judgement:
Appeal No. 2241 of 1970.
Appeal by special leave from the judgment and order dated April 15, 1969 of the Mysore High Court in Writ Petition No. 2071 of 1967.
M. C. Setalvad and R. V. Pillai; for the appellant.
B. R. L. Iyengar and A. G. Ratnaparkhi, for respondent No. The Judgment of the Court was delivered by Mitter, J.
In this appeal by special leave the appellant challenges the decision of the Mysore High Court quashing his ,appointment as a University Grants Professor in Sanskrit by the Board of Appointments on the sole ground of non compliance with Rule 5 of the Supplementary Rules promulgated under the Mysore University Act, 1956.
That rule provides : "The Board of Appointments shall give, in writing the reasons for the selection of any candidate and also the basis on which the selection has been made and always give in writing the reasons for overlooking the claims of those who are seniors (i.e. total service as teacher) and/or have higher qualifications.
" The facts are as follows.
The appellant and the main con testing respondent have the same academic qualifications.
The ,a appellant joined the University as a lecturer in 1945 and he was appointed a temporary Reader in Sanskrit under the University Grants Commission Scheme which was distinct from other University appointments.
He was appointed a permanent Reader in the University under the said Scheme in April 1960.
The first respondent had joined the University as a lecturer in 1938 i.e. seven years before the appellant.
He was appointed a Reader ,under the University Grants Scheme in January 1961 i.e. several months after the appellant.
In December 1965 the appellant was placed as the Head of the Department of Sanskrit.
It appears that in 1967 an appointment had to be made as Professor in the University Grants Scheme, the top position in the department.
The ,claims of the appellant, the first respondent and two other persons were considered by the Board of Appointments.
They were also interviewed by the Board and on June 9,1967 the appellant was given the said appointment.
This was later approved of by the ,Chancellor of the University on June 29, 1967.
The first respondent filed a Writ Petition in the High Court challenging the appointment of the appellant under article 226 of 623 the Constitution on various grounds but the infraction of, rule 5 set forth above was not one of them.
The High Court, however on an application made for the purpose allowed the ground to be raised but the learned single Judge dismissed the writ petition.
The: first respondent filed an appeal which was heard by a Division Bench of the High Court.
The High Court turned down all but the contention based on rule 5 above and took the view that the said rule was a mandatory provision and it was incumbent on the Board of Appointments to state in writing why the first respondent although he had longer teaching experience was passed over in favour of the appellant before us.
According to the Division Bench the appointment of the appellant became invalid for this non compliance of rule 5 by the Board of Appointments.
The order of appointment was quashed by the High Court with a direction that the University should make an appointment in accordance with law.
This judgment was rendered on April 15, 1969.
The appellant 's application for a certificate being turned down by the High Court, he filed an application for special leave before this Court on 9th September 1969 along with a petition for stay of the order of the High Court.
On the application being moved on September 22, 1969 the respondents were directed to show cause why special leave should not be granted but an interim stay was granted to the effect that the matter of a fresh appointment as a result of the quashing of the order of the appellant 's appointment was not to be placed before the Chancellor for his approval under section 26(4) of the Mysore University Act.
This was occasioned by the fact that the University had taken steps to make another appointment necessitated by the order of the Division Bench of the High Court and had asked the appellant to appear at an interview for the purpose fixed on September 21, 1969.
On affidavits being filed this Court after hearing the parties passed an order on November 14, 1969 modifying the earlier order of stay to the effect that the order of the High Court was to remain suspended till the disposal of the special leave petition and as soon as the Chancellor had decided the case, the parties were to be at liberty to mention the matter to this Court and in the meanwhile the appellant was to continue as Professor.
On a clarification of the Court 's order being sought for, an order was passed on August 26. 1970 to the effect that the Chancellor was free to deal with the matter notwithstanding that the application for special leave was pending in this Court.
It appears that the Board of Appointments re constituted after the decision of the High Court had advised the appointment of the first respondent as Professor and the Chancellor, in the circumstances of the case felt that he should not come to any decision during the pendency of the matter before this Court.
The Chancellor 's order was made on November 11, 1970.
On December 11, 1970 this Court granted special leave to the appel 624 lant and directed the stay to continue till the disposal of the appeal.
Although we have set out what transpired after the presentation of the special leave petition to this Court in September 1969 to give a complete picture of the events concerning the appointment of a Professor under the University Grants Scheme, we do not propose to take any notice of what the Second Board of Appointments did.
In our view, if the action of the Board of Appointments taken on June 9, 1967 and approved of by the Chancellor on June 26, 1967 was valid, the Board would have no jurisdiction to consider the matter for a second time.
The position in law appears to be as follows.
The Mysore University Act, 1956 came into force on October 3, 1956.
section 13 ,of the Act sets out the authorities of the University which include inter alia the Senate, the Syndicate, the Academic Council and the Board of Appointments.
Different sections following the above prescribe the powers and functions of the Senate, the Syndicate and their authorities.
Section 26 concerns the Board of Appointments.
Sub section
(1) of this section provides : "Appointments to the staff of the University shall be made in accordance with the rules made by the Chancellor in consultation with the Syndicate." Sub section
(2) shows how the Board of Appointments is to be constituted for the purpose of making appointments of Professors, Readers and Lecturers.
The Board is to consist of (1) the Vice Chancellor who was to be the ex officio Chairman, (2) the Head ,of the University Department in the subject concerned, except where the appointment to be made was the post of the Head of the concerned Department, (3) one member who was to be an expert in the subject concerned selected from outside the University by the Syndicate and (4) another person who was to be an expert in the subject concerned selected from outside the University by the Chancelor.
Under sub section
(4) "The decisions of the Board and in such cases as may be prescribed by the Chancellor, the decision of the Vice Chancellor shall not have effect unless approved by the Chancellor; thereafter, every such decision shall be final and shall not be called in question in any manner.
" The Mysore University Staff (Appointment) Rules came into froce on October 24, 1964.
Some supplementary Rules of re. cruitment governing the appointment of University teachers were approved by the Governor under section 26 of the Act on 8th April 1967 and these were published on May 25, 1967.
Rule 5 men 625 tioned above is one of these rules.
Rule 3 of the Supplementary Rules shows that the Board of Appointment was to be provided at the meeting with all relevant information about every candidate regarding his qualification, seniority, teaching experience and research work and under, rule 4 the Dean and the Head of the Department who were to be associated with the Board were to prepare a note regarding qualification, work etc.
of the candidate who had served in the department under them and give their opinion in writing to the Board of Appointment.
This rule further prescribed that the claims of the "senior (most)" teachers with approved service who acted in that vacancy for ' a long time shall be given due consideration.
After interviewing the candidates the Board of Appointments made its written recommendation as follows "The Board took into consideration the academic qualifications, research and teaching experience and the performance during the interview of the four candidates who appeared for the interview.
The Board in consultation with the Dean of the Faculty of Arts, unanimously resolved that Dr. G. Narulasiddiah be appointed Professor of Sanskrit on a starting salary of Rs. 1,000/ P.M. in the scale of Rs. 1000 50 1500 subject to the usual period probation nor two years.
If rule 5 is to be observed in its latter and not according to its true intent it must be said that the Board of Appointments failed to give in writing expressing the reasons for overlooking the claims of the first respondent whose total service as a teacher undeniably exceeded that of the appellant.
According to the High Court: " .
the clear intendment of rule 5 is that a superior claim to an appointment flows out of the seniority to which it refers and that that claim should not be overlooked except for reasons to be stated in writing and since the resolution of the Board of Appointments with which we are concerned does not state any reason for the supersession of such claim with which the petitioner became clothes under the rule, we are inclined to the view that the appointment becomes invalid for that reason.
" We find ourselves unable to accept the above dictum of the High Court.
In our view the rule was not intended to load the dice in favour of someone merely because of longer experience as a teacher.
The Proper construction of that rule is to regard the length of teaching experience as one of the important factors to be taken into consideration by the Board of Appointments.
However much may be the importance of the length of teaching experience the 6 2 6 rule did not provide that as the determining factor.
The rule did not lay down all the factors which were to be considered by the Board in making their selection.
Of necessity they had to consider: the academic qualifications of the respective candidates including that of the quality of their teaching and of the research work if any to their credit, their past experience and the impression which they created in the minds of the persons constituting the Board '.
Rule 5 laid particular stress to the total length of teaching experience of the candidates but it was not meant to outweigh other consideration.
In this case it appears that the academic qualifications of the appellant and the first respondent were, of the same standard.
In mere length of service the first respondent certainly was superior to the appellant.
But that by itself would not tip the scale in his favour.
