judgement:
Civil Appeal No. 2691 of 1979.
Appeal by Special Leave from the Judgment and order dated 7 8 1979 of the Delhi High Court in Civil Revision No. 49/1979.
Yogesh Kumar jain and Mukul Rohtagi for the Appeal.
B. P. Bhandari, R. C. Bhatia and P. C. Kapoor for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against the judgment dated August 7, 1979, of a Single Judge of the High Court of Delhi accepting a petition made by the landlady for revision of the order of an Additional Rent Controller (hereinafter called the Controller) of Delhi refusing to direct eviction of the tenant.
The landlady had sought eviction of the tenant from the premises in dispute on the ground covered by clause (e) of the proviso to sub section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act), namely, that she required them bona fide for occupation as a residence for herself.
Her application being triable in accordance with the procedure laid down in section 25B of the Act, the tenant sought the Controller 's leave to contest it on grounds which were stated in his affidavit.
The leave was granted and thereafter the tenant filed a written statement contesting his eviction which was ultimately disallowed.
The learned Controller held that although the landlady had proved that she required the premises bona fide for her own occupation, she was disentitled to the relief claimed by her for two reasons which were (1) that she had not proved service on the tenant of a notice under section 106 of the Transfer of Property Act, and, (2) that her application claimed eviction only in respect of a part of the premises let out which was not legally permissible.
The landlady went up in revision to the High Court and the learned Single Judge reversed both the findings which had been decided by the Controller against her.
Two other points were raised before the High Court on behalf of the tenant.
It was contended, firstly, that the petition for revision was incompetent in view of the provisions of sub section (8) of section 25B of the Act and that only an appeal as contemplated by section 38 thereof should have been instituted before the Rent Control Tribunal (hereinafter called the Tribunal).
The contention was negatived with the observation that a petition for revision as envisaged by sub section (8) above mentioned lay against an order accepting or rejecting an eviction appli 749 cation, and against such an order alone, as laid down in Devi Singh vs Chaman Lal(1), R. K. Parikh vs Uma Verma(2), Bhagwati Pershad vs Om Perkash(3) and Mahavir Singh vs Kamala Narain(4).
The second contention was that the lease deed on which the landlady relied in support of the alleged tenancy was unstamped and therefore inadmissible in evidence.
This contention was repelled for the reason that although the said deed was taken on the file subject to the objection made on behalf of the tenant, the objection was never pressed at the time of argument before the Controller.
It was also observed by the learned Single Judge that the contention was practically meaningless as the tenant had never denied the tenancy in question.
In the result the learned Single Judge passed the impugned order directing the eviction of the tenant and, as already stated, that is the order impugned before us.
It has been vehemently contended before us on behalf of the tenant appellant that the opinion of the High Court about the maintainability of the petition for revision of the order of the Controller is erroneous and that the only remedy open to the landlady against that order was by way of appeal to the Tribunal under section 38 of the Act.
In order to determine the acceptability of the contention it is necessary to undertake a somewhat detailed examination of some of the provisions of the Act, especially those which were introduced by a 1976 amendment with effect from 1st of December, 1975.
The Act as originally framed provided for the control of rents and of eviction of tenants.
Various safeguards were created by it to ensure security of tenure to tenants residing in the urban area of Delhi and the right of the landlord to evict his tenant was restricted in ambit so as to be available only if the existence of certain specified grounds was proved.
Those grounds are enumerated in clauses (a) to (1) of the proviso to sub section (1) of section 14 of the Act.
The ground contained in clause (e) runs thus: "(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent upon him, if he is the owner thereof, or for any person 750 for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;" The jurisdiction to decide disputes arising under the Act was vested in Controllers and civil courts were divested thereof.
Chapter VI of the Act made provision for appointment of Controllers, their powers and functions and appeals from their orders.
Out of the sections appearing in that Chapter there are three with which we are here concerned.
They are sections 37, 38 and 39.
Section 37 lays down the procedure to be followed by the Controller and subsection (2) thereof states: "Subject to any rules that may be made under this Act, the Controller shall, while holding an inquiry in any proceeding before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence.
" Section 38 lays down that from every order of the Controller made under the Act an appeal shall lie to the Tribunal who shall have all the powers of a court under the Code of Civil Procedure when hearing an appeal.
Section 39 provides for an appeal to the High Court against an appellate order passed by the Tribunal but, makes it clear that such a second appeal shall lie only if it involves some substantial question of law.
On the 9th of September, 1975, the Central Government took a decision that Government employees owning houses within the Union Territory of Delhi shall be required to vacate accommodation allotted to them by the Government within a period of three months beginning with the 1st of October, 1975, and that in case they failed to vacate such accommodation before the 1st of January 1976, they would have to pay therefor licence fee equivalent to rent at the market rate.
In view of that decision it became necessary to make special provision for enabling such Government employees to evict their respective tenants and to shift to their own houses.
It was also felt that procedural delays required to be cut down in the case of disputes between the landlord and the tenant when the landlord bona fide required the demised premises for his own occupation.
The Act was therefore amended by Ordinance No. 24 of 1975 which was eventually replaced by the Delhi Rent Control (Amendment) Act (being Act No. 18 of 1976 and hereinafter referred to as the Amending Act).
