judgement:
tition (CRL.) No. 1218 of 1990.
(Under Article 32 of the Constitution of India).
John Joseph and T.G.N. Nair for the Petitioner.
A.D. Giri, Solicitor General, Ashok Bhan, Ms. A. Subhashini and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by VERMA J.
This writ petition under Article 32 of the Constitution of India is by the mother of the detenu Noor alias Babu to quash the detention order F. No. 801/1/90 PITNDPS dated 25.1.1990 passed under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short 'PIT 'NDPS Act ') and the order of confirmation F. No. 801/1/90 PITNDPS dated 24.4.1990 'passed under Section 9(f) read with Section 10(2) of the PITNDPS Act, by the Central Government directing detention of the detenu for a period of two yeare w.e.f. 30.1.1990.
The only argument advanced in support of this writ petition is infraction of Article 22(5) of the Con 424 stitution of India.
The facts material for the point raised are stated hereafter.
The detenu was arrested from his family estate at Kochuveetil House, Kuthugal, Udumpanchola Taluk, Idikki District, Kerala on 19.10 1989 on the accusation that he and his brothers were involved in extensive illicit cultivation of ganja plants (Cannabis Sativa) in violation of the provisions of (in short 'NDPS Act '), He was produced before the Judicial Magistrate who rejected his bail application.
The Sessions Judge also rejected the bail application once but late, granted conditional bail.
Thereafter, the detention order dated 25.1.1990 was served on the detenu on 30.1.1990.
It was stated therein that even though prosecution of the detenu was likely to be initiated under the NDPS Act, there was likelihood of the detenu indulging in cultivation and production of narcotic drugs (ganja) on the detenu being released on bail on account of which there was compelling necessity to detain him under the PITNDPS Act.
The detenu was informed that he had a right to make representation to the detaining authority, Central Government and the Central Advisory Board against the detention order.
The mode of address of the representation to the Central Government and the Central Advisory Board was also indicated in the detention order along with the grounds of detention in accordance with Article 22(5) of the Constitution of India.
The detenu 's case was referred by the Central Government to the Central Advisory Board on 2.3.1990.
During pendency of the reference before the Advisory Board, the detenu made his representation on 24.3.1990 and addressed it to the Advisory Board.
The Advisory Board considered the reference relating to the detenu made by the Central Government and also the detenu 's representation submitted to it.
The Advisory Board, gave the opinion that there was sufficient cause to justify his preventive detention.
The Central Government then made the order dated 24.4.1990 confirming his detention and directed that the detenu Noor alias Babu be detained for a period of two years w.e.f. 30.1.1990.
It is admitted that the Advisory Board considered the detenu 's representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu.
It is also admitted that the Central Government made the order of confirmation dated 24.4.1990 on receipt of the opinion of the Advisory Board, but there was no independent consideration of the detenu 's representation by the Central Government at any time.
In the counter affidavit filed initially by Shri A.K. Roy, Under Secretary to 425 the Government of India, this fact was not clearly stated and, therefore, we directed an additional affidavit to be filed.
In the additional affidavit filed by Shri A.K. Roy, it has not been disputed that the Central Government did not at any time consider independently the detenu 's representation addressed to and given to the Advisory Board.
In the additional affidavit, the stand of the Central Government in this behalf has been stated thus: ".
Since the detenu in the present case has not made any representation to the Central Government, the assertion in para 2 of the grounds of petition that no opportunity was afforded by the Central Government to the said detenu is vehemently denied.
The question of consideration of a representation and providing of an opportunity would only arise when a representation is duly made to the Central Government.
" On the above facts, the question is: Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government 's omission to consider the detenu 's representation independent of its consideration by the Advisory Board? The Central Government 's stand is that the detenu 's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government.
The Constitutional mandate in Article 22(5) was considered recently by a Constitution Bench in K.M. Abdulla Kunhi and B.L. Abdul Khader vs Union of India and Ors., State of Karnataka and Ors., JT , in view of some conflict in earlier decisions of this Court regarding the detaining authority 's obligation to consider the detenu 's representation independently of the Advisory Board 's duty in this behalf.
The Constitution Bench held as follows: "It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.
Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government 's obligation to refer the 426 case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government.
It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
It has to consider the representation on its own without being influenced by any such view of the Board.
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references.
The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law.
The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case (sic) for detention.
The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government.
The right to have the representation considered by the Government, is safeguarded by cl.
(5) of Article 22 and it is independent of the consideration of the detenu 's case and his representation by the Advisory Board under cl.
(4) of article 22 read with Section 8(c) of the Act.
(See: Sk.
Abdul Karim & Ors.
vs State of West Bengal, [ ; ; Pankaj Kumar Chakrabarty & Ors.
vs State of West Bengal, [1970]1 SCR 543; Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr., [ ; ; B. Sundar Rao and Ors.
vs State of Orissa, [ 1; John Martin vs State of West Bengal, 1 1; section K. Sekawat vs Stale of West Bengal; , and Haradhan Saha & Anr.
vs State of IVest Bengal and Ors.
, ; (emphasis supplied) It is thus clear that the obligation of the Government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government.
Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board.
In short, the detenu 's right to have the representation considered by the Government under Article 22(5) is independent of the consideration of the detenu 's case and his representation by the Advi 427 sory Board.
This position in law is also not disputed before us.
The learned Solicitor General, however, contended that in the present case there being no representation addressed to the Central Government, the only representation made by the detenu being addressed to the Advisory Board during pendency of the reference, there was in fact no representation of the detenu giving rise to the Central Government 's obligation to consider the same.
The question is: Whether this contention can be accepted in the face of the clear mandate in Article 22(5) of the Constitution? It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion.
In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board.
The question, therefore, is: Whether one of the requirement of consideration by Government is dispensed with when the detenu 's representation instead of being addressed to the Government or also to the Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government? On principle, we find it difficult to uphold the teamed Solicitor General 's contention which would reduce the duty of the detaining authority from one of substance to mere form.
The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty.
It is more so since the liberty involved is of a person in detention and not of a free agent.
Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible.
Article 22(5) speaks of the detenu 's 'representation against the order ', and imposes the obligation on the detaining authority.
Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detain 428 ing authority.
Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board 's role being merely advisory in nature without the power to make any order itself.
It is not as if there are two separate and distinct provisions for representation to two different authorities viz. the detaining authority and the Advisory Board, both having independent power to act on its own.
It being settled that the aforesaid dual obligation of consideration of the detenu 's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it.
It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General.
The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both.
The mode of address is only a matter of form which cannot whittle down the requirement of the Constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.
We are, therefore, unable to accept the only argument advanced by the learned Solicitor General to support the detention.
On this conclusion, it is not disputed that there has been a breach by the Central Government of its duty under Article 22(5) of the Constitution of India to consider and decide the representation independently of the Advisory Board 's opinion.
The order of detention dated 25.1.1990 as well as the order dated 24.4.1990 of its confirmation passed by the Central Government are, therefore, quashed.
This shall not, however, affect the detenu 's prosecution for the alleged offence and it shall also not be construed as a direction to release him in case he is in custody as a result of refusal of bail.