The recommendation of the Board clearly shows that one of the factors which they had taken into consideration was "teaching experience" and in 1967 when the appointment was made the appellant had to his credit a period of 22 years of teaching experience while the first respondent had 29 years of service to his credit.
It is not as if the appellant was a man very much junior in age to the first respondent with a career in teaching far shorter than or negligible compared to that of the first respondent.
It must also be noted that when there was a question of appointing a temporary Reader under the University Grants Scheme in 1958 it was the appellant who was given preference to the first respondent and even as a permanent Reader he secured the appointment some months ahead of the first respondent.
The preference given to him in the past was certainly one of the factors to be taken into consideration.
In our view it would be giving preference to the letter of the rule than to its spirit if we were to hold that the recommendation of the Board of Appointments was to be treated as invalid merely because they had failed to state, in clear words, that the appellant was preferred to the first respondent although the latter had a longer period of service as a teacher.
Mr. Setalvad appearing for the appellant drew our attention to Seniority Rules which were framed with the approval of the Chancellor and came into force on 30th March 1969 during the pendency of the matter before the Division Bench of the Mysore High Court.
Rule 7 of these rules provides that : "Teachers appointed to a class of post in the University Grants Commission scale shall be deemed senior to teachers holding the same class of posts in the University scale.
" Reference was made to this rule for the purpose of showing that the appellant who had been a Reader under the University Grants 627 Scheme nearly three years before the &St respondent would be senior to him in terms of the rule if it had been in force And even otherwise counsel contended that the mere fact that the appellant had preceded the first respondent in appointment tinder the Said scheme showed that his preference over the first respondent was, not undeserved.
We do not think that we can take into account rule 7 for the purpose of our decision in this case.
Mr. Setalvad 's second contention was that it was apparent from the recommendation of the Board that rule 5 was substantially complied with and as such the High Court should not have set aside the appointment of the appellant.
He also placed reliance on sub section
(4) of section 26 as giving a finality to the approval of the Chancellor to the appointment made by the Board.
Mr. Ayyangar appearing for the first respondent contended, first, that rule 5 was divided into two parts and that the provision for a statement in writing giving reasons for ignoring a person 's total length of service as a teacher had to be complied with by the Board and any disregard of this rule rendered the appointment invalid.
Counsel argued that the rules had statutory force and the mere approval of the Chancellor under, sub section (4) of section 26 of ' the Act did not put a seal on the case so as to prevent from scrutiny the disregard of any mandatory provision of the rules framed under section 26(1) and approval of the Chancellor would not cure such illegality.
In our view, rule 5 was substantially corn plied with by the Board and the failure to record expressly the reason for disregarding the greater length of service of the first respondent did pot vitiate the appointment per se.
At best it was an irregularity which was cured by the approval of the Chancellor.
Mr. Setalvad 's last contention was that the High Court had gone wrong in quashing the appointment but should have rele gated the matter back to the Board of Appointments to comply with the requirements of r. 5 and for this he relied on two English decisions in Iveagh (Earl) vs Minister of Housing etc.(1) and Brayhead Ltd. vs Berkshire County Council(2).
In the view we have taken it is unnecessary to consider the last point raised by counsel or the effect of these two decisions.
The Board of Appointment was constituted of four persons who were eminently fitted to assess the relative merits of the candidates before them at the interview and their recommendation shows that although they had not expressly recorded any reason in terms of the rule, they had taken the teaching experience of the candidates into consideration.
Our conclusion might have been otherwise if it were shown that the Board had not considered the length of teach (1) (2) 628 ing experience of the candidates as one of the, factors for coming their decision.
In the result we allow the appeal and set aside the order of the High Court holding that the appellant was validly appointed as a Professor under the University Grants Scheme.
In the circumstances of the case, we leave the parties to bear their own costs.
Before parting with this case we cannot but express our dis approval in noting that the canker of litigiousness has spread even to a sphere of life where discipline should check ambition concerning personal preferment.
A teacher is justified in taking legal action when he feels that a stigma or punishment is undeserved but he is expected to bear with fortitude and reconcile himself to his lot suppressing disappointment when he finds a co worker raised to a position which he himself aspired after.
K.B.N. Appeal allowed.

summary/full:
Rule 5 of the Supplementary Rules promulgated under the Mysore University Act, 1956, provides that "the Board of Appointments shall give in writing the reasons for the selection of any candidate and also the basis on which the 'selection has been made and always give in writing the reasons for overlooking the claims of those who are seniors (i.e., total service as a teacher) and/or have higher qualifications.
" The first respondent whose total service as teacher exceeded that of the appellant was considered along with the appellant and two others by the Board of Appoint ments for the post of a professor.
The Board made its written recommendation that it took into consideration the academic qualification, research, teaching experience and the performance during the interview of the four candidates who appeared at the interview and resolved to appoint the appellant in the post.
The appointment was later approved by the Chancellor of the University.
The 'first respondent filed a writ petition in the High Court challenging the appointment of the appellant as being in violation of r. 5.
The High Court quashed the appointment.
It took the view that the rule was a mandatory provision and it was incumbent on the Board of Appointments to state in writing why the first respondent, although he had longer teaching experience, was passed over in favour of the appellant.
Allowing the appeal, HELD : The proper construction of r. 5 is to regard the length of teaching experience as one of the important factors to be taken into consideration by the Board of 1 Appointments.
However much may be the importance of the length of teaching experience the rule did not provide that as the determining factor.
The rule did not lay down all the factors which are to be considered by the Board in making the selection.
[625 H] In the present case the academic qualifications of the appellant and the first respondent were of the same standard.
In mere length of service the first respondent certainly was superior to the appellant.
But that by itself would not tip the scale in his favour.
The recommendation of the Board clearly showed that one of the factors which the Board had taken into, consideration was teaching experience.
it would be giving preference to, the letter of the rule than to its spirit if it were to be held that the recommendation of the Board was to be treated as invalid merely because they had failed to state in clear words that the appellant was preferred to the first respondent although the latter had a longer period of service as a. teacher.
Rule 5 was substantially complied with by the Board and the failure to record expressly the reasons for disregarding the greater length of service of the first respondent did not vitiate the appointment per se.
At best it was an irregularity which was cured by the approval of the Chancellor.
[626 C] 622


judgement:
l Appeals Nos.
2537 of 1966.
591 Appeals by special leave from the judgment and decree dated September 22, 1966 of the Andhra Pradesh High Court in Second Appeals Nos. 875 of 1961, 488 and 516 of 1962.
A. K. Sen, A. V. Rangam and T. Raman, for the appellant (in all the appeals): B. V. Subramanyam and B. Parthasarathy, for respondents 1 and 2 (in all the appeals).
The Judgment of the Court was delivered by Mitter, J.
The main question in these three appeals is, whe ther reception of secondary evidence of a written agreement to rant a lease is barred by the provisions of sections 35 and 36 of the Indian Stamp Act.
The relevant facts are as follows.
There is a rice mill in Bhimiavaram, West Godavari District, which was formerly owned by the appellant along with respondents 3, 4 and 5.
The mill was built on a site with an area of Ac.
1 75 by one K. N. Raju who had obtained a lease thereof from the guardian of respondents 1 and 2.
It was executed on 21st December 1941 and was to expire on 17th July 1956.
The appellant and respondents 3, 4 and 5 were successors in interest of the said leasehold rights.
Respondents I and 2 served notice of ejectment on the lessees to quit the site and deliver possession on the expiry of the said lease.
According to the lessees there were negotiations for a new lease.
Respondents I and 2 demanded enhanced rent and an agreement was ultimately arrived at on January 6, 1957 between the appellant and respondent No. 5 for themselves and on behalf of respondents 3 and 4 on the one hand and respondents I and 2 on the other for grant of a new lease for a period of thirty years commencing on January 1, 1957.
The rent was fixed at Rs. 5401 per annum payable every two months.
There was an option given to the lessors to purchase the rice mill It a price to be fixed by the President of the Rice Mills ' Association but in case the said option was not exercised, the lessees were entitled to remove the structures of the mill.
The lessees were to continue in possession and a deed of lease was to be executed and registered within a short time.
The agreement was written on two stamp papers of Rs. 0 12 0 each and signed by the appellant and the 5th respondent on the one hand and respondent No. I on his own behalf and on behalf of respondent No. 2.
The document was delivered to the respondent No. I after execution.
The appellant 's further case is that thereafter he effected considerable improvements to the mill costing about Rs. 30,000,/ 592 and purchased the shares of respondents 3 and 4 in the said mill but respondent No. 5 who had originally joined the appellant in the suit for specific performance of the said agreement sold his share in or about September 1965 to respondent No. 6 herein.