The Amending Act introduced in Chapter III of the Act section 14A which provided for a right to a person in occupation of any residential premises allotted to him by the Central Government 751 or any local authority to recover immediate possession of premises let out by him in case he was required by the Government or the authority to vacate the residential premises allotted to him.
The only other change effected by the Amending Act was to add a new chapter, viz, Chapter IIIA, to the Act.
The chapter is headed "Summary Trial Of Certain Applications" and consists of three sections, viz., sections 25A, 25B and 25C, the first two of which may be reproduced in extenso: "25A. The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force." "25B. (1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A, shall be dealt with in accordance with the procedure specified in this section. "(2) The Controller shall issue summons, in relation to every application referred to in sub section (1), in the form specified in the Third Schedule. "(3) (a) the Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain.
(b) When an acknowledgment purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.
752 "(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and affidavit stating the ground on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. "(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A. "(6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable. "(7) Notwithstanding anything contained in sub section (2) of section 37, the Controller shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence. "(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section: Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. "(9) Where no application has been made to the High Court on revision, the Controller may exercise, the powers of review in accordance with the provisions of Order XLVII of the Fist Schedule to the Code of Civil Procedure, 1908.
753 "(10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A, shall be the same as the procedure for the disposal of applications by Controllers.
The non obstante clause occurring in section 25A makes it quite clear that whenever there is a conflict between the provisions of Chapter IIIA on the one hand and those of the rest of the Act or of any other law for the time being in force on the other, the former shall prevail.
Section 25B provides a special procedure for the determination of an application by a landlord claiming recovery of possession from his tenant of the premises let out to the latter on either of two grounds, viz., those specified in clause (e) of the proviso to sub section (1) of section 14 and in section 14A.
Thus if such an application is based on the ground that the landlord requires the demised premises bona fide for his own occupation as a residential accommodation it has to be dealt with in accordance with the procedure specified in section 25B and not under the provisions contained in chapters other than Chapter IIIA, in so far as the latter are inconsistent with the former.
This follows directly from the provisions of section 25A read with those of sub section (1) of Section 25B.
That procedure envisages a short cut to the conclusion of the proceedings before the Controller and for that purpose makes the right of the tenant to contest the application of the landlord subject to the Controller 's leave obtained on grounds specified in an affidavit.
If no such affidavit is filed, the question of leave does not arise nor that of a contest by the tenant.
Furthermore, if the affidavit is filed but leave is refused, a contest by the defendant is again barred.
In either case the proceedings immediately come to a termination by the passage of an order of eviction of the tenant.
In case, however, the required affidavit is filed and leave to contest is granted, the Controller has to embark on the usual inquiry but the same has again to be conducted in conformity with the practice and procedure of a Court of Small Causes, including the recording of evidence.
This is the mandate of sub section (7) of section 25B, which makes a slight departure in the matter of practice and procedure from that to be followed in other applications under the Act as laid down in sub section (2) of section 37.
Sub section (8) of section 25B makes another variation in the procedure and states that when an order for the recovery of possession of any premises has been made by the Controller on an appli 754 cation covered by sub section (1) no appeal or second appeal shall lie therefrom.
In the case of such an order therefore the provisions of sections 38 and 39 are specifically made inapplicable.
The subsection further provides however for the remedy of revision by the High Court of any order made by the Controller under section 25B, a remedy which is not available to a party in a dispute not covered by Chapter IIIA.
Reference may also be made here to sub section (10) of section 25B pointedly.
That sub section makes it clear that even in the case of applications falling under sub section (1) of that section the procedure for their disposal by Controllers shall be the same as in the case of other applications, except as is provided in Chapter IIIA.
The combined effect of section 25A and sub section (1) and (10) of section 25B is that in whatever respect section 25B makes a departure from the procedure prescribed in other chapters of the Act, the provisions of Chapter IIIA shall prevail but that where that Chapter does not provide for a variation, applications covered by subsection (1) of section 25B shall be treated at par with all other applications for the purposes of procedure.
It is in the above background that the question as to whether an appeal to the Tribunal or a revision to the High Court was competent against the order passed in the instant case by the Controller has to be decided, and that brings us directly to the meaning of subsection (8) of section 25B. The proviso to that sub section gives power to the High Court to revise "an order made by the Controller under this section" which expression is no doubt capable of being construed as any order of whatsoever, nature passed by the Controller while acting in accordance with the procedure laid down in section 25B. The proviso, however, has to be read as a legislative measure carved out of the sub section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the sub section speaks of, i.e. "an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section.
" Thus, the order covered by sub section (8) (and therefore, by the proviso also) would be a final order disposing of an application on a conclusion of the proceedings under sub section (4) or sub section (7) of section 25B. This line of reasoning does not present any difficulty.
Learned counsel for the tenant however argued that for an order to be covered by sub section (8) of section 25B it must be an order for the recovery of possession of any premises made by the Controller.
According to him, if an order does not direct recovery 755 of possession by the landlord from the tenant, it is not an order which sub section (8) would embrace.