The writ petition is allowed, accordingly.
G.N. Petition allowed.

summary/full:
The petitioner 's son was arrested on 19.10 1989 on the accusation that he and his brothers were involved in extensive illicit cultivation of ganja plants in violation of the provisions of (NDPS Act).
The Magistrate before whom he was Produced, rejected the bail application.
The Sessions Court granted conditional bail.
The detention order dated 25.1.1990 was served on the detenu on 30.1.1990.
The order stated that though prosecution was likely to be initiated under the NDPS Act, there was every likelihood of his continuing the cultivation of ganja plants and thus there was a compelling reason to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
The detenu was informed of his right to make a representation to the detaining authority, Central Government and the Central Advisory Board against the detention order.
The mode of representation was also indicated along with the grounds of detention, in accordance with Article 22(5) of the Constitution of India.
In accordance with the procedure, the Central Government referred the case to the Central Advisory Board.
During the pendency of the reference, the detenu made a representation to the Advisory Board.
The Advisory Board considered the reference along with the detenu 's 422 representation and came to the conclusion that there was sufficient cause to justify his preventive detention.
Thereafter, the Central Government made an order dated 24.4.1990 confirming its earlier order and directing his detention for a period of two years.
In the present Writ Petition, the mother of the detenu prayed for quashing of the detention order contending that there has been infraction of the guarantee under Article 22(5) of the Constitution as a result of the Central Government 's omission to consider the representation of the detenu, independent of its consideration by the Advisory Board.
Petitioner also challenged the stand of the Central Government that there was no obligation on it to consider the representation of the detenu independently since the same was addressed to the Advisory Board and not to the Central Government.
Allowing the Writ Petition, this Court, HELD: 1.
The obligation of the Government to consider the representation is different and in addition to the obligation of the Advisory Board to consider it at the time of hearing the reference before giving its opinion to the Government.
Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board.
The detenu 's right to have the representation considered by the Government under Article 22(5) of the Constitution is independent of the consideration of the detenu 's case and his representation by the Advisory Board.
[426G H] K.M. Abdulla Kunhi and B.L. Abdul Khader vs Union of India and Ors.
, State of Karnataka and Ors., JT ; relied on.
Any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority.
The order of detention is by the detaining authority and so also the order of its revocation of the representation is accepted, the Advisory Board 's role being merely advisory in nature without the power to make any order itself.
It is not as if there are two separate and distinct provisions for representation to two different authorities viz., the detaining authority and the Advisory Board, both having independent power to act on its own.
(427G H; 428A B] 423 3.
It being settled that this dual obligation flows from article 22(5) when only one representation is made and addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it.
So long as there is a representation made by the detenu against the order of detention, the dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both.
The mode of address is only a matter of form which cannot whittle down the requirement of the Constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.
[428B El 4.
In the instant case, there has been a breach by the Central Government of its duty under Article 22(5) of the Constitution to consider and decide the representation independently of the Advisory Board 's opinion.
The order of detention dated 25.1.1990 as well as the order dated 24.4.1990 of its confirmation passed by the Central Government are quashed.
[428F G]


judgement:
Civil Appeal No. 740 of 1978.
From the Judgment and Decree dated 18.3.1975 of the Andhra Pradesh High Court in C.C.C.A. No. 106 of 1969.
G.A. Shah, V.J. Francis and N.M. Popli for the Appellant.
S.B. Bhasme, P.K. Pillai and Dilip Pillai for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Although the leave granted by this Court is limited to the question whether the plaintiff is entitled to an amount of Rs.75,000 which according to him he had actually advanced and the respondents had received for the purpose of prosecuting their litigation, and, therefore, the issue to be answered lies within a narrow 331 compass, it is necessary to state the relevant facts briefly to understand correctly the significance of the question to be answered.
Nawab Salar Jung III, a celebrity of the erstwhile State of Hyderabad expired on March 2, 1949 leaving behind him no issue but a vast estate.
As was expected, several persons came forward claiming to be his heirs, and among them were Sajjid Yar Jung and Turab Yar Jung who claimed to be his first cousins.
The Nizam by a notification of May 9, 1949, appointed a Committee to administer the estate of the late Nawab Salar Jung.
On the merger of the Hyderabad State, the Central Government by the , continued the Committee and also provided that no suit or other legal proceeding for the enforcement of any right or remedy in respect of any asset, shall be instituted in any court by any person other than the Committee except with the previous consent of the Central Government.
In the meanwhile, on May 31, 1949, the Nizam had already appointed a Commission to enquire into the question of succession to the estate, and one of the questions referred to the Commission was whether the Jagir of the late Nawab Salar Jung escheated to the Government and another was the ascertainment of his heirs.
The Commission was unable to proceed with the inquiry as some of the claimants filed a writ petition in the High Court of Andhra Pradesh challenging the jurisdiction of the Commission to enquire into the question of succession.
The High Court, by its decision of September 23, 1952 held that the Commission was not the proper forum for determining the question of succession and directed that the management of the estate should remain with the Committee until the question was settled by a Civil Court.
The question was ultimately settled by compromise between the various claimants including the Government.
The compromise was incorporated in a decree dated March 5, 1959 passed in a suit being Suit No. O.S. 13/58 which was filed by some of the claimants.
The present proceedings are an offshoot of the said suit.
Sajjid Yar Jung who claimed to be one of the first cousins of the late Nawab Salar Jung did not have the wherewithal to establish his claim to a share in the estate.
He approached the plaintiff who was a businessman of Bombay for financial help to enable him to establish his claim.
According to the plaintiff, he agreed to do so and Sajjid Yar Jung agreed to return all amounts to be advanced to him from time to time and also to give the plaintiff one anna share in the amount that 332 would be received by him from the estate.
The agreement was executed in writing on June 27, 1952 which is the subject matter of the present proceedings.
Pursuant to this agreement Sajjid Yar Jung and his agents drew large amounts from the plaintiff from time to time, totalling to about Rs.75,000.
Sajjid Yar Jung expired before the plaintiff received his share of the amount as per the agreement but after Sajjid Yar Jung successfully established his claim to the share in the estate.
According to the plaintiff, the amount due to Saijid Yar Jung from the estate was about Rs.60 lakhs and hence he claimed Rs.3 lakhs as his share (calculated at one anna in a rupee) in addition to the return of the sums advanced by him which as stated above was Rs.75,000.
The plaintiff, therefore, filed the present suit against the heirs of Sajjid Yar Jung for accounts and for administration of his estate and for distribution of the amount among the plaintiff and the defendants.
He also joined the receiver of the estate of Nawab Salar Jung Bahadur as one of the defendants to the suit.
The heirs of the late Nawab Sajjid Yar Jung (hereinafter referred to as "Nawab") contested the suit and denied that the plaintiff had advanced any amounts to the Nawab.
They also raised other contentions including the contentions that the suit was barred by limitation and that the agreement of June 27, 1952 was unenforceable in law as it was in the nature of a champerty deal which was opposed to public policy and forbidden by law.
The City Civil Court where the suit was filed found that the agreement was genuine, that it was admissible in evidence, that the amounts were advanced by the plaintiff to the Nawab and that the suit was not barred by limitation.