On March 12, 1957 respondents I and 2 instituted a suit O.S. No. 81 of 1957 in the court of the District Munsif of Bhima varam against the appellant and respondents 3, 4 and 5 besides certain other persons who were in occupation of the site, for recovery of possession after removing the rice mill and structures standing thereon on the basis that on the expiry of the old lease they had become entitled to possession.
Respondents I and 2 instituted another suit O.S. No. 100 of 1957 on 4th April, 1957 in the same court claiming damages from the appellant and respondent No. 5 for failure to deliver the site from 1st January, 1957 till date of delivery of possession.
In paragraph 6 of the plaint in this suit they expressly stated that they would file a separate suit to recover the future mesne profits.
The total claim in this suit was computed at Rs. 4,700/ being the amount due for 94 days from 1st January, 1957 to 4th April, 1957 at the rate of Rs. 501per day.
On April 5, 1958 the, appellant and respondent No. 5 instituted O.S. No. 92 of 1958 against respondents 1 to 4 praying for specific performance of the agreement to lease mentioned above with a direction that the respondents 1 and 2 should execute the lease deed.
By their written statement filed in O.S. No. 92 of 1958 respondents I and 2 denied the execution of the agreement to, lease while in the two suits for recovery of possession and damages for illegal occupation the appellant and respondent No. 5 pleaded the aforesaid agreement for lease in defence and submitted that they were entitled to remain in possession without any liability as to damages.
The three suits were tried together.
As respondents I and 2 did not produce the original agreement which according to the appellant had remained with them, oral evidence was called by the appellant to prove the execution of the said document.
In his judgment the learned Munsif held: "The plaintiffs have no right to lead any oral evidence in respect of the suit agreement to lease dated 6 1 1057.
However, in order to appreciate the case put forward by the plaintiffs in the absence of the agreement to lease oral evidence has been recorded to determine whether the plaintiffs are entitled to specific performance as the full facts must be before the court.
" Examining the evidence the learned Munsif recorded his finding that : 593 "The plaintiffs on whom the burden lies have not proved by evidence of P.Ws., I to 5 and 7 which is interested and developed that the agreement to lease dated 6 1 1957 is true and valid." O.S. No. 92 of 1958 was therefore dismissed.
O.S. No. 81 of 1957 was decreed against the appellant and others and they were directed to deliver vacant and peaceful possession after removing the constructions and the mill thereon on or before 9th July 1960.
Suit No. 100 of 1957 was decreed against the appellant and respondent No. 5 for Rs. 117 2 10.
The Subordinate Judge, Narsapur who heard the appeals from the judgment and decrees of the learned Munsif set them aside.
The suit for specific performance of the contract of agreement to lease was decreed and defendants 1 and 2 in that suit were directed to execute and register a lease deed from 1st January, 1957.
Ile accepted the oral evidence tendered on behalf of the plaintiffs in that suit and recorded that the objection regarding the admissibility of the oral evidence was raised only at the time of the argu ments on the ground that the agreement was written On a stamp paper of Rs. 1 8 0 when it should have been written on a paper with a stamp of Rs. 60/ .
According to the learned Subordinate Judge the defendants had suppressed the agreement to lease whereby the plaintiffs were deprived of the opportunity of making good the deficiency of the stamp.
The learned appellate Judge held further that the conditions mentioned in section 27 A of the Specific Relief Act had been fulfilled.
He also found that the parties were contemplating the execution of a deed of lease subsequent to the agreement and the mere fact that plaintiffs continued their possession after the expiry of the period of the previous lease did not take the case out of the purview of section 27 A of the Specific Relief Act.
The High Court in Second Appeal went elaborately into the question of the admissibility of the oral evidence regarding the agreement to lease and held that. "although the objection was raised by defendants I and. 2 in the trial court at the time of the final arguments and not before the oral evidence was received in regard to the admissibility of oral evidence, even then since section 36 is not attracted to such an objection, the oral evidence cannot be acted upon.
It is inadmissible in evidence and it cannot be received for any purpose.
" The appellant before us challenges this finding of the High Court.
Learned counsel for the appellant Mr. Sen argued that the admissibility of secondary evidence, be it oral or in writing, must 594 be primarily decided in terms of the Indian Evidence Act.
Inasmuch as the original document which was insufficiently stamped was suppressed by the defendants in the suit for specific performance, secondary evidence of the contents of the document could be led in terms of section 65(a) of the Evidence Act.
The Evidence Act imposed no bar to the reception of oral evidence by way of secondary evidence to prove the terms of the agreement to lease which was in writing and duly executed.
According to counsel the Stamp Act did not create a bar with respect to the reception of secondary evidence to prove a document which was unstamped or insufficiently stamped in any case where the party seeking to rely upon the execution of the document and the terms thereof offered to pay the penalty in terms of section 35 of the Stamp Act.
According to Mr. Sen section 35 raised a bar only in cases which were expressly excluded by proviso, (a) to section 35 and in others where the party seeking to rely on the document was not agreeable to pay the deficiency in the stamp together with the penalty in terms of the said proviso.
Mr. Sen further argued that the whole object of section 35 of the Stamp Act was that the Government revenue due by way of stamp should be protected.
But even then section 36 carved out an exception thereto and allowed the reception of an insufficiently stamped instrument in evidence when it had been admitted without objection at the initial stage.
It was not reasonable, according to counsel to limit the operation of section 36 only to cases where the original instrument was admitted in evidence without objection and logically oral evidence to prove the contents of a document which was insufficiently stamped should be subject to the same but no further infirmity and once such oral evidence was recorded without objection of the party against whom it was tendered, particularly where such party was responsible for the suppression or non production of the document, it should be acted upon by courts of law if the party tendering oral evidence was agreeable to make up the deficiency in the stamp and pay the penalty in terms of section 3 5.
We find ourselves unable to accept the submissions made on behalf of the appellant.
The Indian Evidence Act which was enacted in 1872 consolidates, defines and amends the law of evidence.
By various Chapters it deals with matters as to how facts are to be proved and which facts need not be proved.
section 59 of the Act lays down that, all facts except the contents of documents may be proved by oral evidence.
Documentary evidence is dealt with in Chapter V and section 61 provides that the contents of the document may be proved either by primary evidence or secondary evidence.
Under s.62 primary evidence means the document itself produced for inspection of the court.
section 63 shows the different kinds of secondary evidence admissible with regard to documents.
It includes several kinds of copies as specified in sub cls.
595 (1)to (3) of the section, counterparts of documents as against the parties who did not execute them in terms of cl.
(4) and oral accounts of the contents of a document given by some person who has himself seen it in terms of cl.
Under section 64 documents must be proved by primary evidence except in cases mentioned thereafter.
Section 65 allows secondary evidence to be given of the existence, condition or contents of a document in circumstances specified in cls.
(a) to (g) thereof.
Under section 91 when the relevant portion of a contract or of a grant or of any other disposition of property has been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
As the first court of appeal recorded the finding that it was the defendants who were responsible for suppression of the original agreement to lease, a finding which was accepted by the High Court, it must be held that no objection to the reception of secondary evidence by way of oral evidence can be raised under the provisions of the Indian Evidence Act.
The Indian Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act.
The Stamp Act which is now in force is an Act of 1899 but it had a fore runner in a statute of 1 879.
Chapter IV of the Stamp Act deals with instruments not duly stamped.
Section 33(1) of this Act provides that : "Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except and officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
" The relevant portion of section 35 is as below: "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped Provided that (a) any such instrument not being an instrument chargeable with a duty not exceeding ten paise only, or 596 a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument, insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.
Section 36 lays down that: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the around that the instrument has not been duly stamped.
" The first limb of section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped.
The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped.
would be tantamount to the document being acted upon by the person having by law or authority to receive evidence.
Proviso (a) is only applicable when the original instrument is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.
Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself.
section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is.
an instrument for the purpose of section 35. 'Instrument ' is defined in section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded.
There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
If section 35 only deals with original instruments and not copies section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit.
The words "an instrument" in section 36 must have the same meaning as that in section 35.
The legislature only relented from the strict provisions of section 35 597 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding.
In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered.
Once the time for raising objection to the admission of the, documentary evidence is passed, no objection based on the same ground can be raised at a later stage.
But this in no way extends the applicability of section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.
The above is our view on the, question of admissibility of secondary evidence of a document which is unstamped or insufficiently stamped, as if the matter were res Integra.
It may be noted however that the course of decisions in India in the Indian High Courts, barring one or two exceptions, have consistently taken the same view.
One of the earliest decisions is the judgment of the Judicial Committee of the Privy Council in Raja of Bobbili vs Imuganti China Sitaramaswami Garu(1).
