalini Soni for the Appellants.
230 T.U. Mehta, H.S. Parihar, Kuldeep section Parihar, Mrs. Manik Karanawala (N.P.), Mrs. Nandini Gore and Anip Sachthey (N.P.) for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave is against the judgment of the Division Bench in L.P.A. No. 114 of 1977 dated May 4, 1977 of the Gujarat High Court.
The one ques tion for decision in this appeal is whether the compliance of sub rules (3) and (4) of Rule 22 of Bombay Town Planning Rules 1955 for short 'the Rules ' is mandatory and whether the violation thereof invalidates the final town planning scheme.
In a suit laid by the appellants, the trial court found as a fact that the appellant, a partnership firm, was continuing in possession of the old premises bearing M.C. 2 No. 352/3 (S) No. 163 A 2 from the year 1940 as a directte nant of Ahmedabad Panjara Pole, Barartha, a registered trust, the owner of the plot of land of survey No. 163 situated in Ward No. 'C ' in front of town hall in Sher Kota outside Saraspur gate in the city of Ahmedabad.
The original plot consists of an area about 5 hundred to 6 hundred square yards in extent wherein ' certain structures were laid and leased out to the tenants or sub tenants for business pur poses.
The Town Planning Scheme was formulated by the munic ipal corporation exercise of its power under the Bombay Town Planning Act 1955 (Act 27 of 1956) for short 'the Act ' and reconstituted the final plot Nos. 82 and 83 out of the original plot No. 59 of the Town Planning scheme No. 16, Sher Kota Admn.
(Survey No. 163).
The Town Planning Officer did not issue special notice as required under sub rule (3) and opportunity provided for under sub rule (4) of Rule 21.
The appellants along with others filed civil suits challeng ing the action.
The appellants ' suit was decreed declaring that final plot Nos. 82 and 83 upon which the structures were standing with Municipal No. 352/3 and in occupation of the appellants is illegal, invalid and issued a permanent injunction restraining the respondent not to enforce the reconstituted plot Nos. 82 and 83 until due procedure is followed.
The learned Single Judge in First Appeal No. 669/76 allowed the appeal alongwith other bunch of appeals holding that the decision in Dungarlal Harichand vs State of Gujarat & Ors., Bench) ratio applies to the facts in this case and the appellants are not entitled to special notice required under sub rule (3) and opportunity under sub rule (4) of Rule 21.
The failure to comply therewith does not vitiate nor render the draft scheme or the final scheme a nullity.
Accordingly the learned single Judge allowed the appeal, set aside the decree of the trial court and dismissed the suit.
On Letter Patent Appeal, the Division Bench confirmed the same.
Thus this appeal.
231 Shri Mehta, the learned Senior Counsel for the respond ents claimed that special notice required under sub rule (3) and the opportunity under sub rule (4) of Rule 21 were not mandatory.
Hence they were not complied with.
Since sub rule (3) of Rule 21 is only an additional advantage, it is not dispensable.
At any rate it could be waived.
The framing of the town planning scheme and its final approval is for the benefit of the residents of the local authority as an amenity provided therein to the general public i.e. Instruc tion of General Post Office.
The interest of the general public outweighs the individual interest.
Therefore, sub rule (3) of Rule 21 is not mandatory.
A bird 's eye view of the statutory scheme and its effect on the right and interest of the owner or tenant would point poignantly that the contention is devoid of substance.
The Act as modified and adapted by the Gujarat Adaptation of Laws (State Amendments) Order 1963 as amended from time to time was to ensure that the town planning schemes are made in a proper manner and execution thereof is made effective.
The local authority has to prepare a development plan (Master Plan) for the entire area within its jurisdiction.
Section 2(2) defines development plan means a plan for the development and redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under section 3.
The local authority has been defined under section 2(4) to mean municipal corporation or municipality etc.
Section 2(5) defines owner in an inclusive lay saying that any person for the time being receiving or entitled to receive . . the rent or profits of the property in connection with which it is used.
Section 2(3) defines "plot" to mean "a continuous portion of land held by one ownership".
Section 2(9) defines "reconstituted plot" to mean a plot which is in any way altered by the making of a town planning scheme.
Section 2(10) defines "scheme" to include "a plan relating to a town planning scheme".
Section 3(1) empowers every local authority to prepare and publish in the prescribed manner a development plan and to submit it to the State Govt.
for sanction otherwise Government too is empowered to do so.
Under sub section (1) of section 4 the local authority is authorised to make a declaration of its inten tion to prepare a development plan and to despatch a copy thereof to the State Govt.
for publication in the Official Gazette.
The State Govt.
after inviting suggestions from the public within a period of two months is to publish in the Official Gazette the fact of making such declaration or intention as aforesaid.
Section 7 prescribes the particulars of the Master Plan.
Chapter III prescribes the making and the contents of the town planning scheme.
Section 18 provides that a local authority may make one or 232 more town planning schemes for the area within its jurisdic tion or in part thereof, regard being had 'to the proposal in the final development plan.
Sub section (2) provides that such town planning scheme 'may make provisions" for any of the following matters: (a) 'the laying out" or "relaying out of land", either vacant or "alreadybuilt upon"; (b) . . (omitted being irrelevant); (c) lay out of new streets or roads, constructions diversion, extension, alteration, improvement and stopping up of streets, roads and communications; (d) the construction, "alteration" and "removal of buildings", bridges and other structures; (e) "the allotment" or "reservation" of land for roads, open spaces, gardens, recreation grounds, school, market, green belts and dairies, transport facilities and public purposes of all kinds; (f) drainage inclusive of sewerage, surface or sub soil drainage and sewage disposal; (g) lighting; (h) Water supply; (i) Omitted.
(j) "imposes" sub section (2) 'conditions and restric tions" in regard to the "open space to be maintained about buildings", the percentage of building area for a plot, the number, size, height and character of buildings allowed in specified areas, the purposes to which buildings or speci fied areas may or not be appropriated, "the sub division of plots", the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building or the sizes of projec tions and advertisements signs.
(k) & (1) Omitted.
In Chapter IV under sub sec.
(1) ors.
22, the local authority may by a resolution declares its intention to make a town planning scheme in respect of the whole or any part of the land which is in the course of development 233 or likely to be used for building purposes or already built upon.
Within 21 days from the date of such declaration it shall publish it in the prescribed manner (the details are not relevant here) and shall despatch a copy thereof to the State Govt.
Under sub section (1) of section 23, within 12 months from the date of such declaration or extended period not exceeding six months, the draft scheme for the area in respect of which the declaration has been made by a notifi cation in the official Gazette, shall be approved.
Section 25 envisages specification of the particulars in the draft scheme.
Clause (a) "specifies the area", "ownership" and "tenure of each original plot"; (b) the land allotted or reserved under sub clause (a) of Clause (2) of section 18; (c) "the extent" to which it is "proposed to alter the bound aries of original plots" etc.
Under section 26 "the size and shape of every reconstituted plot" shall be determined, so as to render it suitable for building purposes etc.
with further particulars enumerated in sub sections (2) and (3) thereof.
Section 27 gives an opportunity to any person effected by such scheme to submit objections, if any, within six months from the date of publication of the draft scheme.
The local authority shall consider such objections; it is empowered to modify such scheme as it thinks fit in the light of the objection and then to submit it to the State Govt.
within four months from the date of its publication in the official Gazette as required under section 28(1).