However, the Court found that the agreement was opposed to public policy as the object of the agreement was that the plaintiff should wield his influence with Central and State Ministers to have the Nawab recognised as the heir to the estate in return for his being given one anna share in the amount to be received by the Nawab.
The Court, therefore, held that the agreement in question was not enforceable.
The Court also held that even the amounts actually advanced by the plaintiff and received by the Nawab could not be recovered by the plaintiff.
Accordingly, the Court dismissed the suit with costs.
The plaintiff preferred an appeal to the High Court.
The Division Bench of the High Court held that the appeal had abated against all the respondents on account of the failure of the plaintiff appellant to bring on record the heirs of one of the respondents, viz., Askar Nawab Jung who had died pending the appeal.
On 333 merits, the Bench also held that the agreement was against the public policy.
The Court further held that the agreement was one whole agreement and hence the plaintiff was not entitled to recover even the amount of Rs.75,000 which was actually advanced by him to the Nawab for prosecuting the litigation.
It is this decision which is challenged before us.
As stated earlier, leave has been granted only in respect of the said amount of Rs.75,000 and, therefore, we are concerned in the present appeal only with the question as to whether the conclusion arrived at by the High Court, i.e., that the agreement is opposed to public policy and the actual advance of Rs.75,000 was a part of the whole agreement and was, therefore, also tainted by the vice of being contrary to public policy is correct.
That the amount of Rs.75,000 was advanced by the plaintiff to the Nawab for prosecuting his claim as a sharer in the estate, is not disputed.
In fact, the Nawab had to approach the plaintiff and had to enter into the agreement in question for the express purpose of successfully prosecuting his claim.
The plaintiff cannot also contend that he had agreed to and did advance the said amount of Rs.75,000 only because he wanted and expected the Nawab to be successful in the prosecution of his claim.
The advance was not a friendly loan or without consideration.
The agreement itself stipulated that on the successful establishment of the claim, the Nawab would not only return the said advance but would also pay to the plaintiff consideration for the said advance.
That consideration was agreed to be at the rate of one anna in a rupee.
It is, therefore, apparent on the face of the record that the advance and the share in the estate, were a part of the same contract one as a consideration for the other.
The two stand together and none can stand without the other.
Hence, I am not impressed by the contention advanced by Shri Shah for the appellant that the amount of Rs.75,000 which was advanced by the appellant can be separated from the other agreement or could be treated differently.
I am in agreement with the High Court that the agreement has to be treated as a whole and the two parts, viz., the advance and the consideration for the same cannot be separated from each other.
The next question is whether the advance in question was opposed to public policy.
On this question, Shri Shah took us through the law on the subject, and contended that both the City Civil Court as well as the High Court have created a new head of public policy to declare the agreement as void, although according to the relevant 334 statutory Provisions as well as the decisions of the Court, the agreement is not void.
In the first instance, he referred us to the provisions of Sections 23, 65, 69, 70 and Part (ii) of Section 73 of the Indian Contract Act.
Section 23 states that the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is void.
He then pointed out to us that the specific rule of English law against maintenance and champerty have not been adopted in India and a champertous agreement is not per se void in this country.
He contended that before a champertous agreement is held to be void, it must be shown that it is against public policy or against justice, equity and good conscience.
He contended in this connection that the Nawab admittedly did not have sufficient finance to prosecute his claim though, he had a valid claim as shown by the result of the litigation in that behalf.
The plaintiff, therefore, did not do anything wrong in advancing the amount in question to him to enable him to establish his claim successfully since the Nawab could not have repaid the amount unless he got a share in the estate.
It was a legitimate exercise to reduce the agreement to writing and to stipulate therein that the amount should be repaid along with a share in the estate when the Nawab 's claim was established.
The share in the estate being only one anna in a rupee could not also be said to be on the high side and conscionable.
The High Court has given a finding in that behalf in favour of the appellant.
The High Court has, however, held against the appellant only on the ground that the agreement was against public policy.
He strenuously urged that if the champertous nature of the agreement is ignored which it is legitimate to do so in this country, there is no other ground of public policy on which the agreement can be struck down.
In this connection, he referred us to the decision of this Court in the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, where it is reiterated that a champertous contract would be legally unobjectionable if no lawyer was involved and that the rigid English rules of Champerty and Maintenance do not apply in India.
In that case, he pointed out to us that the agreement was held unenforceable because it was agreement between a lawyer and his client and it amounted to professional misconduct.
However, this Court has also observed there that if such an agreement had been 335 between a third party "it would have been legally enforceable and good.
It may even be that it is good in law and enforceable as it stands though we do not so decide because the question does not arise; but that was argued and for the sake of argument even that can be conceded.
It follows that there is nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction per se, that is to say, when a legal practitioner is not concerned.
But that is not the question we have to consider.
However much these agreements may be open to other men what we have to decide is whether they are permissible under the rigid rules of conduct enjoyed by the members of a very close professional preserve so that their integrity, dignity and honour may be placed above the breath of scandal".
His second leg of the argument rested on the other provisions of the Indian Contract Act to which I have made reference above.
He contended that even assuming that it was an agreement to receive consideration a share in the claim that was to be established by the Nawab, it was not against public policy.
He contended that the amount in question was admittedly advanced and an advantage of it was taken by the Nawab to establish his claim.
He had, therefore, to return the same to the appellant.
In this connection, he referred to us to the other provisions of the Indian Contract Act to which I have made a reference earlier.
Section 65 states that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract, is bound to restore it, or to make compensation for it, to the person from whom he received it.
Section 69 states that a person who is interested in the payment of moneys which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.
Section 70 declares that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit therefore, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
Part (ii) of Section 73 states that when an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it, is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract.
Shri Shah also referred us to the provisions of Section 84 of the which reads as follows: 336 "84.
Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.
Relying on these statutory provisions as well as the judicial decisions, he contended firstly that assuming that the agreement was a champertous one, it was neither immoral nor against public policy, and secondly even de hors the agreement, the appellant is entitled to the said advance of Rs.75,000 under Section 70 of the Indian Contract Act.
The High Court referred to the evidence on record in appeal which had an intimate bearing on the nature and the purpose of the agreement in question and came to the following conclusions.
The Court held that the plaintiff appellant was approached by the Nawab because being a businessman of eminence, he was highly influencial.
He had an access to the ministers and other worthies in the Government.
He was in a position to secure to the Nawab his claim by wielding his influence.
The Nawab knew about it and the plaintiff was also confident about it.
It 'was immaterial that those whom he had approached were men of high repute and great integrity of character.
The fact that because of his accessibility he could get things done through them or could make use of his other standing with them to deliver goods to the Nawab, was enough to taint the entire agreement with the vice of introducing corruption in public life.
The High Court also found that the advance which was made was in the nature of an investment to share the booty.
There was no reason for the plaintiff who was a total stranger to the Nawab to undertake the financing in question which was in those days on a considerably high scale.
No person who was not confident of delivering the goods would have embarked on financing on such a liberal scale.