In this case, a suit was brought by the Raja of Bobbili to obtain the proprietary possession of an estate once belonging to the family.
The original defendant was the widow of a son of the sister of the plaintiff 's paternal grandfather, a former Raja of Bobbili, by whom the estate, the subject of dispute was granted by a deed of April 5, 1848 to a cousin who had then married the then Raja 's sister.
The donee died in 1872, and his widow thereupon restored the estate to the Raja on the footing that the grant had been only for her husband 's life.
The Raja then granted the estate to another cousin who died in the same year.
This was the husband of the original defendant.
It was necessary for the Raja to show that the grant of 1848 was absolute and unconditional.
The deed of grant was however not forthcoming having been lost.
The question was whether the draft or a copy, of the instrument tendered as secondary evidence of its contents when the original instrument was shown to have been insufficiently stamped, could be, subjected to the penalty prescribed by section 34 of the Indian Stamp Act, 1879 as a preliminary to its being admissible in evidence.
The respondent denied that such a deed was ever executed and averred that the gift consisted in transferring the estate to the donee 's name in the register, upon the footing that the estate was to revert to the donor, in the event of the donee leaving no heir male of his body.
At the trial the plaintiff offered in evidence what purported to be an unauthenticated copy and the defendant objected to the admission of the (1) 23 Madras 49. 598 same on the ground that it was the copy of a document which was insufficiently stamped.
The District Judge refused to receive the document or allow it to be proved and dismissed the suit.
The appeal to the High Court of Madras was also unsuccessful, the learned Judges of the High Court holding that: "The copy should not be admitted on payment of a penalty, for the provision of the Stamp Act regarding penalty (section 39 of Act I of 1879) prescribes that such payment shall be endorsed on the document and presupposes that the document is forthcoming." Before the Judicial Committee counsel for the appellant admitted that he was not in a position to dispute that the original deed of gift dated 1848 had not been sufficiently stamped in terms of the Madras Regulation XIII of 1816 and that he would be unable to maintain his claim for the estate unless he was permitted to prove the copy of the deed and use it as secondary evidence either on due payment of a penalty in court, or upon its endorsement by the Collector.
He based his right to that remedy on the provisions of the Stamp Act of 1879.
The Judicial Committee held on the construction of the said Act that the judgment appealed from was correct observing : "These clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents which, at the time of their execution, were not stamped at all, or were insufficiently stamped.
It is only upon production of the original writ, that the Collector has the power given him or the duty imposed upon him, of assessing and charging tie penalty, a duty which he must, in that case, perform by writing an indorsement upon the writ submitted to him, which then, and not till then, becomes probative in law.
" Reference was made to, section 33 of the Act of 1879 which is in pari materia with section 33 of the Act of 1899.
section 34 of the Act of 1879 was on the same lines as the present section 35.
The Board further held that the effect of granting the remedy which the appellant maintained he was entitled to would be to add to the Act of 1879, a provision which it did not contain, and which the Legislature ,of India, if the matter had been brought under their notice, might ,possibly have declined to enact.
More than sixty years after the above decision this Court observed that the law laid down there was well settled and that a copy of an instrument could not be validated : The State of Bihar vs Karam Chand Thapar & Bros Ltd. (1).
It is not necessary to (1) ; 599 examine the facts of that case except to note that the contention put forward was whether an instrument i.e. an award received in court which had been prepared in triplicate, the other two having been sent to the parties, was an original instrument which could be used by the payment of stamp duty under section 35 of the Stamp Act and validated.
This Court held that although the document sent to the court was marked as a certified copy, it was in reality an original instrument for the purpose of the Stamp Act.
The above judgment shows that if the document tendered in court was not an original instrument but a copy the decision would have been otherwise.
However we may point out that the passage which occurs at page 835 of the report (reproduced hereinafter in part) as being quoted from the decision of the Judicial Committee is not to be found in their Lordships ' judgment.
The latter portion of the passage occurs in the judgment of the Madras High Court in Thaji Beebi vs Tirumalappa Pillai(1), but this does not in any way detract from the weight of the opinion expressed by a Bench of five Judges of this Court.
In Thaji Beebi 's case (supra) the plaintiff sued upon a "cadjan" mortgage which was said to be, in possession of the first defendant whose ancestors were alleged to have created the mortgage in favour of the plaintiffs ' ancestors.
The first defendant denied tile existence of any such deed.
The plaintiff examined two witnesses to prove the mortgage one of whom stated that he had attested the document which was unstamped.
Plaintiffs led oral evidence to prove the mortgage and also put in a petition by the first defendant 's ancestor in which the mortga e was admitted.
No objection was taken by the defendants to the reception of the secondary evidence.
The trial court found the mortgage proved but dismissed the suit on the defendants ' plea that the plaintiffs ' ancestors had sold away the lands.
On appeal the District Judge upheld the decision on the ground that the trial court ought not to have received secondary evidence of the mortgage.
The High Court dismissed the Second Appeal on the same ground.
The question as to whether it was open to.
the plaintiff to rely on the oral evidence of the alleged execution of the instrument and the alleged passing of possession of the property under that instrument in order to show that that possession operated to create by prescription only the title of a mortgage in the defendants, was answered in the negative by observing : "To hold otherwise would be to give some effect to the unstamped instrument inasmuch as it would necessary connect the possession with the contents of the document relating thereto; and that would be contrary to the express provisions of section 35 of the Stamp Act which (1) 30 Madras 336 at 337.
600 lays down that an instrument chargeable with duty shall not only not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, but also that it shall not be "acted upon" by any such person unless duly stamped.
" The decisions of different High Courts make it quite clear that the cause of the non production of the original instrument is immaterial i.e. whether it was lost or whether it was destroyed or even if it was the allegation of the party seeking to prove its contents by alleging that the document was suppressed by his opponent.
In Chidambaram vs Meyyappan(1) the plaintiffs produced an unstamped document as the basis of their claim.
Before the trial commenced a mob invaded the court and set fire to it with the result that records of many cases including the record of the above case were destroyed.
When the trial commenced the plaintiff sought to put in a copy of the document and it was objected to on the ground that the copy could not be stamped even on payment of penalty.
The Subordinate Judge without admitting the document but leaving the question, of its admissibility open until he had heard the arguments of counsel, marked it as an exhibit.
In rejecting the plaintiffs appeal the learned Judges of the Madras High Court referred to the decision of the Privy Council in Raja of Bobbili 's case ( 2 ) and observed that the destruction by the mob 's action put the plaintiffs in no better position.
Numerous decisions on the point had been referred to by the learned Judge hearing the Second Appeal in the High Court but we do not think it necessary to take note of them in any detail.
Mr. Sen relied strongly on certain observations in a judgment of the Rangoon High Court in Maung Po Htoo and three vs Ma Ma Gyi and one( 3 ) .
This arose out of a suit for administration of the estate of one Daw Thet San and for a declaration that a deed of gift executed by him was void.
The District Court found that the deed of gift was void as being a testamentary disposition and (,ranted a declaration to that effect.
In appeal to the High Court the decision that the deed of gift was void was not contested and the only question for decision was whether the adoptions mentioned therein were proved.
The appellants wished to use a certain part of the deed as evidence to prove that the plaintiff and one Tun Sein were not adopted while the respondents claimed that it could not be admitted in evidence for any purpose.
The deed itself was not produced which admittedly had been in possession of Po Htoo who put in a certified copy alleging that he had lost the original.
On a consideration of the entire evidence the District Judge found (1) A.I.R. 1946 Madras 298 (2) 23 Madras Rangoon 363.
601 that the original deed of gift was insufficiently stamped.
This decision was not questioned before the High Court but the appellant claimed that it could not be admissible in evidence and was riot to 'be considered for any purpose.
Referring to the decision of the Judicial Committee and the passage which we have quoted already the Judges of the Rangoon High Court remarked that their Lordships observation (quoted by us earlier) that "Those clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents, which , at the time of their execution, were not stamped at all, or were insufficiently stamped." did not intend to go as far as their words suggested.
According to the Rangoon Judges: ".
section 35 of the present Act, read with the provisions of the Evidence Act, excludes both the original instrument itself and secondary evidence of its contents.
Similarly, under section 36, when either the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same suit, on the ground that the instrument was not duly stamped.
In this view, they held that the terms of the deed of gift could be considered.
With all respect to the learned Judges it appears to us that both the premises of the last sentence of the above quotation and the conclusion based on the same are incorrect.
Neither under the decision of the Judicial Committee nor the express words of section 34 of the Stamp Act of 1879 mentioned in that judgment (present section 36) allow the leading of secondary evidence of the contents of an insufficiently stamped document.