The State Govt.
within six months from the date of the submis sion of the draft scheme by the local authority original or with modification shall sanction such scheme with or without any further modification and publish the same in the offi cial Gazette with such conditions as it may think fit.
Such scheme shall be open to the inspection of the public under section 28(3).
Under section 31(1), within one month from the date of the publication of the draft sanctioned town planning scheme, the State Govt.
shall appoint a Town Planning Offi cer who is to make final scheme while performing the duties imposed on him under section 32 in accordance with the procedure prescribed in section 32 and the Rules.
Under section 32 after notice given in the manner, it defines and demarcates the areas allotted to, or reserved, for a public purposes or purpose of the local authority and the reconstituted plots; indicate the person to be allotted of ownership in reconsti tuted plot in common and the shares of such persons, etc.
He has also to fix the difference between the total of the value of the original plot and the total of the plots in cluded in the final scheme etc.
He has also to calculate or to estimate the compensation payable on each plot used; the contribution to be levied on each plot used, or reserved for a public purpose; of use partly to the owner and partly to the public; to determine the amount of exemption, if any, from payment of the contribution of the lands occupied by religious and charitable purposes.
The contribution of the 234 costs in the final scheme is also enjoined to be calculated and to determine the liabilities etc.
as indicated in Clauses (vi) to (xi).
Clause (xii) provides for the total or partial transfer of any right in any original plot to a reconstituted plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in section 68 and then has to draw plan as provided under clause (xiv) in the final scheme in accordance with the draft scheme.
Under the proviso it is empowered to make variation from the draft scheme the details of which are not necessary but suffice to state that under the proviso no substantial variation shall be made by the Town Planning Officer without the consent of the local authority and without hearing any objections which may be raised by the owner concerned.
Thereafter, the decision of the Town Plan ning Officer subject to an appeal if any, the State Govt.
under section 34, shall make it final and binds the parties.
The final scheme shall be published, after following the procedure in Rule 21(1) to (8), as per sub rule (9).
Section 54 provides that on and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme shall be ejected summarily as per the prescribed procedure and local authority shall also be entitled to remove, pull down or alter any building or other work in the area included in the scheme under section 55 after giving notice in the prescribed manner and in accordance with the procedure of the scheme.
Section 56 gives power to the State Govt.
to vary scheme on grounds of irregularity or infirmity in making the scheme.
Under section 60 every party to any proceeding before the Town Planning Officer shall be enti tled to appear either in person or by his recognized agent.
Though the challenge in the appeal is confined to a limited point, as will presently appear, we have given the conspectus of the statutory scheme to bring out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules.
He is entitled to alter the plots, make reconstitution of plots, determine the persons entitled to reallotment on reconstitution; to reserve the area for public purpose; determine the compensation; liability of the owner to con tribute the amount; to provide amenities etc.
At the rele vant stages, he is required to issue notice to the effected person.
The question is whether the tenant or a sub tenant is a person interested and is entitled to notice.
It is obvious that under section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in 235 possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law.
Therefore, a tenant or a subtenant in possession of a tene ment in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) & (4) of the Rules.
But he must be in possession of the property on the crucial date i.e. when the town plan scheme is notified in the official gazette.
Every owner or tenant or a sub tenant, in posses sion on that date alone shall be entitled to a notice and opportunity.
Undoubtedly, the Town Planning Scheme was published on July 1, 1951.
There was inordinate delay in implementation of the scheme for 30 long years.
Though Shri Parekh, learned counsel for the appellants, contended that a better scheme could be formulated for construction of a post office upon the reconstituted plot No. 82 by leaving out the shops in question; we are not inclined to embark upon an enquiry in that regard.
The Act gives power to the local authority to have the matter investigated into and to formulate its town planning scheme; its approval is by the State Govt.; an expert officer, namely, Town Planning Officer, thereafter, is appointed to finalise the scheme with all local assist ance.
He, being an expert on the site, is entitled to look into all relevant aspects and to finalise the scheme for reconstitution of the plot or alteration of the boundaries etc.
Appellants are entitled to notice under sub rule (3) and a reasonable opportunity under sub rule (4) thereof.
Rule 21(1) to (8) lay down the procedure to be followed by the Town Planning Officer and it reads thus: 21.
Procedure to be followed by Town Planning Officer: The Town Planning Officer shall give notice to the date on which he will commence his duties and shall state therein the time, as provided in rule 30, within which the owner of any property or rights which is injuriously af fected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in promi nent places at or near the area comprised in the scheme and at the office of the Town Planning Officer.
(2) The Town Planning Officer, shall, after the date fixed in the notice given under sub rule (1), continue to carry on his duties as far as possible on working days and during working hours.
(3) Special notice of at least three clear days shall be served upon the person interest ed in any plot or in any particular comprised in the scheme, before the Town Planning Offi cer, 236 proceeds to deal in detail with the portion of the scheme relating thereto.
Such special notice shall also be posted at the office of the Town planning, Officer.
Such notice shall be given in the cases mentioned in clause (i), (ii) and (iii) of sub section (1) of section 32 and in any other cases where any persons have not been sufficiently informed that any matter affecting them is to be considered.
(4) The Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any.
(5) If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opin ion with regard to any part of the scheme, the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons there of.
All such minutes shall be appended to the scheme.
(6) The Town Planning Officer shall record and enter in the scheme every decision given by him under clauses (i), (ii), (iii), (vii), (x) and (xii) of sub section (1) of section 32.
The calculations and estimates required by clauses (iv), (v) , (vi), (vii), (ix), (x) and (xiii) of sub section (1) of section 32 shall be set out and recorded.
(7) The final scheme drawn up by the Town Planning Officer shall include the particulars specified in rule 17.
(8) The component parts of the scheme shall be so ar ranged that they may be readily referred to in connection with the map and plans.
(9) Omitted.
A reading of section 32 read with Rule 21(3) makes it abun dantly clear that the the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the effected persons to submit objections or views; are to be given adequate opportunity under rule 21(4) to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc.
He is also entitled to alter the bound aries, allocate certain lands for public purposes, reduce the size of the existing plots or re distribute the plots to the owners etc.
in the 237 reconstituted plot.
The second stage is the calculation of the contribution and apportionment thereof among the persons liable to make contribution.
Thus the owner, tenant or a sub tenant, as the case may be, is entitled to a notice and an adequate opportunity to place on record, if he so choses, his objections or views and the same shall be considered and action taken thereafter.
It is settled law that before depriving a person of his property or imposing any further liability, the principles of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections.
Rule 21(3) speaks of special notice of at least three days duration.
It is in consonance with and in compliance of the principles of natural justice.
The legislature thus made a distinction between the general notice envisaged in sub rule (1) of Rule 21 and special notice under sub rule (3) of Rule 21, which was in addition to the former.
The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self evident.
These sub rules subserve the principles of natural justice to avoid arbitrariness offending article 14 and to be just and fair procedures satisfying the mandate of article 21.
Nonobservance otherwise would render the scheme illegal.
No provision of a statute or Rule would be rendered surplusage or otiose.
The construction of the Rules by the Full Bench would, however, result in rendering subrules (3) & (4) surplusage and otiose.