The plaintiff admittedly was a businessman who knew the value of each pie he was spending.
He was doing it as a fruitful investment with sure returns.
That is evident from the terms of the contract themselves since both the advance and the consideration for which the advances were made form part of one integral contract.
On these facts which are on record, the High Court came to the conclusion that the parties had entered into the agreement in question with the avowed purpose that the plaintiff would use his then prevailing influence with the worthies in the 337 Government to secure the gains for the Nawab.
The Court On this evidence came to the conclusion that the agreement was nothing but one obviously made to lend services as a "go between" or a "carrier" for commission.
This being so, it was against public interest and detrimental to the health of body politic.
The High Court further repelled the contention that either the City Civil Court or it was evolving a new head of public policy by referring to a decision of this Court in Ghurelal Parakh vs Mahadeodas Maiya & Ors., AIR 1959 SC 781=(1959) Suppl.
2 SCR 406 and the decisions of the English Court and to opinions of the jurists/experts in treatises and essays on the subject of public policy.
The Court also pointed out that this was by no means a new head of public policy and it can come under the head "agreements tending to injure the public" as mentioned at page 325 of Anson 's Law of Contract (23rd ed).
I am in respectful agreement with the conclusion arrived at by the High Court.
It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy.
What constitutes an injury to public interests or welfare would depend upon the times and climes.
The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of the injury.
It is contrary to the concept of public policy to contend that it is immatable, since it must vary with the varying needs of the society.
What those needs are would depend upon the consensus value judgments of the enlightened section of the society.
These values may sometimes get incorporated in the legislation, but sometimes they may not.
The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities.
It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna.
When courts perform this function undoubtedly they legislate judicially.
But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society.
Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society.
So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed.
It is true that as observed by Burrough, J. in Richardson vs Mellish, [ ; at 252 public policy is "an unruly horse and 338 dangerous to ride" and as observed by Cave, J. in re Mirams, [189] 1 QB 594 at 595 it is "a branch of the law, however, which certainly should not be extended, as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy".
But as observed by Prof. Winfield in his article 'Public Policy in the English Common Law ' [1928]42 Harv.
L. Rev. 76, 91]: "Some judges appear to have thought it [the unruly horse of public policy] more like a tiger, and refused to mount it at all perhaps because they feared the fate of the young lady of Riga.
Others have regarded it like Balaam 's ass which would carry its rider nowhere.
But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community.
" All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be.
The courts cannot in such circumstances shirk from their duty and refuse to fill the gap.
In performing this duty they do not foist upon the society their value judgments.
They respect and accept the prevailing values, and do what is expected of them.
The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good.
The contract such as the present one which is found by the City Civil Court as well as the High Court to have been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab was obviously a "carrier" contract.
To enforce such a contract although its tendencies to injure public weal is manifest is not only to abdicate one 's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law.
To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications.
A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law strikes at its very root.
When the Court discountenances such practice, it only safeguards the foundation of the society.
Even assuming, therefore, that the Court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired.
339 The appeal is, therefore, dismissed.
In the circumstances of the case, there will be no order as to costs.
FATHIMA BEEVI, J. I have had the advantage of perusing the judgment prepared by my teamed brother, Sawant, J.
I agree with him that the appeal must fail.
I wish to say a few words.
The only point that arises for decision in the appeal is whether an amount of Rs.75,000 which the plaintiff claims to have advanced, is recoverable from the respondents.
The relevant facts have been stated by my learned brother and it is not necessary to repeat the same.
The City Civil Court found that the agreement on the basis of which the plaintiff claimed relief was opposed to public policy.
The object of the agreement according to the trial court was that the plaintiff should wield his influence with Central and State Ministers to have Sajjid Yar Jung recognised as the heir of late Nawab Salar Jung in return for his being given one anna share in the assets to be received by Sajjid Yar Jung from the estate of late Nawab Salar Jung.
The High Court has confirmed that under the agreement the plaintiff was to promote the cause of Sajjid Yar Jung in his being recognised as heir of the Nawab Salar Jung and for the help thus rendered to receive a share of one anna in a rupee out of the assets obtained.
The plaintiff appears to have advanced an amount of Rs.75,000 in promoting the cause of Sajjid Yar Jung as agreed upon.
The help in promoting the cause was much more than mere financing.
On the evidence the High Court found that the help Sajjid Yar Jung wanted from the plaintiff was to bring to bear his influence with the Central and State Ministers and the request for financial help was secondary to the request to represent the cause with the use of influence.
The High Court affirmed that the object of agreement was to influence the Central and State Ministers and to advance and expand all amounts necessary in that connection.
In the face of the concurrent findings with which we agree, I have no doubt in our mind that the contract relating to the payment of the amount is not severable from the agreement to promote the cause of Sajjid Yar Jung by wielding the influence the plaintiff had.
Every agreement of which the object or consideration is unlawful is void.
The consideration or object of an agreement is unlawful when the court regards it as opposed to public policy.
If anything is done against the public law or public policy that would be illegal in as much as the interest of the public would suffer in case a contract against public policy is permitted to stand.
Public policy is a principle of judicial 340 interpretation founded on the current needs of the community.
The law relating to public policy cannot remain immutable.
It must change with passage of time.
A bargain whereby one party is to assist another in recovering property and is to share in the proceeds of the action and such assistance is by using the influence with the administration, irrespective of the fact that the persons intended to be influenced are not amenable to such influence is against protection and promotion of public welfare.
It is opposed to public policy.
In this view, we would hold that the plaintiff cannot enforce the agreement to recover the amount from the respondents.
ORDER The appeal is, therefore, dismissed with no order as to costs.
R. section section Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Nawab Salar Jung III expired on March 2, 1949 leaving behind him no issue but a vast estate.
Several persons came forward to be his heirs.
One of the claimants, Sajjid Yar Jung, did not have the wherewithal to establish his claim to a share in the estate.
He approached the plaintiff for financial help.
An agreement was executed between them according to which Sajjid Yar Jung agreed to return all amounts to be advanced by the plaintiff and in addition to give him one anna share in the amount that would be received by Sajjid Yar Jung from the estate.
Sajjid Yar Jung borrowed a total sum of Rs 75,000 under the agreement.
The dispute was ultimately settled in the Civil Court by compromise between the various claimants.
According to the plaintiff, the amount due to Sajjid Yar Jung was about Rs.60 Lakhs and hence the plaintiff claimed Rs.3 lakh as one anna share in addition to the sum advanced, i.e. Rs.75,000.
The plaintiff filed the present suit for the recovery of the total amount.
The City Civil Court inter alia found that the agreement was opposed to public policy as the object of the agreement was that the plaintiff should wield his influence with Central and State Ministers to have the Nawab recognised as the heir to the estate in return for his being given one anna share in the amount to be received by the Nawab.
The Court, therefore, held that the agreement in question was not enforceable, and even the amounts actually advanced could not be recovered by the plaintiff.
In the appeal, the Division Bench of the High Court held that the agreement was one whole agreement and hence the plaintiff was not entitled to recover even the amount of Rs.75,000 which was actually advanced.
The Division Bench also held that the agreement was public policy.