As we have expressed our view already section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of secondary evidence.
Section 36 only,lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage.
It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be.
In the case before the Judicial Committee the copy was one other than ,the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility in evidence.
For the same reason we must hold that the dictum in Satyavati vs Pallayya(1) that (1) A.I.R. 1937 Madras 431 at 432.
602 "section 35 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted.
" is not good.
Learned counsel for the appellant also relied on the decision in Ponnuswami vs Kailasam(1).
In this case a suit as filed for recovery of the loans which were evidenced as two documents described as hand letters which were admittedly unstamped.
Before the trial stamp duty and penalty was levied by the court on the tooting that they were bonds.
The defendant admitted the execution of the two documents but pleaded that in substitution of his liability under them he had executed a promissory note and had made payments towards the same, leaving a balance of Rs. 40/only payable on the loan.
Neither party let in any evidence.
The defendant raised the only contention that the suit was not sustainable on the two documents because they are inadmissible in evidence for any purpose.
The learned Judge in revision took the view that it was not necessary for him to decide as to the exact nature of the two documents to determine whether they were admissible in evidence but he went on to add : "Assuming that these two documents should not have legally admitted in evidence, nevertheless it is contended for the petitioner. . that as the defendant had admitted the execution of the documents and had only pleaded a substitution of liability by the execution of another promissory note and a partial discharge towards it there was no necessity for the plaintiff to adduce proof of his claim by seeking to get the two documents admitted in evidence.
In other words the plaintiff will be entitled to a decree on the failure of the defendant to make out the Plea set up by him in defence.
" We do.
not think this judgment helps the appellant.
If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty.
The learned Judge never mean to lay down, as is contended for by Mr. Sen, that the defect of insufficiency of stamp is cured by the admission of execution of the document.
The learned Judge of the Madras High Court relied on an earlier decision of that court in Alimana Sahiba vs Subbarayudu (2)wherein a suit had been filed on a promissory note which bore a stamp paper but the same was not cancelled.
The defendant admitted the execution of the promissory note sued on but pleaded discharge.
Subsequently at the stage of the argument the defendant raised a legal objection (1) A.T.R. 1947 Madras 422.
(2) A.I.R. 1932 Madras 693.
603 to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by section 12 of the Stamp Act and contended that the promissory note should accordingly be.
treated as unstamped for any purpose.
In Alimana Sahiba 's case (supra) the learned Judge stated in clear terms that "Under the provisions of section 12 (of the Stamp Act) therefore it must be taken that this promissory note was not duly stamped and accordingly if any question arose as to its admissibility in evidence the same may have to be held to be inadmissible." The learned Judge however took the view that as facts admitted need not be proved the circumstance that the promissory note was not admissible in evidence is immaterial for the purpose of this case.
No doubt the learned Judge added (see at p. 696) "Now when once this document has been admitted in evidence and marked as an exhibit ' then having regard to the provisions of section 36, Stamp Act, its admissibility could not be re opened on the ground of the document not having been duly stamped.
That position being clear under the provisions of section 36, Stamp Act, the whole discussion would thus seem to be entirely unnecessary and for no purpose, so far as the facts of this case are concerned.
" It was wholly unnecessary, as was pointed out by the learned Judge himself, to consider the question of admissibility under section 36 of the Act.
His decision really rested on the conclusion that a fact which is admitted did not require proof.
The case is not an authority for the proposition that secondary evidence of a document is to be treated on the same footing as an unstamped or insufficiently stamped original document.
In the result the appeal is dismissed with costs.
The respondents moved an application C.M.P. No. 87 of 1971 under Order 47 Rule 3of the Rules of this Court for a direction that a relief for future mesne profits from the date of the suit be added to the decree.
On the fact of this case we cannot allow the application.
The respondents in their own plaint had stated that they would file a suit for future mesne profits and it was because of this that the courts below did not grant any such relief.
R.K.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
On the question whether reception of secondary evidence of a written agreement to grant a lease, insufficiently stamped, is barred by the provisions of sections 35 and 36 of the Stamp Act, HELD :The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped.
The second liml of the section which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for, allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would have the effect of the document being "acted upon" by the person having by law or authority to receive evidence.
Proviso (a) is applicable only when the original instrument is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.
Clearly, secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself.
There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
[596 D] If Section 35 only deals with original instruments and not copies, section 36 cannot he so interpreted so as to allow secondary evidence of an instrument to have its benefit.
The words "an instrument" in Section 36 must have the same meaning as in Section 35.
The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding.
[596 H] State of Bihar vs Karam Chand Thapar & Bros. Ltd. ; Raja of Bohbili vs Inuganti China Sitaramaswami Garu, 23 Madras 49.
, Thai] i Beehi vs Tirumalappa Pillai, 30 Madras 336 at 337 and Chidambaram vs Mayyappan, A.I.R. 1946 Madras 298, referred to.
Observations in Maung Po Htoo and three vs Ma Ma Gyi and one, I.L.R. 4 Rangoon 363 and Satyavati vs Pallayya, A.I.R. 1937 Madras 431 at 432, disapproved.
Ponnuswami vs Kailasam, A.T.R. 1947 Madras 422, and Alimana Sahiba vs Subbarayudu, A.T.R. 1932 Madras 693, explained.


judgement:
iminal Appeals Nos.
151 to 158 of 1966.
Appeals from the judgment and order dated December 30.
1964 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revisions Nos.
81 D to 83 D, 107 D and 129 D to 132 D of 1964.
Bishan Narain, B. P. Maheshwari and N. K. Jain, for the appellant (in all the appeals).
C. K. Daphtary, N. N. Goswami, K. L. Mehta and section K. Mehta, the respondent (in Cr. A. No. 151/1966).
K. L. Gossain, N. N. Goswami, K. L. Mehta and section K. Mehta, the respondent (in Cr.
152 to 158 of 1966).
section K. Mehta for the intervener.
The Judgment of the Court was delivered by Dua, J.
These eight appeals with certificate (Crl.
Al) peals Nos. 151 to 158 of 1966) raise a common question of law and would, therefore, be disposed of by a common judgment.
In deed, all the appeals in the Punjab High Court were also disposed of by a learned single Judge of that Court sitting on circuit at Delhi by a common judgment and another learned single Judge of the same Court similarly certified the cases to be fit for ,appeal to this Court by a common order.
The only question canvassed at the bar requiring determina tion by us is whether the respondent is liable to be prosecuted under the Prevention of Food Adulteration Act, 37 of 1954 (hereafter called the Adulteration Act) for selling adulterated vinegar when the vinegar is being sold under a licence granted under the Fruit Products Order, 1955 (hereafter called the Fruit Order) made by the Central Government under section 3 of the Essen 609 tial Commodities Act.
The High Court has relying on an un reported Bench decision of the Punjab High Court in State vs RaJ Kumar (Crl. A. 996 f 1961 decided on October 29, 1962) held that they cannot be prosecuted.
It was argued in the High Court that the rules made under the Adulteration Act had come into force after the enforcement of the Fruit Order and vinegar being mentioned as an article of food in those rules, prosecution under both the provisions of law was permissible.
Reliance in support of this argument was also placed on section 26 of the General Clauses Act.
This argument was not accepted and it was observed that the special provisions of the Fruit Order had overriding effect and, therefore, a manufacturer of Fruit Products could only be prosecuted under the provisions of the Fruit Order.
Prayer for reference to a larger Bench for reconsideration of Raj Kumar 's case (supra) did not find favour with the learned single Judge.
In this Court the view taken in Raj Kumar 's case (supra) was sought to be supported by the learned counsel for the, respondent.
The provisions of the Fruit Order and of the Adulteration Act, it was contended, could not harmoniously co exist on the statute book, as compliance with one would, in certain contingencies, result in violation of the other some respects.
With respect to the particular charges tried in the cases in appeal, however, no attempt was made on behalf of the respondents to show that there was any fatal conflict or inconsistency between the two provisions.
The question before us accordingly lies within a very narrow compass.
The appellant urged that there is no implied repeal of the Adulteration Act by the Fruit Order in so far as the sale of vinegar is concerned, whereas the case of the respondent is that there is an implied repeal and the respondents are not liable to be prosecuted under the Adulteration Act for violating its provisions.
Shri Bishan Narain sought support for his submission from Om Prakash Gupta vs State of U.P. (1) and T. section Baliah vs T. section Rangachari (2).
In the former case section 5 (1 ) (c) of the Prevention of Corruption Act was held not to repeal section 409 I.P.C. The decision of the Punjab High Court (Khosla and Falshaw, JJ.) in State vs Gurcharan Singh(3) holding to the contrary was overruled.