Sub rule (4) postulates that Town Planning Officer shah give to a person effected by the scheme sufficient opportunity to state his views and shall not give any.
decision till he duly considers the represen tation, if any.
The issuance of notice under sub rule (3) and giving of sufficient opportunity under sub rule (4) are self evident to subserve the basic concept of fair and just procedure.
Accordingly we hold that issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person effected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme.
The use of 'shall ' in the given circumstances may be construed to be directory but not mandatory as contended by Shri Mehta.
The appearance of 'shall ' is not conclusive, nor per se connotes its mandatory contour.
Its meaning must be ascertained in the light of the legislative intent in its employment, the context in which it was couched, the conse quences it produces the result it effected and above all the purpose it seek to serve, would all be kept in view.
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it.
Public interest, is always a paramount consideration.
Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules (3) and (4) of Rule 21 injuriously affects the right to 238 property of the owner or interest of the tenant or sub tenant, as the case may be, it shall be construed to be mandatory and not directory.
In this view it is redundant to burden the judgment with all the decisions cited by either counsel.
The principle of.
Waiver connotes issuance of notice and non response thereto.
Everyone has a right to waive an advantage or protection which law seeks to give him/her.
Undoubtedly, if a notice iS issued and no representation was made by either the owner, tenant or a sub tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that there is non compliance of sub rules (3) and (4) of Rule 21.
It would amount to putting premium on dilatory and dishonest conduct.
Accordingly, we are of the considered view that the judgments in Kaushikprasad Chandulal Mahadevia & Anr.
vs The Ahmedabad Municipal Corporation and Ors,, 1970 (11) G.L.R. 993 and Mohanlal Jesinghbhai vs P.J. Patel, Town Development Officer, Ahmedabad Municipal Corporation * Ors., , laid down the law correctly.
The finding of the Full Bench in the first part of its judgment to the effect that non compliance with the requirements of sub rules (3) and (4) of Rule 21 does not vitiate the scheme is not sound in law.
It is seen that the appellant has been in possession as tenant for well over half a century and, therefore, it is injuriously affected by the scheme which has the effect of terminating his possession and this adversely affects its business in the demised premises.
Since it is a running business over the years, the respondent is directed to provide an alternative premises by allotting a suitable shop within the city to the appellant; to put it in possession thereof and until then allow its occupation of demised shop.
In case the appellant does not vacate or creates any ob struction in any form in the matter of possession, it would be open to the respondent to have the appellant ejected summarily.
In this view we decline to interfere with the scheme.
The appeal is accordingly allowed to the above extent and in other respects the decree of the Courts below is upheld.
But in the circumstances parties are directed to bear their own costs.
T.N.A. Appeal allowed.

summary/full:
The appellant was in possession of a plot as a tenant.
Pursuant to Town Planning Scheme framed by the respondent Corporation under the Bombay Town Planning Act, 1955 the said plot was re constituted i.e. the plot was altered by the making of the Town Planning Scheme.
The respondent was injuriously affected by the said scheme because it has the effect of terminating his possession and adversely affected his business in the demised premises.
However, before fina lising the scheme the Town Planning Officer neither issued special notice to the respondent a required under sub rule (3) nor provided him an opportunity as provide 227 under sub rule (4) of Rule 21 of the Bombay Town Planning Rules, 1955.
The appellants filed a civil suit challenging the action and the Trial Court issued a permanent injunction restraining the respondent Corporation from reconstituting the plot until due procedure was followed.
On appeal by the Corporation a Single Judge of the High Court allowed the appeal and set aside the decree of the Trial Court and dismissed the suit.
The Single Judge fol lowed the decision of the Full Bench in Dungarlal Harichand vs State of Gujarat & Ors.
holding that the appellants were not entitled to special notice under sub rule (3) and opportunity under sub rule (4) and 2that non compliance with the said rule does not vitiate the Planning Scheme.
The decision of the Single Judge was con firmed in Letter Patent appeal by the Division Bench of the High Court.
In tenant 's appeal to this Court it was contended on behalf of the Respondent Corporation that (i) compliance with sub rule 21(3) & (4) was not mandatory; (ii) Since sub rule 21 (3) is only an additional advantage It is dis pensable and could be waived; (iii) the framing of the Town Planning Scheme is for the benefit of the residents of the Local authority as an amenity provided therein to the gener al public i.e. construction of General Post Office, the interest of the general public outweighs the individual interest.
Therefore, sub rule 21(3) is not mandatory; (iv) the use of the word 'shall ' in rule 21(3) may be construed as directory and not as mandatory.
Allowing the appeal, this Court, HELD: 1.
Under Section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law.
Therefore, a tenant or a sub tenant in possession of a tenement in the Town Planning Scheme is a person inter ested within the meaning of Rules 21(3) & (4) of the Rules.
But he must be in possession of the property on the crucial date i.e. when the town plan scheme is notified in the official gazette.
Every owner or tenant or a sub tenant, in possession on that date alone shall be entitled to a notice and opportunity.
Accordingly, appellants are entitled to notice under sub rule (3) and a 228 reasonable opportunity under sub rule(4) thereof.[234H;235A B;235 E] 2.
A conspectus of the statutory scheme brings out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules.
At the relevant stages, he is required to issue notice to the affected person.
[234 F G] 2.1 A reading of section 32 of the Bombay Town Planning Act, 1955 read with Rule 21(3) makes it abundantly clear that the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the affected persons to submit objections or views; affected persons are to be given ade quate opportunity under rule 21(4) to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc.
[236 G H] 3.
Rule 21(3) speaks of special notice of at least three days duration.
It is inconsonance with and in compli ance of the principles of natural justice.
The legislature thus made a distinction between the general notice envisaged in sub rule (1) of Rule 21 and special notice under sub rule (3) of Rule 21, which was in addition to the former.
[237 C] 3.1 The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self evident.
The issuance of notice under sub rule (3) and giving of sufficient opportunity under sub rule (4) are self evident to subserve the basic concept of fair and just procedure.
These sub rules subserve the principles of natu ral Justice to avoid arbitrariness offending Article 14 and to be Just and fair procedure satisfying the mandate of Article 21.
[237 C,E] 4.
It is settled law that before depriving a person of his property or imposing any further liability, the principle of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections.
[237 B] 4.1 Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules (3) and (4) of Rule 21 229 injuriously affects the right to property of the owner or interest of the tenant or sub tenant, as the case may be, it shall be construed to be mandatory and not directory.
There fore, the issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person affected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme.
[237 H; 238 A; 237 E] Kaushikprasad Chandulal Mahadevia & Anr.
vs The Ahmedabad Municipal Corporation and Ors., (1970) 11 G.L.R. 993; Mohanlal Jesinghbhai vs PJ.
PateI, Town Development Officer, Ahmedabad Municipal Corporation & Ors, , approved.
Dungarlal Hanchand vs State of Gujarat & Ors., , disapproved.
The appearance of 'shall ' is not conclusive, nor per se connotes its mandatory contour.
Its meaning must be ascertained in the light of the legislative intent in its employment, the context in which it was couched, the conse quences it produces the result it effected and above all the purpose it seek to serve, would all be kept in view.
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it.
Public interest, is always, a paramount consideration.
[237 F G] 6.
The principle of Waiver connotes issuance of notice and non response thereto.
Everyone has a right to waive an advantage or protection which law seeks to give him.