328 This Court granted special leave only in respect of the said amount of Rs.75,000.
Before this Court it was contended on behalf of the plaintiff that (i) the amount of Rs.75,000 could be separated from the other agreement or could be treated differently; (ii) if the champertous nature of the agreement was ignored which it was legitimate to do so in this country, there was no other ground of public policy on which the agreement could be struck down; (iii) assuming that the agreement was a champertous one, it was neither immoral nor against public policy, and even de hors the agreement, the appellant was entitled to the said advance of Rs.75,000 under section 70 of the Indian Contract Act.
It was further urged that both the City Civil Court as well as the High Court had created a new head of public policy to declare the agreement as void, although according to the relevant statutory provisions as well as the decisions of the court, the agreement was not void.
Dismissing the appeal, this Court, HELD: Per Sawant, J. (1) It is apparent on the face of the record that the advance and the share in the estate were parts of the same contract one as a consideration for the other.
The two stand together and none can stand without the other.
[333F] (2) A contract which has a tendency to injure public interests or public welfare is one against public policy.
[337D] (3) What constitutes an injury to public interests or welfare would depend upon the times and climes.
The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of the injury.
It is contrary to the concept of pubic policy to contend that it is immutable, since it must vary with the varying needs of the society.
What those needs are would depend upon the consensus value judgments of the enlightened section of the society.
These values may sometimes get incorporated in the legislation, but sometimes they may not.
[337E] (4) The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities.
[337E F] 329 (5) It is not only necessary but obligatory on the courts to step in to fill the lacluna.
When courts perform this function undoubtedly they legislate judicially.
But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society.
[337F] (6) So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them.
their role in this respect has to be welcomed.
[337G] Ghurelal Parakh vs Mahadeodas Maiya & Ors., [1959] Suppl.
2 S.C.R. 406; Richardson vs Mellish, ; ; In re Mirams, , referred to.
(7) All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be.
The courts cannot in such circumstances shirk from their duty and refuse to fill the gap.
In performing this duty they do not foist upon the society their value judgments.
They respect and accept the prevailling values, and do what is expected of them.
[338D] (8) The courts will fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or an action of an individual which is certain to subvert the societal goals and endanger the public good.
[338E] (9) The contract in the present case had been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab and was obviously a "carrier" contract.
To enforce such a contract although its tendencies to injure public weal are manifest is not only to abdicate one 's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law.
To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications.
[338F G] In the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, , referred to.
(10) A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law at its very root.
When the Court discountenances such practice, it only safeguards 330 the foundation of the society.
Even assuming that the Court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired.
[338G H] Per Fathima Beevi, J. (1) There is no doubt that the contract relating to the payment of the amount is not severable from the agreement to promote the cause of Sajjid Yar Jung by wielding the influence the plaintiff had.
[339G] (2) Every agreement of which the object or consideration is unlawful is void.
The consideration or object of an agreement is unlawful when the court regards it as opposed to public policy.
[339G] (3) Public Policy is a principle of judicial interpretation founded on the current needs of the community.
The law relating to public policy cannot remain immutable.
It must change with passage of time.
[339H 340A] (4) A bargain whereby one party is to assist another in recovering property and is to share in the proceeds of the action and such assistance is by using the influence with the administration irrespective of the fact that the persons intended to be influenced are not amenable to such influence is against protection and promotion of public welfare.
It is opposed to public policy.
[340B]


judgement:
Civil Appeal No. 334 of 1978.
From the Judgment and Order dated 14.2.1977 of the Punjab and Haryana High Court in Civil Writ Petition No. 1860 of 1975.
WITH Civil Appeal No. 833 of 1977.
414 From the Judgment and Order dated 14 2.1977 of the Punjab and Haryana High Court in Civil Writ Petition No. 1172 of 1974.
Anil Dev Singh, P.P. Rao, O.P. Sharma, Janinder Lal, N.S. Das Bahl, R.C. Gubrela, R.S. Suri, R.S. Sodhi (NP) and M.S. Dhillon (NP) for the appearing parties.
The Judgment of the Court was delivered by PUNCHHI, J.
These two allied appeals arising from a common judgment of the Punjab and Haryana High Court at Chandigarh, in Civil Writ Petitions Nos.
1172 of 1974 and 1860 of 1975, on grant of special leave, can appropriately be disposed of by a common judgment.
In order to recruit 71 officers in the Punjab Civil Services (Executive Branch) and Allied services, the Punjab Public Service Commission, at the behest of the State of Punjab, held a competitive examination in December, 1972.
As advertised 12 vacancies were for the Punjab Civil Services and the remaining for Allied Services.
The applying candidates as per the requirement of the Punjab Civil Service (Executive Branch) Rules, 1930 (for short the Rules) specified the posts in order of preference in their respective applications.
The result of those who were declared qualified was published in the daily Tribune dated September 21, 1973.
Out of the 71 candidates declared successful Shri V.M. Bansal, the appellant in Civil Appeal No. 833 of 1977 was declared successful for a post in the Punjab Civil Service and Shri Jaswant Singh Nerwal, the appellant in Civil Appeal No. 334 of 1978 for the post of Tehsildar in the Allied services.
Some of the unsuccessful candidates challenged this selection in its entirety on various grounds before the High Court through Civil Writ Petition No. 1722 of 1974.
On the other hand challenge in Civil Writ Petition No. 1860 of 1975 was made by Nerwal against Bansal for the latter having been allowed in the meantime substituted preference for the posts to the ones given in the first instance in his application, and which led to his becoming a Punjab Civil Services Officer and Nerwal to be a Tehsildar, in the Allied services and had the substitution not been allowed the position would have been that Nerwal would have been in the P.C.S. and Bansal an Excise & Taxation Officer.
The challenge thus was to the Commission having allowed substitution of the preference.
The High Court negatived the challenge of Nerwal and his claim to be declared successful to a post in the Punjab Civil Service 415 in preference to Bansal and thus dismissed Civil Writ Petition No. 1860 of 1975.
Simultaneously Writ Petition No. 1172 of 1974 preferred by the unsuccessful candidates was allowed in part inasmuch as the selection of Bansal as a Punjab Civil Service Officer and his consequential appointment was quashed.
The High Court, however, did not disturb the selection of the remaining 70 successful candidates but required Bansal to compete again by issuing the following direction: "However, he is entitled to compete with the other unsuccessful candidates for securing place in the merit and we, therefore, direct that Shri V.M. Bansal (respondent No. 8) along with the other unsuccessful candidates be again interviewed by the members of the Commission except Shri J.R. Bansal (respondent No. 4) and whosoever is selected on merits shall have to be appointed against the post for which he is selected in accordance with the Rules.
We may, however, observe that if Shri J.R. Bansal (respondent No. 8) is again selected on merits, he will be entitled to his original seniority and all other benefits of the Service which he would have enjoyed had his selection not been quashed.
If in any case, no candidate is selected against the post of P.C.S. Cadre in accordance with the Rules, any of the other selected candidates may then make representation to the Government for being appointed to the post of P.C.S. in accordance with the Rules.