In the latter case section 52 of the Income tax Act, 1922 was held not to repeal section 177, T.P.C.
It is unnecessary to refer in detail to the facts of all the eight cases separately as no such reference was made by either side at the bar.
Shri Bishan Narain for the appellant, by way of illustra (1) ; (2) ; (3) A.I.R. 1952 Punjab 89.
610 tion made a passing reference to the facts of Crl.
Appeal No. 155 of 1966.
From the record of that appeal we find that samples of (i) sugar cane juice vinegar, (ii) vine (pure) vinegar and (iii) pure jaman vinegar, were takes by a Food Inspector from the shop of the respondent on October 17, 1960 and on the 'same having been found highly adulterated and unfit for human consumption because of the presence of sulphuric acid which is prohibited, complaints under sections 7/16 of the Adulteration Act were instituted by the Municipal Prosecutor in December, 1960.
After the prosecution evidence was recorded, the respondent Shiv Shan ker applied to the trial magistrate in October, 1963 praying that the prosecution be dropped.
In this application it was admitted that the prosecution had arisen out of a raid dated October 17, 1960 at the promises of the accused "when allegedly samples of vinegar were taken which are stated to be adulterated because of the presence of sulphuric acid".
It was pleaded that the petitioning accused had secured in 1960 a licence under the Fruit Order and vinegar whether brewed or synthetic being a food product and standard specification for such vinegar being tabulated in Part XIV attached to the Second Schedule of the Fruit Order, prosecution without the, previous sanction of the Licensing Officer as required by cl. 15 of the said Order was unauthorised.
Prosecution under the Adulteration Act was on this ground pleaded to be incompetent.
In the application reliance in support of this plea was placed on the unreported Bench decision of the Punjab High Court in Raj Kumar 's case in which according to the accused it had been held that a licensee under the Fruit Order could not be prosecuted for any contravention of that Order or of the Adulteration Act without the previous sanction of the Licensing Authority appointed under the Fruit Order.
The trial magistrate basing himself on an unreported single Bench decision of the Punjab High Court and on section 26 of the General Clauses Act rejected this application.
On revision, the Additional Sessions Judge relying on the decision in Raj Kumar 's, case (supra) made a reference to the High Court recommending that the proceedings be quashed.
J. section Bedi, J., relying on Raj Kumar 's case (supra) quashed the pro ceedings.
section K. Kapur J., who certified the case to be fit for appeal after quoting a passage from Raj Kumar 's case (supra) considered the question raised to be important enough for appeal to this Court.
The general principles governing implied repeal appear to us to have long since been settled.
The difficulty is normally experienced in their application to a given case.
From the passage quoted by Kapur J., from the unreported Bench decision in Raj ' Kumar 's case (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them.
We accordingly, 611 consider it proper to broadly restate the general rule.
It was laid in Paine vs Stater(1) that when two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier.
As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect.
This is essential in the interest of certainty and consistency in the laws which the citizens are enjoined and expected to.
The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in.
clear terms.
The courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time.
The repeal must, if not express, flow from necessary implication as the only intendment.
The provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd consequences, which intention could not reasonably be imputed to the legislature.
It is only when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained.
To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning and effect both of the earlier and the later statute.
Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them.
The meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the earlier law shall cease or shall only be supplemented.
If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface.
Statutes in pari materia although in apparent conflict should also so far ,is reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict.
The same rule of irreconcilable repugnancy controls implied repeal of 'a general by a special statute.
The subsequent provision treating a phase of the same genera subject matter in a more minute way may be intended to imply repeal pro tanto of the (1) 612 Repugnant general provision with which it cannot reasonably co,exist.
When there is no inconsistency between the general and the special statute the latter may well be construed as supplementary.
In the light of these broad guidelines we may now examine the two statutes as they stood in 1960 because the cases with which we are concerned relate to that year.
The history and the scheme of the two statutory provisions would be helpful in discovering the legislative intent on the question of implied repeal.
Turning first to the Adulteration Act, it was enacted by the Parliament to make provision for the prevention of adulteration of food and it came into force on June 1, 1955.
Previously corresponding laws on adulteration of foodstuffs were in force in different States, having been enacted by their respective legislatures.
All those laws were repealed by section 25 of the Adulteration Act.
It may be pointed ,out that under the Government of India Act, 1935 "adulteration of foodstuffs and other goods" was a provincial subject whereas under the Constitution it is included in the Concurrent List.
Section 2(i) of this Act which defines the word "adulterated" con sists of several sub clauses.
One of these sub clauses is (1) according to which "an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities Which are in excess of the prescribed limits of variability".
Clause (v) of section 2 defines "food" to mean "any article used as food or drink for human consumption other than drugs and water and includes : (a) any article which ordinarily enters into or is used in the composition or preparation of human food, and (b) any flavouring matter or condiments.
According to cl.
(ix) an article of food shall be deemed to be "misbranded" if it falls within an) one of the sub clauses (a) to (k).
It is not necessary to reproduce all these sub clauses.
"Pack age" has ' been defined in cl.
(X) to mean "a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed".
We have referred to the definitions of "misbranded" and " package" because one of the cases before us (Crl. A. 154 of 1966) is a case of alleged misbranding, the remaining seven cases being ,of alleged adulteration.
Section 5 prohibits import of, inter alia, adulterated and misbranded food and all articles of food in contravention of any provision of the Act or of any rules made thereunder.
Section 7 prohibits manufacture for sale or store and also sale and distribution of, inter alia, adulterated and misbranded food land of articles of food, in contravention of the Adulteration Act and the Rules made thereunder.
Section 8 provides for appointment of Public Analysts and section 9 for the appointment of Food Inspectors.
The powers of Food Inspectors are contained in section 10.
He possesses very wide powers for the purpose of effectively achiev 613 ing the statutory object of preventing the manufacture, sale and distribution etc., of adulterated articles of food.
The procedure for taking samples of food by the Food Inspector for analysis is prescribed in section 11 and the report of the Public Analyst is made admissible by section 13.
The proviso to sub section
(5) of section 15 makes the certificate signed by the Director of Central Food Laboratory final and conclusive proof of the facts stated therein.
The Central Food Laboratory is established by the Central Government under section 4 for the purpose of carrying on functions entrusted to it by the Adulteration Act or by the Rules made thereunder.
Section 16 provides for penalties for offences under the Adulteration Act and cl.
(a) of sub section
(1) makes it an offence for any person, whether by himself or by any person on his behalf to import into India or manufacture for sale or to store, sell or distribute any article of food in contravention of any of the provisions of the Act or of any rules made thereunder.
In the prosecution for an offence pertaining to the sale of an adulterated or misbranded article of food section 19 makes impermissible the defence that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased an article for analysis was not prejudiced by the sale.
Section 20 prohibits cognizance and trial of offences under the Act except when prosecution is instituted by or with the written consent of the State Government or a local authority or a person authorized in this behalf by such Government or authority.
Under the proviso to this section a purchaser referred to in section 12, is, however, empowered to institute a prosecution if he produces in court a copy of the report of the Public Analyst along with the complaint.
Section 21 overrides section 32, Cr.
P.C. in the matter of sentence to be passed under this Act by the Presidency Magistrates or Magistrates of 1 Class, trying offences under the Act.
Section 23 confers on the Central Government wide powers to make rules under the Act after consulting the Central Committee for Food Standards appointed by the Central Government under section 3.
Section 24 empowers the State Government, (after consultation with the Central Committee for Food Standards and with previous publication) to make rules for giving effect to the provisions of the Act in matters not covered by section 23.
Various States have actually framed rules under this section.
We may now briefly refer to the Prevention of Food Adultera tion Rules, 1955 (hereafter called the Adulteration.
Rules).
These rules were made by the Central Government under section 4(2) and section 23(1) of the Adulteration Act and were published in the Official Gazette as per notification dated September 12, 1955.
The rules other than those contained in Part III Appendix B Item A.12 Margarine, Part VI and Part VII came into force on the date of 614 their publication in the Official Gazette : the rules contained in Part III, Appendix B, Item A.12 Margarine came into force on June 1, 1956 and the rules contained in Part VI and Part VII came into force on December 1, 1956 : vide r. 1(3).
Under section 23(2) (prior to its amendment in 1964) all rules made under sub section
(1) had to be laid as soon as possible before both Houses of Parliament.
By Act 49 of 1964 sub section
(2) was amended so as to provide for every rule made under sub section
(1) to be laid before each House of Parliament while in session, for a total period of 30 days in order to afford an opportunity to the two Houses to study and to modify or annul it for, future if both Houses so agree.