Un doubtedly, if a notice is issued and no representation is made by either the owner, tenant or a sub tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that :here is non compliance of sub rules (3) and (4) of Rule 21.
It would amount to putting premium on dilatory and dishonest conduct.
[238 B C]


judgement:
Appeal No.2929 of 1986.
From the Judgment and Order dated 20.12.1985 of the Delhi High Court in C.W.P. No. 3120 of 1985 .
K.R. Nagaraja, R.S. Hegde and Mrs. Sushila for the Appel lant.
G.Venkatesh Rao and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by special leave is directed against the order of the High Court of Delhi dated 20th December, 1985 dismissing in 140 limine the writ petition filed by the appellant against the order of the Lt. Governor, Delhi dated 8th November, 1985.
This Court by order dated 25th August, 1986 granted special leave limited to the following question.
"One of the questions raised by the learned counsel before us is whether the samples taken from 3 out of 80 bags of Khandsari could be treated as representative samples.
He has cited before us a judgment of the High Court where it has been held that they cannot be so treated.
We grant special leave limited to the question stated above.
We find no force in other Submissions.
In order to decide the above question we would mention facts in brief necessary in this regard.
In a raid in the business premises of the appellant on 28th February, 1980, the following bags of Khandsari (sugar) were seized in the presence of Shri Ram Niwas, sole proprie tor of the firm.
Khandsari 53 bags Khandsari (dust) 18 bags Khandsari (sulphur) 9 bags Total 80 bags Two samples each from all the three varieties of Khandsari were taken and three samples of sugar were sent for analysis to the public analyst.
The public analyst reported that the samples of sugar contained Sucrose 93.5%, 94.2% and 97.16% respectively.
The Collector passed an order confis cating the entire goods as the same were kept in contraven tion of the provisions of Delhi Sugar Dealers Licensing Order, 1963 (in short the 'Licensing Order ').
It is not necessary to mention the details of this order of confisca tion because the matter had gone upto the High Court and the case was ultimately remanded by the High Court of Delhi by order dated 27th March, 1984.
The High Court directed the Collector for denovo determination of the proceedings under Section 6A of the , in ac cordance with law.
The Collector (North) after remand gave a fresh show cause notice to the appellant on 21st May, 1984 setting forth the brief sequence of the proceedings and asking him to show cause as to why the entire stock of 80 bags of sugar seized in the case, be not confiscated to the State? The appellant appeared and Fred a written reply to the show cause notice.
The case was then heard at length and the Collector again passed an order confiscating the entire seized stock of 80 quintals of sugar.
An appeal fried against the aforesaid order was dismissed by the Lt. Gover nor, Delhi by order dated 8th November, 1985.
A writ peti tion filed against the order of the Lt. Governor was dis missed in limine by the High Court by order dated 20th December, 1985.
Hence this appeal.
141 Clause 2 (f) (i) of the Licensing Order defines sugar as under.
"Sugar means any form of sugar including Khandsari sugar containing more than 90% of Sucrose." Under the Licensing Order a person was entitled to keep only upto a maximum of 10 quintals of sugar, without a licence.
Admittedly the appellant was not having any li cence.
It was contended on behalf of the appellant that in order to prove that Khandsari was sugar under the Licensing Order, it was necessary to prove that it contained more than 90% of Sucrose.
It was submitted that the prosecution only took two samples each out of the three bags from the entire lot of 80 bags of Khandsari and this could at the most show that only 3 quintals of Khandsari was sugar and the same being less than 10 quintals, there was no violation of the Licensing Order.
It was submitted that it was necessary for the prosecution to prove that the appellant was in posses sion of more than 10 quintals of sugar and this could only be done by taking samples from all the bags of Khandsari if it wanted to show that other bags of Khandsari also con tained more than 90% bags of Sucrose.
It was also submitted that the possibility cannot be excluded that those bags from which samples were not taken, did not contain Sucrose more than 90%.
It was argued that the burden lay on the prosecu tion to prove that more than 10 quintals of sugar was found in the premises and then alone any order of confiscation could have been passed.
In support of the above contention reliance was placed on a judgment of learned Single Judge of Delhi High Court in Suraj Bhan Sharad Kumar vs Delhi Admin istration (Crl.
Revision No. 104 of 1980 decided on 25th September, 1980).
In the facts and circumstances of the present case the contention raised on behalf of the appellant has no force.
The admitted facts of the case are that at the time of seizure of the goods Shri Ram Niwas was present and the samples were taken in his presence.
Two samples each were taken separately from three different varieties of Khandsari at the instance of Shri Ram Niwas himself.
It was proved by the public analyst that all the three samples contained Sucrose more than 90%.
It was nowhere disputed nor suggest ed by Shri Ram Niwas at the time of taking samples or there after that the samples taken would not represent the correct quantity of Sucrose in those bags of Khandsari from which samples were not taken.
Shri Ram Niwas had filed a reply in writing, to show cause notice, but in such reply also no objection was taken as sought to be raised now.
In the facts and circumstances mentioned above if the Collector was satisfied that 80 quintals of sugar were found in the prem ises without licence.
it cannot be said that the order of confiscation passed by 142 the Collector was arbitrary or based on no material.
The decision of the learned Single Judge of Delhi High Court in Suraj Bhan Sharad Kumar vs Delhi Administration (supra) is totally distinguishable as in that case the dealer was having licence and the prosecution failed to prove that he was in possession of more than 1000 quintals of sugar.
In the case in hand before us the facts are entirely different.
As already mentioned above Only two samples each were taken from the three varieties, and all the three samples were found to contain more than 90% Sucrose.
A large quanti ty of 80 quintals of Khandsari was found in the premises, whereas only 10 quintals of sugar was allowed to be kept without licence.
Thus it was quite reasonable for the col lector to hold that there were more than 10 quintals of Khandsari having more than 90% Sucrose and this violated the Licensing Order.
Thus in the facts and circumstances of the present case we are fully satisfied that the Collector had enough materi al for his satisfaction that there was violation of the Licensing Order and there was sufficient justification for him to pass the order of confiscation.
The order of confis cation passed by the Collector is maintained and the appeal is dismissed.
During the course of arguments learned counsel for the appellant submitted that though a criminal prosecution is pending against the appellant Ram Niwas but no effective progress has been made in the case except filing of challan.
It appears to us that the State is not serious in pursuing the criminal proceedings and even otherwise more than 10 years have already elapsed to the alleged commission of the offence.
It would be against the interest of justice to further continue any criminal proceedings in the case.
We, therefore, direct to drop the criminal proceedings launched and pending against the appellant Shri Ram Niwas in the present matter.
T.N.A. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Under the provisions of Delhi Sugar Dealers Licensing Order 1963, a person was entitled to keep only upto a maxi mum of 10 quintals of sugar without licence and sugar means any form of sugar including Khandsari sugar containing more than 90% of Sucrose.
The appellant 's business premises were raided and 80 bags of sugar viz. 53 bags of Khandsari, 18 bags of Khand sari (dust) and 9 bags of Khandsari (sulphur) were seized in his presence.
Two samples each from all the three varieties of Khandsari were taken and three samples of sugar were sent for analysis to the public analyst, who reported that the samples contained sucrose 93.5%, 942% and 97.16% respective ly.
The Collector passed an order confiscating the entire seized stock of sugar as the same was kept without any licence.