" Bansal is here before us to have the aforesaid direction quashed and Nerwal to have the place of Bansal as a Punjab Civil Service Officer.
We heard learned counsel for the respective parties on every aspect of the case at great length.
The High Court was goaded to issue the above direction regulating selection between Bansal and other unsuccessful candidates, as also the consequence thereof, on applying the decision of this Court in A.K. Kraipak & Ors. etc.
vs Union of India & Ors., to neutralise Bansal 's father Shri J. R. Bansal being a member of the Public service Commission.
And even though he had not participated in the deliberations of the Commission, when Bansal had been interviewed, his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate.
Kraipak 's case was one where one of the persons, who sat as a member of the selection board, was himself, one of the persons to be considered for selection.
He participated in the 416 deliberations of the selection board when the claims of his rivals were considered.
He participated in the decisions relating to the preference in seniority.
He participated at every stage in the deliberations of the selection board where there was conflict between his interest and duty.
In such set of facts this Court unhesitatingly came to the conclusion that there was a reasonable likelihood of bias and therefore the principles of natural justice had got violated.
But this Court in Javid Rasool Bhat & Ors.
vs State of Jammu & Kashmir & Ors.
, ; did not vitiate the selection of a candidate to admission in a medical college on the ground of presence in the selection board of the father of one of the candidates.
In this case, the Principal of Medical College, Srinagar whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with a written test and would not be present when his daughter would be interviewed.
The other members of the Selection Committee agreed to the proposal.
The procedure adopted by the Selection Committee and the members concerned was in accord with the generally accepted and well known procedure adopted by the Public Service Commissions every where in the country, as it was not unusual for candidates related to members of the Service Commission and selection Committees to seek employment.
In such a situation the practice generally in vogue is for the member concerned to excuse himself when the particular candidate is interviewed and such a selection is beyond challenge, unless, of course, mala fide.
See this Court 's decision in S.N. Nagarajan & Ors.
vs State of Mysore & Ors., , also.
Then we have the momentous decision of this Court in Ashok Kumar Yadav and Ors.
vs State of Haryana & Ors. etc.
etc., [1985] (Supp.) SCR 657 which without whittling down the salutary principle evolved in Kraipak 's case (supra) has put the Public Service Commissions, being creatures of the Constitution, at a higher pedestal.
At pages 686 87, it was ruled as follows: "But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and allied services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution.
It is a Commission which consists of a Chairman and a specified number of members and is a Constitutional Authority.
We do not think that the princi 417 ple which requires that a member of a selection committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a Constitutional Authority like the Public Service Commission, whether Central or State.
If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place.
And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected.
When two or more members of a Public Service Commission are holding a viva voce examination they are functioning not as individuals but as the Public Service Commission.
Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.
" It was the admitted case before the High Court that Bansal 's father did participate in the deliberations of the Commission when the viva voce test of other candidates appearing before the Commission had been taken and he had accordingly awarded marks to the candidates otherwise competing with his own son.
The High Court has still deduced that inspite of the afore suggested bias the candidates who got selected against the posts (except his son) got their due unbiased and therefore their selection cannot be questioned.
Taking this deduction to be correct, the High Court before issuing the direction under challenge, had further to find that there was bias in excluding the unsuccessful candidates.
We do not find this to have engaged the attention of the High Court.
It is noticeable that besides Bansal 's father there were four other members of the Public Service Commission and who had functioned as a Commission.
As is evident there was a long list of as many 540 candidates to be interviewed and the interviews went on from 24 9 1973 uptill 30 10 1973.
In the nature of things, there was no material before the High Court, and none has been pointed to us, from which it could be concluded that the members 418 of the commission could keep track of the comparatives of each of those 540 candidates so as to manipulate a favourable result to Bansal.
We have not been shown any material to entertain the doubt that Bansal 's father being a member of the Public Service Commission, per se had the effect of other members keeping track of comparatives in order to single out Bansal 's as a successful candidate.
And lastly there is not a word of mala fide suggested against the other members of the Public Service Commission, of having shared the supposed animus of Bansal 's father.
Thus, in the facts and circumstances of this case, we do not find any reason to sustain the judgment of the High Court on this aspect of the case.
Bansal 's father did what was expected of him, in having declined to participate in the deliberations of the commission when Bansal went for the viva voce test.
Our view in this regard is further strengthened by the manner in which the viva voce test is conducted and which the High Court even has not disapproved.
It appears that out of a total of 825 marks, 625 marks have been allotted for written tests and the remaining 200 marks for viva voce test.
These viva voce marks are distributed in various heads as enumerated by the High Court.
What is significant is that each member individually gets 25 marks but on actual working, if one of them is not attending, the share of marks are divided in the present members.
Further these marks are strictly not divided as 25 marks for each member but each member allots marks to each candidate out of 125 marks and these when added are divided by 5 or by the actual number of members present and participating in the interview.
We may not be taken to be commending such a system of division of marks out of the allocated marks for the viva voce test but it seems this is the practice in which they are actually worked out.
Similarly the provision of 200 marks for viva voce test cannot meet our approval because of the percentage now authoritatively fixed in Ashok Kumar Yadav 's case (supra).
On these particulars and for these reasons no single member can possibly usurp to himself the total functioning of the commission and jealous as human nature is, no other member can be expected to have abdicated his powers to another, at that level, and to oblige another.
These circumstances do not give rise to the likelihood of Bansal 's father espousing the cause of his son to the other four members of the commission and monitor the performance of 540 candidates to be interviewed, the results of written examination of which, he was not alleged to be aware beforehand.
In these circumstances, we find it difficult to uphold the view of the High Court requiring Bansal to be interviewed again so as to rub against the unsuccessful candidates and suffer the consequence.
419 On the grant of special leave to Bansal, operation of the judgment and order of the High Court appealed against, was on 27th July, 1977, stayed.
Bansal has stayed put and working as an Officer in the Punjab Civil Service and his displacement at the present stage would otherwise be inequitous serving nobody 's purpose due to the time lag.
The unsuccessful candidates cannot possibly now, at this stage, due to age and other supervening factors, be fit for the viva voce test, so as to elbow out Bansal.
The obedience of the directions of the High Court at this late stage would overly be counter productive and thus not worth sustaining.
This brings us to the claim of Nerwal for displacement of Bansal from the post in the Punjab Civil Service in substitution to that held by him as a Tehsildar.
The facts as found by the High Court are that initially Shri V.M.Bansal 's first preference was for the post of Excise & Taxation Officer, but on December 4, 1973, he had intimated to the Commission that he required change of his preference so that his first preference was of Punjab Civil Service (Executive Branch).
The intimation was received in the office of the commission on December 4, 1974 itself and the Chairman of the commission on the same date allowed the change.
That such change was permissible before the declaration of the result is beyond dispute.
What was urged before the High Court was that since Bansal 's application did not form part of all like applications sent in a bundle by the commission to the state Government on 11th December, 1973 and had rather been sent separately later on December 20, 1973, that by itself raised a doubt as to the authenticity thereof.
The High Court negatived the contention.
It held that this circumstance alone did not conclusively prove that the change of preference was intimated to the commission after the declaration of the result on December 7, 1973 as alleged.