We have referred to this amendment as some of the rules were amended thereafter.
The effect of the subsequent amendment of some of the rules will be noticed later.
The Adul teration Rules clearly bring out the anxiety of their authors to see that wholesome food is sold to the citizens.
The duties and powers of Food Inspectors as contained, inter alia, in rr. 9 and 1 3, broadly illustrate this anxiety.
These rules also indicate that the framers of the Rules were not unaware of the different provisions of the Fruit Order.
By way of illustration reference may be made to r. 50 which prescribes conditions of licence to manufacture, sell, stock, distribute or exhibit certain articles of food.
In cl.
(1) of sub r.
(1) of this rule the fruit products covered under the Fruit Order and some other articles have been excluded from the operation of this rule.
This clause was amended twice, once in November, 1956 and again in April, 1960.
Had the Adulteration Act been intended to be impliedly repealed by the Fruit Order (which would also mean implied repeal of the rules) it would have been unnecessary to expressly exclude such fruit products from the operation of this rule.
Rule 5 and Appendix B of these Rules came into force on December 1, 1956 after the promulgation of the Fruit Order.
According to r. 5 the standard of quality of the various articles of food specified in Appendix B are as specified therein.
In Appendix B item at sl.
No. A.16 deals with "fruit products".
But the articles of fruit products dealt with in A. 16.01 to A. 16.12 clearly show that vinegar is not included in the expression "fruit products".
Vinegar is dealt with in A.20 and synthetic vinegar in A.20.01.
Both these items were added in April, 1960.
We may now turn to the Essential Commodities Act, 10 of 1955 and the Fruit Order.
The Essential Commodities Act was enacted in 1955 with the object of providing, in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities.
It came into force on April 1, 1956 repealing the Essential Commodities Ordi 615 nance No. 1 of 1955 which had been promulgated with the same object and enforced on January 26,1955, the date of the expiry of the Essential Supplies (Temporary) Powers Act 26 of 1946.
The last named Act had replaced the Essential Supplies (Temporary Powers) Ordinance No. XVIII of 1946 which had come into force on October 1, 1946.
That Ordinance was promulgated with the object of continuing, during a limited period, powers to control the production, supply and distribution of, and trade and commerce in, foodstuffs and certain other commodities.
To empower the Indian Legislature to enact law on this subject matter the British Parliament had passed India (Central Government and Legislation) Act, 1946(9 and 10 Geo.
Vl, c.39).
The lndian Legislature not being in session the Ordinance was promulgated to meet the emergency and this was replaced by Act 26 of 1946.
Reference has been made by us to this past history for the purpose of indicating the different objects and purposes intended to be achieved by the two legislative measures.
Section 2 of the Essential Commodities Act which is the definition section defines in cl.
(a) "essential commodity to mean any of the classes of commodities stated in sub cls.
(i) to (xi).
Sub clause (v) refers to "foodstuffs, including edible oil seeds and oils" and cl.
(xi) confers power on the Central Government to declare by a notified order any other class of commodity to be an essential commodity for the purposes of the Act, being a commodity with respect to which Parliament has power to make laws by virtue of Entry 33 in List III in the 7th Schedule to the Constitution.
Section 3 of the Act confers on the Central Government power to control production, supply, distribution etc., of essential commodities by providing, by an order, for regulating or prohibiting the production, supply and distribution of those commodities and trade and commerce therein.
Every order made under this section has to be laid before both Houses of Parliament as soon as may be after it is made.
By virtue of section 6 Orders made under section 3 have effect notwithstanding anything inconsistent there ,with contained in any enactment other than the Essential Commodities Act.
Section 7 provides for penalties for contravention of orders made under section 3.
Under section 11 courts are prohibited from taking cognizance of offences punishable under this Act except on a report in writing of the facts constituting such an offence made by a person who is a public servant as defined in section 21, I.P.C. Section 12 of this Act vests in the Presidency Magistrates and Magistrates of 1 Class power to pass sentences of fines exceeding Rs. 1,000/ on convicted persons notwithstanding the restriction in this respect imposed on their powers by section 32, Cr.
P.C. As already noticed earlier, an ordinance called the, Essential Corn modifies Ordinance, 1 of 1955 had been promulgated on the expiry of the Essential Commodities (Temporary Powers) Act and the present Act was passed to replace that Ordinance.
6 16 It may appropriately be pointed out at this stage that it was not the respondent 's case that the Essential Commodities Act had the effect of impliedly repealing the Adulteration Act for the purposes of these cases.
The only argument urged was that the Fruit Order had that effect and its overriding effect by virtue of section 3 of the Act was strongly emphasised.
We may now turn to the Fruit Order (S.R.O. 1052 dated 3rd May, 1955 published in the Gazette of India dated 14th May, 1955) which was made by the Central Government in exercise of the powers, conferred on it by section 3 of the Essential Commodities Act.
Clause (2) of this Order, which is the definition clause, defines the expression "fruit product" in sub cl.
(d) and "vinegar, another brewed or synthetic" is included in this expression as per item (ii) of this sub clause. "Licensing Officer" as defined in sub cl.
(g) means the Agricultural Marketing Adviser to the Government of India and it includes any other Officer empowered in this behalf by him with the approval of the Central Government.
"Manufacturer" as defined in sub cl.
(h) means a licensee engaged in the business of manufacturing in fruit products for sale and includes a person purchasing such fruit products in bulk and repacking them for sale either by himself or through someone else.
Clause 4 prohibits all persons from carrying on business of manufacture except and in accordance with the terms of an effective licence granted to him under this Order in Form "B".
Clause 5 prescribes procedure for applications for the grant of a licence under cl. 4.
Clause 7 enjoins the manufacturers to manufacture fruit products in conformity with the sanitary requirements and the appropriate standard of quality and composition specified in the Second Schedule to the Order and cl. 8 lays down the requirements to be complied with by the manufacturers in regard to the packing, marketing and labelling of containers, of fruit products.
Clause 10 prohibits sale, exposure for sale, despatch or delivery to any agent or broker for the purpose of sale, any fruit products which do not conform to the standard of quality and composition specified in the Second Schedule or which are not ,packed, marked and labelled in the manner laid down in the Order: ,the proviso to this clause contains directions for fruit products imported into India.
Clause 12 contains a mandate for every manufacturer to comply with the directions and orders issued to him and failure to do so is to be deemed to be a contravention of the provisions of the Order.
According to cl. 15 no prosecution for contravention of any of the provisions of this Order is to be instituted without the previous sanction of the Licensing Officer.
The object and purpose of the Adulteration Apt is to eliminate the danger to human life and health from the sale of unwholesome articles of food.
It is covered by Entry 18, List III of the 7th Schedule to the Constitution.
The Essential Commodi 617 ties Act on the other hand has for its object the, control of the production, supply and distribution of, and trade and commerce in,.
essential commodities and is covered by Entry 33 of List III.
In spite of this difference in their main objects, control of production and distribution of essential commodities may, to an extent from a. broader point of view include control of the quality of the essential articles of food and, thus considered, it may reasonably be urged that to some extent it covers the same field as is covered by the provisions of the Adulteration Act.
The two provisions may, therefore, have within these narrow limits co terminus fields of operation.
On this premise we have to see if the two provisions can stand together having cumulative effect and in case they cannot, which provision has the overriding or controlling effect.
It is needless to point out that they can stand together if the powers are intended to be exercised for different purposes without fatal inconsistency or repugnancy.
At the bar Shri Daphtary in his usual persuasive manner argued that there is an irreconcilable conflict between the two statutory provisions and the Fruit Order being, not only of a date later than the Adulteration Act but also having, by virtue of section 3(6) of the Essential Commodities Act, overriding effect over all other laws, it must prevail over the Adulteration Act and Rules.
He pointed out that under the Fruit Order the prosecution can be instituted only with the previous sanction of the Licensing Officer whereas under the Adulteration Act even a purchaser may, without any such sanction, institute a prosecution merely by producing along with his complaint a certificate from the Public Analyst.
He also drew our attention to section 20 A of the Adulteration Act according to which, unlike the Fruit Order, the Court trying an offence under that Act is empowered to implead the manufacturer, distributor or dealer of any article of food, it is satisfied that he is also concerned with, that offence, and proceed against him as though the prosecution had been instituted against him under section 20.
We do not think this section in any way reflects the legislative intention of implied repeal of the Adulteration Act by the Fruit Order.
The two statutory provisions can operate within their respective spheres without giving rise to any absurdity or such grave inconvenience as would impel the court to sustain the plea of implied repeal.
, Incidentally it may also be pointed out that this section was added by Act 49 of 1964 which came into force on March 1, 1965 long after 1960 when the present cases were started.