Against the order of the Collector, the appellant filed an appeal before the Lt. Governor, Delhi which was dismissed.
The writ petition filed against the order of Lt. Governor was dismissed in limine by the High Court.
In appeal to this Court, it was contended on behalf of the appellant that (a) only two samples each out of the three bags were taken from the entire lot of Khandsari and this could at the most show that only three quintals of Khandsari was 'sugar ' and the same being less than 10 qtls.
, there was no violation of the Licensing Order: (b) it was necessary for the prosecution to prove that the appellant was in possession of more than 10 quintals of sugar and this could only be done by taking samples from all the bags of Khand sari if it wanted to show that other bags of Khandsari also contained more than 90% of sucrose; (c) the possibility cannot be excluded that those bags from which samples were not taken, did not contain sucrose more than 90%.
Dismissing the appeal, this Court, 139 HELD: A large quantity of 80 quintals of Khandsari was found in the appellant 's premises, whereas only 10 quintals of sugar was allowed to be kept without licence.
At the time of seizure of the goods two samples each were taken sepa rately from three different varieties of Khandsari at the instance of the appellant.
It was proved by the public analyst that all the three samples contained sucrose more than 90%.
it was not disputed by the appellant at the time of taking samples or thereafter that the samples taken would not represent the correct quantity of sucrose in those bags of Khandsari from which samples were not taken.
In his written reply to the show cause notice issued by the Collec tor no such objection was raised by the appellant.
In the circumstances of the ease if the Collector was satisfied that 80 quintals of sugar was found in the appellant 's premises without licence, it cannot be held that the order of confiscation passed by the Collector was arbitrary or based on no material.
It was quite reasonable for the Col lector to hold that there was more than 10 quintals of Khandsari having more than 90% sucrose and this violated the Sugar Licensing Order.
Therefore, there was sufficient justification for him to pass the order of confiscation.
Accordingly, the order of confiscation passed by the Collec tor is maintained.
[142 C, 141 F H, 142A C, D] Suraj Bhan Sharad Kumar vs Delhi Administration Criminal Revision No. 104 of 1980 decided on 25th September, 1980 by Delhi High Court distinguished.
In the instant case more than 10 years have already elapsed to the alleged commission of the offence.
Therefore, it would be against the interests of justice to further continue any criminal proceedings in the case.
Accordingly, it is directed that the criminal proceedings launched and pending against the appellant should be dropped.
[142 E]


judgement:
Appeal No. 3698 of 1991.
From the Judgment and Order dated 1.11.1990 of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 in Suit No. 309 of 1972.
Arun Jaitley, R.F. Nariman, R. Karanjawala, Mrs. M. Karanjawala, Ms. Nandini Gore and Ms. Aditi Choudhary for the appellant.
191 V.A. Bobde, U.A. Rao and B.R. Agarwala for the respondents.
The Judgment of the Court was delivered by THOMMEN, J.
Leave granted.
The appellant who is the defendant in Suit No. 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, was valid and binding on the parties, and in the absence of any challenge against the order made under Order XXI rule 23, Civil Procedure Code allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The High Court found that the decree was valid and in accordance with the provisions of Order XXIII rule 3, as amended by the C.P.C. (Amendment) Act, 1976.
The only question which arises for consideration is as regards the construction of Order XXIII rule 3, C.P.C. We shall read this provision, as amended by the C.P.C. (Amend ment Act, 19%, bracketing the newly added words: 23., R. 3 Compromise of suit where it is proved to the satisfaction of the court that a suit has been ad justed wholly or in part by any lawful agreement or compro mise, (in writing and signed by the parties) or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.
An agreement or compromise which is void or voidable under the , shall not be 192 deemed to be lawful within the meaning of this rule.
Mr. Arun Jaitley, appearing for the appellant, says that the High Court was wrong in holding that, notwithstanding the amendment of 1976 inserting the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person.
Any such construction would do violence to the provision as amended in 1976.
He says that the object of the amendment was to provide that no agreement or compromise adjusting wholly or in part a pending suit was valid unless such compromise was evidenced in writing and signed by the parties in person.
The expression 'parties ', he contends, means only parties and none else.
To read 'counsel ' into that expression, as done by the High Court, is to presume that the legislature failed to say what it intended to say and to attempt to supply the omission by correcting the deficiency.
This cannot be done.
The legislature, on the other hand, made its intention explicit by providing that an agreement or compromise would form the basis of a decree only if the consensus was reduced to writing and signed by the parties.
Neither an agent nor a pleader could act as a substitute for a party to sign the agreement or compromise.
A decree based on a compromise not signed by the parties in person is a nullity and is incapable of execution.
Mr. Jaitley submits that if the legislature had intended to authorise counsel independently to sign the memorandum containing the terms of settlement, and allow a decree to be passed in terms thereof, the legislature would have said so by further adding the words 'or their counsel '.
In the absence of any such expression, it cannot be presumed that the legislature intended more than what it said and that 'party ' included counsel.
This argument, Mr. Jaitley says, is fortified by the fact that for the first time the legis lature has allowed a decree to be passed on the basis of compromise relating to matters concerning the parties, but extending beyond the subject matter of the suit.
Such a wide power to compromise was most unlikely to be left in the hands of counsel, and it is, therefore, necessary to read the provision narrowly so as to read it as it now stands by adopting a strictly literal construction.
Mr. V.A. Bobde appearing for the respondents, on the other hand, submits that it was always understood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, there fore, has express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do 193 whatever is necessary in connection with the conduct of his suit including adjustment of the suit by agreement or com promise.
In the absence of any such limitation or restric tion of his authority, counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII rule 3 as it now stands.
Any such decree, he says, is perfectly valid.
Mr. Bobde submits that in the absence of express words to the contrary, 'party ', in the context of proceedings in court, must necessarily include his recognised agent or pleader.
This construction is warranted by the provisions of Order III, C.P.C. That this has been the consistent view adopted by courts in the construction of the expression 'party ' in the context of proceedings in court is clear from the decisions of courts, and it is most unlikely that the legislature would have, by the amendment of 1976, limited the scope of 'party ' so as to exclude the traditional role of the recognised agent or counsel.
The legislative drafts men are presumed to know the law of the land as it stood then, and, if they had intended to deviate therefrom, they would have explicitly stated so rather than leave it to future judicial construction.
The Statement of Objects and Reasons for the amendment, he says, does not support the view canvassed by the appellant.
Sub clause (iii) of clause 77 of the Statement of Ob jects and Reasons concerning the C.P.C. (Amendment) Act, 1976 states: is provided that an agreement or compromise under rule 3 should be in writing and signed by the parties.
This is with a view to avoiding the setting up of oral agreements or compromises to delay the progress of the suit. . . . . . . .
In view of the words 'so far as it re lates to the suit ' in rule 3, a question arises whether a decree which refers to the terms of a compromise in respect of matters beyond the scope of the suit is executable or whether the, terms of the decree relating to the matters outside the suit can be enforced only by a separate suit.
The amendment seeks to clarify the position.
" The Statement of Objects and Reasons indicates that the amendment is intended to clarify that a compromise has to be in writing signed by the parties to avoid delay which might arise from the uncertainties of oral agreements.