Though the High Court went on to observe that there was no statutory rule that no change in preference could be made after the result is communicated by the commission to the State Government, we are not obliged to go into that question.
In face of the finding of the High Court that circumstantially it was established on the record that the preference had been changed by Bansal on 4 12 73, before the declaration of the result, it is difficult to take a contrary view.
The High Court had even seen the original record to come to that view.
Such like inferences drawn are in the realm of facts and we have not been persuaded to take a different view.
Once this is established that the change of preference could be made and it was intimated and appproved timely, the conclusion is inescapable that Bansal 's first preference to a post in the Punjab Civil 420 service ranked superior to Nerwal 's preference, because of their interse ranking in the examination results.
Thus,the appeal of Jaswant Singh Nerwal has no substance deserving rejection.
Resultantly for the views afore expressed, Civil Appeal No. 833 of 1977 preferred by Shri V.M. Bansal is allowed and the Civil Writ Petition No. 1172 of 1974 before the High Court would stand dismissed and Civil Appeal No. 334 of 1978 of Shri Jaswant Singh Nerwal would stand dismissed affirming the dismissal of his Writ Petition No. 1860 of 1975 before the High Court, but without any order as to costs in both appeals.
D.R.L. C.A. No.334/78 dismissed C.A. No.833/77 allowed.

summary/full:
For the recruitment of 71 officers in the Punjab Civil Services (Executive Branch) and Allied Services, the Punjab Public Service Commission, at the behest of the State of Punjab, held a competitive examination.
As per the requirement of the Punjab Civil Services (Executive Branch) Rules, 1930, the applying candidates specified the posts in order of preference in their respective applications.
One such candidate, appellant V.M. Bansal, who had initially indicated his first preference for the post of Excise & Taxation Officer, intimated to the Commission, but undisputedly before the declaration of the result, that he wanted change of his preference so that his first preference was of Punjab Civil Service (Executive Branch).
This change was allowed by the Commission.
Bansal 's father, who was a member of the Commission, did not participate in the deliberations of the Commission when Bansal was interviewed.
Of the 71 candidates declared successful, Bansal was declared successful for a post in the Punjab Civil Service, and appellant jaswant Singh Nerwal for the post of Tehsildar in the Allied Services.
Some of the unsuccessful candidates challenged the entire selection on various grounds before the Punjab and Haryana High Court by means of a writ petition.
On the other hand, Nerwal, through a separate writ petition, challenged the change of preference allowed by the Commission to Bansal which led to Bansal becoming a Punjab Civil Service Officer and Nerwal a Tehsildar, and claimed that he be declared successful to a post in the Punjab Civil Service in preference to Bansal.
The High Court by a common judgment rejected the claim of Nerwal and dismissed his writ petition, but allowed the writ petition preferred by the unsuccessful candidates in part inasmuch as the selection of Bansal as a Punjab Civil Service Officer and his consequential appointment was quashed.
The High Court however did not disturb the selection of the remaining 70 successful candidates but 412 required Bansal to compete again with the other unsuccessful candidates as per its direction extracted in the judgment.
The High Court in issuing the aforesaid direction applied the decision of this Court in A. K. Kraipak & Ors. etc.
V. Union of India & Ors., , to neutralise Bansal 's father being a member of the Commission.
And even though Bansal 's father had not participated in the deliberations of the Commission, when Bansal was interviewed, his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate.
Hence these two appeals by special leave, one by Bansal and the other by Nerwal, against the judgment of the High Court.
Allowing the appeal of Bansal and dismissing the one filed by Nerwal, the Court, HELD: (1) Besides Bansal 's father, there were four other members of the Public Service Commission and who had functioned as a Commission.
There was a long list of as many 540 candidates to be interviewed and the interviews went on from 24.9.1973 uptil 30.10.1973.
[417G] (2) Bansal 's father did what was expected of him, in having declined to participate in the deliberations of the Commission when Bansal went for the viva voce test.
[418C] (3) No material has been shown to entertain the doubt that Bansal 's father being a member of the Public Service Commission, per se had the effect of other members keeping track of comparatives in order to single out Bansal as a successful candidate.
There is not a word of mala fide suggested against the other members of the Public Service Commission, of having shared the supposed animus of Bansal 's father.
There is therefore no reason to sustain the judgment of the High Court on this aspect of the case.
[418A B] A.K. Kraipak & Ors. etc.
vs Union of India & Ors., [19701 1 SCC 457, distinguished; Javid Rasool Bhat & Ors.
vs State of Jammu & Kashmir & Ors.
, ; , affirmed; B.N. Nagarajan & Ors.
vs State of Mysore & Ors.
, [ , referred to.
Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors. etc.
, [1985] Supp.
SCR 657, relied upon.
(4) The manner in which the viva voce test is conducted, no single 413 member can possibly usurp to himself the total functioning of the Commission and jealous as human nature is, no other member can be expected to have abdicated his powers to another, at that level, and to oblige another.
These circumstances do not give rise to the likelihood of Bansal 's father espousing the cause of his son to the other four members of the Commission and monitor the performance of 540 candidates to be interviewed, the results of written examination of which, he was not alleged to be aware before hand.
In these circumstances, it is to uphold the view of the High Court requiring Bansal to be interviewed again so as to rub against the unsuccessful candidates and to suffer the consequence.
[418C H] In the instant case, the system of division of marks out of the allocated marks for the viva voce test amongst the actual number of members present and participating in the interview, was not however commended by the Court, nor did the Court approve the provision of 200 marks for the viva voce test because of the percentage now authoritatively fixed in Ashok Kumar Yadav 's case.
[418F] (5) Bansal has stayed put and working as an Officer in the Punjab Civil Service and his displacement at the present stage would otherwise be inequitous serving nobody 's purpose due to the time lag.
The unsuccessful candidates cannot possibly now, at this stage, due to age and other supervening factors be fit for the viva voce test, so as to elbow out Bansal.
The obedience of the directions of the High Court at this late stage would overly be counter productive and thus not worth sustaining.
[419A B] (6) Once it is established that the change of preference could be made and it was intimated and approved timely, the conclusion is inescapable that Bansal 's first preference to a post in the Punjab Civil Service ranked superior to Nerwal 's preference, because of their interse ranking in the examination results.
Thus the appeal of Nerwal has no substance and deserves rejection.
[419H 420A]


judgement:
103 of 1958.
Petition under article 32 of the Constitution for enforcement of fundamental rights.
M. T. Paikeday and Ganpat Rai, for the petitioner.
Sardar Bahadur, for respondent No. 1.
M. R. Krishna Pillai, for respondent No. 3. 788 1958.
December 11.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is a petition under article 32 of the Constitution by one C. K. Achuthan, who claims to have held a contract for the supply of milk and other articles of diet for the year 1958 1959 but whose contract for supply of milk is said to have been cancelled by the District Medical Officer (second respondent herein).
The contract for the.
supply of milk has now been given to the third respondent, the Co operative Milk Supplies Society, Cannanore.