Shri Daphtary developed his argument by adding that if the respondents have manufactured for sale and have sold vinegar in accordance with the terms of the licence granted to them under the Fruit Order then imposition of further restrictions under the Adulteration Act and Rules with a threat of severe penal consequences for violation of those provisions would 618 be in direct conflict with the mandate or directions under the Fruit Order.
The counsel contended that at least the freedom to manufacture and sell vinegar as permitted by the Fruit Order is curtailed or further circumscribed by the Adulteration Act and Rules and this must necessarily cut across the provisions of the Fruit Order.
He illustrated his point by submitting that under the Fruit Order use of colouring matter is more liberal than under the Adulteration Act and Rules.
In view of these conflicting provisions the Adulteration Act and Rules, according to Shri Daphtary must be held to have been impliedly repealed by the Fruit Order.
We are unable to agree with this submission.
The two statutory provisions, for the purpose of effectuating their respective objects, have imposed ,different restrictions on the respondents when they manufacture and sell vinegar whether brewed or synthetic.
We are, however, '.Informed at the bar that in the present case the disputed vinegar is synthetic.
In the interest of public health the respondents have to comply with the provisions of Adulteration Act and Rules and in the interests of equitable distribution of essential commodities including the articles of food covered by Essential Commodities Act and the Fruit Order they have to comply with the provisions of the Fruit Order.
The provisions of the Adulteration Act and of the Fruit Order to which our attention was drawn seem to be supplementary and cumulative in their operation and no provision of the Fruit Order is shown to be destructive of or fatal to any ,provision of the Adulteration Act or the Rules made thereunder So as to compel the court to hold that they cannot stand together.
If the Adulteration Act or Rules impose some restrictions on.
the manufacturer, dealer and seller of vinegar then they have to comply with them irrespective of the fact that the Fruit Order imposes lesser number of restrictions in respect of these matters.
The former do not render compliance with.
the latter impossible, nor does compliance with the former necessarily and automatically involve violation of the latter.
Indeed, our attention was not drawn to any provision of the Adulteration Act and Rules, compliance with which would result in breach of any mandate, whether affirmative or negative, of the Fruit Order.
We are, therefore, unable to find any cogent or convincing reason for holding that the Parliament intended by enacting the Essential Commodities Act or the Fruit Order to implidely repeal the provisions of the adulteration Act and the Rules in respect the statutes can function with full the provisions of the Adultera of the vinegar in dispute.
Both vigour side by side in their own parallel channels.
Even if they happen to some extent to overlap.
section 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty.
This section lays down that where an Act or omission constitutes an, ' offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not 619 be liable to be punished twice for the same offence.
If, therefore, the provisions of the Adulteration Act and those of Fruit Order happen to constitute offences covering the same acts or omissions then it would be, open to the prosecuting authorities to punish the offender under either of them subject to the only condition that a guilty person should not be punished twice over.
There is also another aspect which has to be kept in view.
Both the Adulteration Act and the Essential Commodities Act have been amended from time to time after their enactment.
Being governed by Entries in List III of the 7th Schedule even the States have power to amend these enactments and indeed they have been so amended in some States.
The subsequent amendments of the Adulteration Act and of the Essential Commodities Act by the Parliament and the amendment of the Adulteration Rules would also tend to negative any legislative intendment of implied repeal of the Adulteration Act by the Essential Commodities Act or the Fruit Order.
It may be recalled that cl.
(1) of sub r.
(1) of r. 50 of the Adulteration Rules was amended in 1956 and again in 1960 and the amended clause is indicative of the rule making authority being conscious of both the statutory provisions being operative in their respective fields at the same time, thereby negativing implied repeal.
A.20 dealing with "vinegar" was also added in Appendix B of the Adulteration Rules in 1956 and A. 20.01 dealing with " synthetic vinegar" was added in April, 1960.
A passing reference may also be made to some of the relevant amendments in some rules made subsequent to the enforcement of the amended section 23 (2).
In r. 55 in items at sl.
19 and 20, dealing with pickles and chutnies made from fruit or vegetables and with tomato and other sauces, respectively, the preservatives mentioned in cl. 2 were amended.
Similarly in r. 51(2) the table containing articles like fruit and vegetable juices including tomato juice was amended.
Both the above amendments were made in December, 1965.
It may here be pointed out that pickles, chutnies, tomato products, kutchups, sauces and also other unspecified items relating to fruits or vegetables are included in the definition of "fruit product" under the Fruit Products Order.
These amendments, though made after 1960, do seem to further negative the intendment of implied repeal as argued on behalf of the respondent.
In view of the foregoing discussion it seems to us that the two statutory provisions can harmoniously operate without causing confusion or resulting in absurd consequences ' and the scheme of the Adulteration Act and Rules can without difficulty fit into the scheme of the Fruit Order under the Essential Commodities Act.
The challenge on the ground of implied repeal must, therefore, be rejected.
Incidentally we may note that the view taken by the learned single Judge in this case was later overruled by a Full Bench of the 918 Sup.
C.I./71 620 Delhi High Court in Municipal corporation vs Harnarain (Crl. A. No. 163 of 1967 decided in May, 1969).
Shri Daphtary, as a last resort, tried to press into service article 14 in his challenge to the prosecution of the respondent.
According to him the prosecuting authorities have an unguided licence to prosecute his clients under one or the other statute and since the penalty under the Adulteration Act is more severe than that under the Fruit Order the principle of equality before the law is violated As this point was not taken in any of the courts below we did not permit him to raise it in this Court.
It would, however, be open to the respondent, if so advised, to raise this point in accordance with law in the court below, because the cases have not yet been finally disposed of.
The competence of the prosecution having been challenged at an intermediate stage, the cases will have to go back to the trial court.
As these cases have been pending since 1962 the trial court should dispose them of with due dispatch and without any further avoidable delay.
The appeals are accordingly allowed and the cases remitted to the trial court for further proceedings according.
to law in the light of the observations made above.
R.K.P.S. Appeals allowed.

summary/full:
The respondent, who was selling Vinegar under a license granted under the Fruit Products Order, 1955, made by the Central Government under section 3 of the Essential Commodities Act, was prosecuted under the , for selling adulterated vinegar.
He pleaded that vinegar, whether brewed or synthetic, being a food product and standard specification for such vinegar being tabulated in attached to the Second Schedule of the Fruit Order, persecution without the previous sanction of the licensing Officer as required by clause 15 of the said order was incompetent.
The trial judge rejected the contention.
But the High Court quashed the proceedings.
It was observed that the special provisions of the Fruit Order had overriding effect and therefore a manufacturer of fruit products could only be prosecuted under the provisions of the Fruit Order.
In the appeal to this Court it was contended for the respondent that there was an irreconcilable conflict between the two statutory provisions, and the Fruit Order being, not only of a date later than the Adulteration.
Act but also having, by virtue of section 3(6) of the Essential Commodities Act overriding effect over all other laws, it must prevail over the Adulteration Act and the rules.
On the question whether the Fruit Order impliedly repeals the Adulteration Act, HELD : The plea of implied repeal must fail and the appeals must be allowed.
To determine if a later statutory provision repeals by implication an earlier one it is necessary to scrutinise and consider the true meaning and effect both of the earlier and the later statute.
If the objects of the two statutory provisions are different and the language of each statute is restricted to its own object or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on surface.
[611 D G] The provisions of the Adulteration Act and the Fruit Order, for effectuating their respective objects, have imposed, different restrictions in the manufacture and sale of vinegar whether brewed or synthetic.
in the interest of public health the respondent has to comply with the provisions of the Adulteration Act and Rules and in the interests of equitable distribution of essential commodities including the articles of food covered by the Essential Commodities Act and the Fruit Order they have to comply with the provisions of the fruit Order.
Both the provisions are supple 608 mentary and cumulative in their operation and no provision of the Fruit Order is shown to be destructive of or fatal to any provision of the Adulteration Act or the Rules made thereunder so as to compel the court to hold that they cannot stand together.
If the Adulteration Act or Rules impose some restrictions on the manufacturer, dealer and seller of vinegar, then they have to comply with them irrespective of the fact that the Fruit ,Order imposes lesser number of restrictions in respect of these matters.
The former do not render compliance with the latter impossible, nor does compliance with the former necessarily and automatically involve violation ,of the latter.
Even if both 'statutes to some extent overlap, section 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty.
[618 C H] Om Prakash Gupta V., State of U.P.; , , T. section Baliali vs T. section Rengachari, ; , State vs Gurcharan Singh, A.I.R. 1952 Punjab 89, and Paine vs Stater, ,referred to.