The amendment has also clarified that the terms of compromise are permitted to include all matters relating to the parties to the 194 suit even if such matters fall outside the subject matter of the suit.
The legislature has thus sought to attain certainty and clari ty and widen the scope of compromise.
The fundamental question is, in the absence of any contrary indication in the Statement of Ob jects and Reasons, can it be stated that the legislature has intended to exclude a pleader or a recognised agent from the expression 'party ' when it has always been understood, as explicitly stated in Order 1II rule 1, that appearance of a party in court may be in person or by his recognised agent or pleader.
In the absence of any provision to the con trary, can it be stated that the legislature, when using the expression 'parties ' in rule 3 of Order XXIII, limited it to parties in person and excluded their duly recognised agents or counsel ? The role of counsel in Court in England is described in Halsbury 's Laws of England, 4th Ed. Vol.3, paras 1181 & 1183, as follows: "1181.
Counsel 's authority.
At the trial of an action, counsel 's authority extends, when it is not expressly limited, to the action and all matters incidental to it and to the con duct of the trial, such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross examining or not cross examining witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consent ing to a reduction of damages.
The client 's consent is not needed for a matter which is within the ordinary authority of counsel: thus if, in court, in the absence of the client, a compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound.
If an action is settled in court in the presence of the client, his consent will be inferred, and he will not be heard to say that he did not understand what was going on . . " The implied authority of counsel in England is, howev er, confined to matters failing within the subject matter of the suit.
In the absence of express authority, counsel cannot enter into compromise on collateral matters.
"The authority of counsel to compromise is limited to the issues in the action: a compro mise by counsel affecting collateral matters will not bind the client, unless he expressly assents; and it may be that a barrister has no authority to reach a binding settlement or compromise out of court. "(Halsbury ibid) 195 A compromise is, however, not binding and is liable to be set aside in circumstances which would invalidate agree ments between the parties.
"A compromise by counsel will not bind the client, if counsel is not apprised of facts the knowledge of which is essential in refer ence to the question on which he has to exer cise his discretion, for example that the terms accepted had already been rejected by the client.
Where counsel enters into a com promise in intended pursuance of terms agreed upon between the clients, and, owing to a misunderstanding, the compromise fails to carry out the intentions of one side, the compromise does not bind the client, and the court will allow the consent to be withdrawn.
Where, acting upon instructions to compromise, counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel and the terms are thought by one party to the more extensive than the other party intends them to be, there is no agreement on the subject matter of the compromise, and the court will set it aside.
But a person who has consented to a compromise will not be allowed to withdraw his consent because he subsequently discovers that he has a good ground of defence? (Halsbury, ibid, para 1183).
Counsel 's consent in certain circumstances such as duress or mistake may not bind the client.
"If counsel 's consent is given under duress, the client will not be bound, as when counsel, acting for a client alleged to be of unsound mind but believing him to be of sound mind, consented to certain terms for the withdrawal of Court of Protection proceedings against the client because of his fear of the inconven ience and iII health likely to arise to the client from confinement.
A compromise or order made by consent by counsel for a minor or other person under disability is not binding on the client, unless it is sanctioned by the court as being for the benefit of the client.
The court cannot, however, enforce a compromise on a minor against the opinion of his counsel." (Halsbury, ibid) One of the early English authorities on this point is Pa tience Swinfen 196 vs Lord Chelmsford ; at 922; S.C. 29 L. J. (E.x) 382.
Delivering the judgment of the Court, Pollock, C.B., stated: ".
We are of opinion, that although a coun sel has complete authority over the suit, the mode of conducting it, and all that is inci dent to it such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as,.
in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial we think he has not, by virtue of his retainer in the suit, any power over matters that are collat eral to it . . ".
In Matthews vs Munster, at 144, Lord Esher M.R. stated: .
The instances that are given shew that one of the things that counsel may do, so long as the request of the client to him to act as advocate is in force, is to assent to a verdict for a partic ular amount and upon certain conditions and terms; and the consent of the advocate to a verdict against his client and the withdrawing of imputations is a matter within the expres sion 'conduct of the cause and all that is incidental to it. ' If the client is in Court and desires that the case should go on and counsel refuses, if after that he does not withdraw his authority to counsel to act for him, and acquaint the other side with this, he must be taken to have agreed to the course proposed.
This case is a still stronger one, for the client was not present, and it is not pretended that he ever withdrew his authority to counsel, but he now comes forward and asks that because he does not like what has been done it should be set aside as between himself and his opponent.
This the Court will not do, and this appeal must be dismissed.
" See also Rondel vs Worsley, [1965] 1 Q. B. 443, 502, Per Lord Denning M.R.
If this is the position of counsel in England, Scotland and Ireland, is his position the same in India in the con duct of cases in Court ? That the answer is affirmative, there is high judicial authority.
In (Babu) Sheonandan Prasad Singh & Ors.
vs Hakim Abdul Fateh Mohammad Reza & .Anr., AIR 1935 PC 119, 121, Lord Atkin, speaking for 197 the Board, states: ".
As was laid down by this Board in 57 IA 133 (AIR 1930 PC 158) counsel in India have the same implied authority to compromise an action as have counsel in the English Courts.
But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined.
In the first instance the authority is an actual authority implied from the employment as counsel.
It may however be withdrawn or limited by the client: in such a case the actual authority is destroyed or restricted; and the other party if in igno rance of the limitation could only rely upon ostensible authority.
In this particular class of contract however the possibility of suc cessfully alleging ostensible authority has been much restricted by the authorities such as and which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a com promise made by him contrary to the restric tion even though the lack of actual authority is not known to the other party.
" Lord Atkin emphasises the need to rely on express au thority, rather than implied authority, particularly because of easier and quicker communication with the client.
He says: ".
In their Lordships ' experience both in this country and in India it constantly hap pens, indeed it may be said that it more often happens, that counsel do not take upon them selves to compromise a case without receiving express authority from their clients for the particular terms; and that this position in each particular case is mutually known between the parties.
In such cases the parties are relying not on implied but on an express authority given adhoc by the client . . ".
(ibid, page 121) However, collateral matters were understood to be beyond the scope of compromise.
Lord Atkin says: "If the facts are as their Lordships assume, the matter compromised was in their opinion collateral to the suit and not only would it not be binding on the parties, but it would in any case be a matter in respect of which the Court in pursuance of 198 O. 23, R. 3, should not make a decree." (Page 122) Referring to the role of counsel in India and comparing him with his counterpart in Britain, Lord Atkin in Sourendra Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 PC 158, says: " . .
Their Lordships regard the power to compromise a suit as inherent in the position of an advocate in India.
The considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland, apply in equal measure to India.
It is a power deemed to exist be cause its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client.
" Counsel 's power to compromise is vital to the defence of his party while engaged on his behalf in the thick of a legal battle in Court.
Lord Atkin observes: "The advocate is to conduct the cause of his client to the utmost of his skill and under standing.
He must in the interests of his client be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimina tion.
These powers in themselves almost amount to powers of compromise: one point is given up that another may prevail.
But in addition to these duties, there is from time to time thrown upon the advocate, the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client 's behalf to receive or pay something less than the full claim or the full possible liability.