From the petition, it appears that the petitioner held contracts for the supply of milk to the Government Hospital at Cannanore (Kerala State) ever since 1946, and that previous to this, his brother in the same business held similar contracts from 1936.
In 1957, a " uniform procedure for fixing up contracts " was adopted, and by a notification, conditions for acceptance of tender were laid down.
The petitioner as well as the third respondent submitted their respective tenders, which were to be opened by the Superintendent of the Hospital in the presence of interested parties.
We need not refer to all the conditions under which tenders were to be accepted, except those which have a bearing upon this matter.
It was stated in the conditions that no tender marked at " current market rates " would be accepted, and further that in the supply of milk, preference would be given to approved Co operative Milk Supply Unions and Societies, if their tender was within a margin of 5 per cent.
over the market rate or the lowest tendered rate, whichever was less.
All persons making tender for the contract had to produce a certificate of solvency and tax clearance certificates, and to make a deposit with the tender.
On January 20, 1958, the tenders which were submitted were scrutinised and the tender of the petitioner for the supply of milk was accepted and that of the third respondent rejected.
It appears that the Superintendent (respondent No. 2) communicated to the Director of Public Health, her reasons for accepting the tender of the petitioner and not accepting that 789 of the third respondent.
Certain correspondence then ensued between the Director of Health Services and the second respondent, as a result of which the petitioner was informed that the contract for the supply of milk given to him was cancelled.
He was informed that it was the policy of Government that in the matter of supply to Government medical institutions in Cannanore District the Co operative Milk Supplies Union was to be given contracts on the basis of prices fixed by the Revenue Department.
It appears that some more correspondence between the Director of Health Services and the second respondent ensued, and it was pointed out to the second respondent that action should have been taken under Cl. 20 of the conditions of the tender and the contract only cancelled after giving a month 's notice to the petitioner.
In furtherance of these instructions, the second respondent issued a notice in terms of Cl. 20 of the tender, and cancelled the contract after the notice period.
The present petition has been filed to question the several orders referred to above.
It may be pointed out that previous to this, the petitioner had applied under article 226 of the Constitution to the High Court of Kerala, but his petition (O. P. No. 201 of 1958) was rejected by Raman Nayar, J., on June 6, 1958.
A Letters Patent Appeal was also dismissed by Koshi, C. J., and Vaidialingam, J. (A. section No. 354 of 1958 decided on July 7, 1958).
The High Court held that the present matter was no more than a breach, if any, of the contract by the State Government, and that the appropriate remedy was to file a civil suit and not to proceed under article 226.
It appears that no special leave to appeal was sought from this Court against the above orders, and the matter has been brought for adjudication, not by way of appeal but directly under article 32 of the Constitution as an infringement of the fundamental right of the petitioner.
The contention of the petitioner in this behalf is that he is entitled to an equal treatment in the eye of law, and that there has been discrimination against him vis a vis, the third respondent.
He claims protection under articles 14, 16(1), 19(1)(g) and 790 31 of the Constitution.
In our opinion, none of these Articles can be made applicable to the facts of the present case.
No doubt, the petitioner claims to have succeeded in obtaining the contract from the Government, and the third respondent failed to do so.
But even if he held the contract, the petitioner did not acquire an absolute right to be continued in that contract, because power was reserved by the Government under Cl. 20 to terminate the contract after giving a month 's notice.
Whether the exercise of that power in the present case was regular or legal, is not a matter on which we are called upon to pronounce, because adjudication of such dispute can appropriately take place only before the ordinary Civil Courts, where evidence can be gone into and examined at length.
The gist of the present matter is the breach, if any, of the contract said to have been given to the petitioner which has been cancelled either for good or for bad reasons.
There is no discrimination, because it is perfectly open to the Government, even as it is to a private party, to choose a person to their liking, to fulfill contracts which they wish to be performed.
When one person is chosen rather than another, the aggrieved party cannot claim the protection of article 14, because the choice of the person to fulfill a particular contract must be left to the Government.
Similarly, a contract which is held from Government stands on no different footing from a contract held from a private party.
The breach of the contract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even specific performance, but he cannot complain that there has been a deprivation of the right to practise any profession or to carry on any occupation, trade or business, such as is contemplated by article 19(1)(g).
Nor has it been shown how article 31 of the Constitution may be invoked to prevent cancellation of a contract in exercise of powers conferred by one of the terms of the contract itself.
The main contention of the petitioner before us was thus under article 16(1) of the Constitution, and he claimed equal opportunity of employment under the 791 State.
To begin with, a contract for the supply of goods is not a contract of employment in the sense in which that word has been used in the Article.
The petitioner wag not to be employed as a servant to fetch milk on behalf of the institution, but was a contractor for supplying the articles on payment of price.
He claimed to have been given a contract for supply of milk, and did not claim to be an employee of the State.
Article 16(1) of the Constitution , both in its terms and in the collocation of the words, indicates that it is confined to " employment " by the State, and has reference to employment in service rather than as contractors.
Of course, there may be cases in which the contract may include within itself an element of service.
In the present case, however, such a consideration does not arise, and it is therefore not necessary for us to examine whether those cases are covered by the said Article.
But it is clear that every person whose offer to perform a contract of supply is refused or whose contract for such supply is breached cannot be said to have been denied equal opportunity of employment, and it is to this matter that this case is confined.
Looking to the facts of the case, it is manifest that the petitioner was supplying, or in other words, selling milk and other articles of diet to the State for the use of hospitals and similar institutions.
He was in no sense a servant, and no question of employment qua servant arose.
In these circumstances, it is plain that article 16(1) of the Constitution is not attracted to the facts.
In our opinion, the petition under article 32 of the Constitution is wholly misconceived.
No fundamental right is involved.
At best, it is a right to take the matter to the Civil Court, if so advised, and to claim damages for breach of contract, if any.
The petition accordingly fails, and is dismissed with costs.
Petition dismissed.

summary/full:
For the supply of milk to the Government Hospital at Cannanore for the year 1948 49, the petitioner and the third respondent, the Co operative Milk Supplies Society, Cannanore, had submitted tenders, and the Superintendent who scrutinised them accepted that of the petitioner and communicated to the Director of Public Health the reasons for the decision.
Subsequently, the contract to the petitioner was cancelled after giving the requisite notice in terms of Cl. 20 Of the tender, and he was informed that it was the policy of the Government that in the matter of supply to Government medical institutions in Cannanore District, the Co operative Milk Supplies Union was to be given contracts on the basis of prices fixed by the Revenue Department.
The petitioner contended, in a petition filed under article 32 Of the Constitution, that there had been discrimination against him vis a vis the third respondent, that he was denied equal opportunity of employment under the State, and that the fundamental rights under articles 14, 16(1), 19(1) (g) and 31 had been infringed.
Held, that none of the fundamental rights were involved in the present case.
A contract which is held from Government stands on no different footing from a contract held from a private party and when one person is chosen rather than another the aggrieved party cannot claim the protection of article 14.
A contract for the supply of goods is not a contract of employment and the petitioner who was supplying milk to the State hospital was in no sense a servant and no question of employment qua servant arose.
Article 16 (1) was therefore not attracted to the case.