Often the decision must be made at once . . "(ibid, page 161) Emphasising the apparent authority of counsel, and the raison d 'etre of such authority being the paramount interest of his client, and not an appandage of office, Lord Atkin states: "The apparent authority is derived from the known existence of the implied authority . . 199 First, the implied authority of counsel is not an appandage of office, a dignity added by the Courts to the status of barrister or advocate at law.
It is implied in the inter ests of the client, to give the fullest bene ficial effect to his employment of the advo cate.
Secondly, the implied authority can always be countermanded by the express direc tions of the client.
No advocate has actual authority to settle a case against the ex press instructions of his client.
If he con siders such express instructions, contrary to the interests of his client, his remedy is to return his brief.
Their Lordships are unable to see why the above considerations should not apply to an advocate in India, whose duties to his client in the conduct of a suit in no wise differ from those of advocates in England, Scotland and Ireland . . ".
(Page 161) Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
Referring to section 375 of the Code of Civil Procedure (Act XIV of 1882), (similar to Order XXIII rule 3 CPC as it stood prior to the amendment of 1976), Lord Buckmaster, in Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79, states: " . .
In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then to confine its operation to so much of the subject matter of the suit as is dealt with by the agreement . . although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation the decree taken as a whole would include the agreement.
This in fact is what the decree did in the present case.
It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent its being received in evidence of its con tents".
(Page 81) In Ram Juwan vs Devendra Nath Gupta, AIR 1960 Madhya Pradesh 200 280, the High Court states: "Where a consent decree contains terms that do not relate to the suit . . such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit".
(Page 282) See also Vishnu Sitaram Auchat vs Ramachandra Govind Joshi, AIR 1932 Bombay 466 and Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456.
In Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr., , the High Court points out that a consent decree does not stand on a higher footing than a contract between the parties.
The Court always has the jurisdiction to set aside a consent decree upon any ground which will invalidate an agreement between the parties.
In the absence of any such ground, the consent decree is bind ing on the parties.
Courts in India have consistently recognised the tradi tional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients.
Speak ing for a Full Bench of the Kerala High Court in Chengan Souri Nayakam vs A.N. Menon, AIR 1968 Kerala 213, K.K. Mathew, J. (as he then was) observed: "The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel.
In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary impli cation.
In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crys tallised through usage.
It is on a par with a trade where the usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement." (p.215).
About the special position of the advocate, the learned Judge stated: Counsel has a tripartite relationship; one with the pub lic, another with the court, and the third with his client.
That is a unique feature.
Other professions or callings may include one or two of these relationships but no other has the triple duty.
Counsel 's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out 201 as practicing, however, unattractive the case or the client." (p. 216) See also Jiwibai vs Ramkumar Shriniwas Murarka Agarwala, AIR 1947 Nagpur 17; Govindammal vs Marimuthu Maistry & Ors., AIR 1959 Mad. 7 and Laxmidas Ranchhoddas & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Born.
These principles were affirmed by this Court in Jamila bai Abdul Kadar vs Shankerlal Gulabchand & Ors.
[1975] Supp.
SCR 336.
Referring to a number of decisions on the point, V.R. Krishna Iyer, J. observes: " . .
Those who know how courts and counsel function will need no education on the jurisprudence of lawyer 's position and powers.
Of course, we hasten to enter a caveat.
It is perfectly open to a party, tike any other principal, to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensi tive matters, the choice being his, as the master.
If the lawyer regards these fetters as inconsistent with his position, he may refuse or return the brief.
But absent speaking instructions to the contrary, the power to act takes in its wings the right and duty to save a client by settling the suit if and only if he does so bona fide in the interests and for the advantage of his client . . "(Page 346) See also Monoharbahal Colliery Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632.
After the amendment of 1976, a consent decree, as seen above, is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit, but concerning the parties.
The argument of the appellant 's counsel is that the legislature has intended that the agreement or compromise should be signed by the parties in person, because the responsibility for compromising the suit, including matters falling outside its subject matter, should be borne by none but the parties themselves.
I1 this contention is valid, the question arises why the legislature has, presumably being well aware of the consistently fol lowed practice of the British and Indian Courts, suddenly interfered with the time honoured role of lawyers in the conduct of cases without specifically so stating, but by implication? Can the legislature be presumed to have funda mentally altered the position of counsel or a recognised agent, as traditionally understood in the system of law and practice followed in India and other 'common law countries ' without expressly and directly so stating? There is, 202 no indication in preparatory work such as the 54th Report of the Law Commission dated 6.2.1973 or in the Statement of Objects and Reasons or in the words employed by the legisla ture that the concept of 'agents and pleaders ' of Order III, C.P.C. was in any manner altered.
There is no warrant for any such presumption.
It is a rule of legal policy that law should be altered deliberately rather than casually.
Legislature does not make radical changes in law by a sidewind, but only by measured and considered provisions '.
(Francis Bennion 's Statutory Interpretation, Butterworth, 1984, para 133).
As stated by Lord Devlin in National Assistance Board vs Wilkinson, "It is a well established principle of con struction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion." Statutes relating to remedies and procedure must receive a liberal construction 'especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of law '.
See Crawford 's Statutory Construc tion, para 254.
The object of the amendment was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive con struction of the amended provisions.
The legislative inten tion being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
There is no reason to assume that the legislature in tended to curtail the implied authority of counsel, engaged in the thick of proceedings in court, to compromise agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract gener ally, the legislature does not interfere except when war ranted by public policy, and the legislative intent is expressly made manifest There is no such declaration of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active.
Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the 203 inquisitorial traditions of the 'civil law ' of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant.
(See Rene David, English Law and French Law Tagore Law Lectures, 1980). 'The civil law ' is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language and there is no indication,.
whatever, that Parliament was addressing itself to the task .of assim ilating or incorporating the rules and practices of that system into our own system of judicial administration.
The Indian legal system is the product of history.
It is rooted in our soil; nurtured and nourished by our culture, languages and traditions; fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage: it is not a mere copy of the English common law; though inspired and strengthened, guided and enriched by concepts and precepts of justice, enquiry and good con science which arc indeed the hallmark of the common law.
In the words of M.C. Setalvad: " . . the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub continent inhabited by nearly four hundred million people.
The law and jurisprudence of this vast community and its pattern of judi cial administration are in many matters dif ferent from those of England in which they had their roots and from which they were nurtured.
Yet they bear the unmistakable impress of their origin.
The massive structure of Indian law and jurisprudence resembles the height, the symmetry and the grandeur of the common and statute law of England.
In it one sees English law in the distant perspective of a new atmosphere and a strange clime.
" Speaking of the common law in the wider sense, the learned author continues: ".
But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions, outlook and techniques in estab lishing, maintaining and developing the judi cial system.
When, therefore, I speak of the common law in India I have in view comprehen sively all that is of English origin in our system of law.
In that wide meaning 204 the expression will include not only what in England is known strictly as the common law but also its traditions, some of the princi ples underlying the English statute law, the equitable principles developed in England in order to mitigate the rigours of the common law and even the attitudes and methods pervad ing the British system of the administration of justice." The Common Law in India, 1960 The Hamlyn Lectures, Twelth Series, pp.1 4.
After the attainment of independence and the adoption of the Constitution of India, judicial administration and the constitution of the law courts remained fundamentally un changed, except in matters such as the abolition of appeals to the Privy Council, the constitution of the Supreme Court of India as the apex court, the conferment of writ jurisdic tion on all the High Courts, etc.
The concept, structure and organisation of Courts, the substantive and procedural laws, the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contra distinction to those prevailing in the civil law or other systems of law.
In our own system of judicial administration, if strains have developed and cracks have appeared by the stresses and 2pressures of the time; if aberrations have become too obvious to be ignored or too deeprooted to be corrected by an internal mechanism; if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system; it is a matter exclusively for Parliament to consider; but the amendment in question is not addressed to that purpose.
Aberrations there always have been in every system of administration; but whether they are merely peripheral or transient in character mere ripples on a placid pool or symptomatic of deeper malady requiring structural modifica tion by prompt legislative intervention is a matter of grave significance for the jurists, sociologists and political scientists to ponder over.
So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not express ly, but impliedly reduced counsel 's role or capacity to represent his client as effectively as in the past.
On a matter of such vital importance, it is most unlikely that Parliament would have resorted 205 to implied legislative alteration of counsel 's capacity or status or effectiveness.
In this respect, the words of Lord Atkin in Sourendra (supra) comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant: There are no local conditions which make it less desirable for the client to have the full benefit of an advocate 's experience and judg ment.
One reason, indeed, for refusing to imply such a power would be a lack of confi dence in the integrity or judgment of the Indian advocate.
No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them . . (Page 161) Similar is the view expressed by the Rajasthan High Court in Mohan Bai vs Jai kishan, AIR ; Smt.
Mohan Bai vs Smtjai kishan & Ors., AIR and by the Gujarat High Court in Nadirsha Hirji Baria & Ors.
vs Niranjankumar alias Nireshkumar Dharamchand Shah & Ors.
, A contrary view has been ex pressed by the Andhra Pradesh High Court in Kesarla Raghu ram.
vs Dr. Narsipalle Vasundara, AIR 1983 Andhra Pradesh 32, and it does not commend itself to us.
We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immedi ate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay.
In these days of easier and quicker communication, such contingency may seldom arise.
A wise and careful coun sel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingen cies in order that neither his authority nor integrity is ever doubted.
This essential precaution will safeguard the personal reputation of counsel as well as uphold the pres tige and dignity of the legal profession.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents.
Any 206 such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.
To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non resident persons.
It has always been universally understood that a party can always act by his duly authorised representative.
If a power of attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client.
Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court.
If the legislature had intended to make such a funda mental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.
Accordingly, we are of the view that the words 'in writing and signed by the parties ', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order II1 rule 1 C.P.C.: "any appearance application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person".
(emphasis supplied) In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be exe cuted.
The notice was accordingly made absolute by Order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
As stated by this Court in Shankar Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Son takke & Ors.; , ".
It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum.
The com 207 promise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata '.
" (Page 355) S.R.
Das, C.J., in Sailendra Narayan Bhanja Deo vs The State of Orissa, ; , states: ". a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case . ".
(Page 351) A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
As stated by Spencer Bower & Turner in Res Judicata Second Edition, page 37: "Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties .
Accordingly, judgments, orders, and awards by consent have always been held no less efficacious as estoppels than other judgments, orders or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not representation by conduct, rather than res judicata . . . . ".
See also Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuccess ful challenge by reason of delay, estoppel or res judicata, and was rightly so held by the High Court.
Accordingly, we see no merit in this appeal.
It is dismissed.
However, in the circumstances of the case, we do not make any order as to costs.
V.P.R. Appeal dismissed.

summary/full:
Before this Court, the appellant defendant challenged the judgment of the High Court which held that the decree made against the defendant 'in terms of a compromise in writing and signed by the counsel representing the parties was valid and binding on the parties, and that in the ab sence of any challenge against the order made under Order XXI, rule 23, Civil Procedure Code, allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The appellant contended that the High Court was wrong in holding that, notwithstanding the amendment of 1976 insert ing the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person, and that a decree based on a compromise not signed by the parties in person was a nullity and was incapable of execution.
The respondents submitted that it was always under stood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, therefore, had express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do whatever was necessary in connection with the conduct of his suit including adjustment of the suit by agreement or compromises.
188 Dismissing the appeal, this Court, HELD:.
Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
[199 C D] 2.
After the amendment of 1976, a consent decree, is executable in terms thereof, even if it comprehends matters failing outside the subject matter of the suit, but concern ing the parties.
[201 E] 3.
The object of the amendment of Order XXIII, Rule 3, C.P.C. was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive construction of the amended provisions.
The legislative intention being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
[202 D E] 4.
There is no reason to assume that the legislature intended to curtail the implied authority of counsel, en gaged in the thick of proceedings in court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relation ship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest There is no such declara tion of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradi tion of an ever alert, independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral heating which is in sharp contrast to the inquisitorial traditions of the 'civil law 'of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are 189 considered relatively insignificant.
[202 E H] 5.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to com prehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly autho rised agents.
Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and en largement of the scope of compromise.
[205 F H] 6.
A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
[207 B] 7.
In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed.
The notice was accordingly made absolute by order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
[206 F G] 8.
The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuc cessful challenge by reason of delay, estoppel or res judi cata.
[207 E F] Halsbury 'section Laws of England, 4th Ed. Vol.3, Paras 1181 & 1183; Francis Bennion 's Statutory Interpretation, Butter worths, 1984, para 133; Crawford 's Statutory., Construction, Para 254; Rene David, English Law and French Law Tagore Law Lectures, 1980; Spencer Bower to Turner in Res 190 Judicata, Second Edition, Page 37; The Common Law in India 1960 The Hamlyn Lectures, Twelfth Series.
pp 1 4, referred to.
Patience Swinfen vs Lord Chelmsford, [1860]5 H & N 890 at 912; S.C.(Ex.) 382; Mathews vs Munster, [1887] 20 Q.B. 141 at 144; Rondel vs Worsley, [1965] 1 Q.B. 443,502; (Babu) Sheonandan Prasad Singh &Ors.
vs Hakim Abdul Fateh Mohammed Reza & Anr., AIR 1935 P.C. 119,121; Sourendera Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 P.C. 158; Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79; Jamilabai Abdul Kadar vs Shankerlal Gulabchand & Ors., [1975] Supp.
SCR 336; Monoharbahal Colliery, Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632; National Assistance Board vs Wilkin son, ; Sailendra Narayan Bhania Deo vs The State of Orissa, ; ; Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; , Shankor Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Sontakke & Ors. ; , referred to.
Ram Juwan vs Devendra Nath Gupta, AIR 1960 M P. 280; Vishnu Sitaram Auchat vs Ramchandra Govind Joshi, AIR 1932 Bombay 466; Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456; Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr, ; Chengan Soun, Nayakam vs A.N. Menon, AIR 1968 Kerala 213; Jiwibai vs Ramkumar Shrini was Murarka Agarwala, AIR 1947 Nagpur 17; Govindamreal vs Marimuthu Maistry & Ors., AIR 1959 Mad 7; Laxmidas Ranchhod das & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Bombay 54; Mohan Bat vs Jai Kishan, AIR ; Smt.
Mohan Bat vs Smt.
Jai kishan & Ors., AIR , Nadirsha Hirji Bana & Ors.
v Niranjanlkumar alias Nireshku mar Dharamchand Shah & Ors., , approved.
Kesarla Raghuram vs Dr. Narsipalle Vasundara, A.I.R. 1983 A .P. disapproved.