This contention, though not wholly implausible, runs counter to the decision in Devi Singh vs Chaman Lal (supra) which was followed in Bhagwati Prasad vs Om Prakash (supra) and Mahavir Singh vs Kamal Narain (supra) and does not find favour with us.
Sub section(8) no doubt in terms speaks only of an order "for the recovery of possession of any premises" and does not mention one which refuses the relief of eviction to the landlord; but then it appears to us that the expression "order for the recovery of possession of any premises" has to be construed, in the context in which it appears, as an order deciding application for the recovery of the possession of any premises.
Our reasons in this behalf are two fold.
Firstly, if an order in favour of the landlord alone was meant to be covered by sub section (8), an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under section 38 so that there would be two procedures for the end product of the Controller 's proceedings being called in question; one when the same is in favour of the landlord, and another when it goes against him, which would obviously entail discrimination and make the sub section suffer from a constitutional invalidity.
It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it should if possible be so construed rather than the other way round.
We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above stated.
Secondly, the scheme of the Act and the object of the introduction of section 14A and Chapter IIIA into it by the Amending Act make us form the opinion that sub section (8) of section 25B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter.
Before the enforcement of the Amending Act, all disputes between a landlord and his tenant were liable to be dealt with according to a uniform procedure before the Controller as also in appeal and second appeal.
No distinction was made between one kind of dispute and another.
When it was felt that the procedure prescribed in the Act defeated, by reason of the delay involved, the very purpose of an application made under clause (e) of the proviso to sub section (1) of section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority which they were required to vacate, section 14A and Chapter IIIA were introduced by the Amending Act so as to cut down the time factor drastically, so much 756 so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defence, and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord 's claim were not such as would disentitle the landlord from obtaining an order of eviction.
Sub section (7) further simplified the procedure on contest being allowed, even though sub section (2) of section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil court.
Then there is sub section (8) which provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed by the Controller.
That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in sections 38 and 39, and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided.
In the way of the above interpretation of sub section (8) of section 25B, the provisions of sub section (10) thereof do not pose a hurdle.
All that sub section (10) states is that the procedure for the disposal of an application for eviction covered by sub section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter IIIA.
Sub section (8) as interpreted by us governs an application covered by sub section (1) of section 25B and expressly takes away the right of appeal or second appeal, while providing the remedy of revision instead.
As we have held the provisions of sub section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter IIIA.
such applications fall outside the category of those which can be disposed of like other applications under sub section (10) read with the provisions contained in other chapters of the Act.
As a result of the above discussion we hold that the remedy of the landlady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court as laid down in the proviso to sub section (8) of section 25B, even though it was an order not directing, but refusing recovery of possession of the premises in dispute.
Another contention raised on behalf of the tenant was that the order passed by the High Court while revising that of the Controller was illegal inasmuch as it did not specifically contain a direc 757 tion that the landlady would not be entitled to obtain possession of the premises in dispute before the expiration of a period of six months from the date of the order.
The contention seeks support from the provisions of sub section (7) of section 14 of the Act which states: : "Where an order for the recovery of possession of any premises is made on the ground specified in clause (e) of the proviso to sub section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.
" Now this sub section does not at all require that an order for the recovery of possession of any premises should contain a direction of the type above mentioned.
On the other hand, the sub section itself declares that such an order would not be executable before a certain period has expired.
The declaration is part of the law of the land and would be operative as such so that the landlady would not be entitled to execute the order made by the High Court in her favour before the expiry of six months from the date thereof notwithstanding the fact that the terms of sub section (7) have not been made a part of that order.
The only other ground urged in support of the appeal was that the landlady had prayed for the tenant 's eviction from only a part of the premises and that such eviction could not legally be granted to her.
The contention embraces a question of fact which has been decided against the tenant by the High Court and for reconsidering which we do not find any reason.
In the result the appeal fails and is dismissed but with no order as to costs.
P.B.R. Appeal dismissed.

summary/full:
Clause (e) of the proviso to section 14(1) of the Delhi Rent Control Act provides that a landlord can evict a tenant of premises let for residential purposes on the ground that the same were required by him bona fide for occupation as a residence for himself and that he has no other reasonably suitable residential accommodation.
An appeal from the order of the Controller lies to the tribunal and a further appeal to the High Court.
In September, 1975, the Government of India took a decision that Government employees owning houses in Delhi shall be required to vacate accommodation allotted to them by the Government within a period of three months from 1st October, 1975.
To avoid procedural delays in the matter of eviction of tenants from houses let out by Government servants who were required to shift to their own houses, Chapter III A was introduced by an Amending Act.
Section 14A which was added in Chapter III provided a right to a person in occupation of any residential premises allotted to him by the Central Government to recover immediate possession of the premises let out by him in case he was required by the Government to vacate the residential premises allotted to him.
The non obstante clause contained in section 25A provides that "the provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or any other law for the time being in force.
" Section 25B(8) provides that when "an order for the recovery of possession of any premises" has been made by the Controller on an application covered by section 25B no appeal or second appeal shall lie therefrom.
The respondent 's application under clause (e) of the proviso to section 14(1) of the Act was rejected by the Rent Controller on the ground that it was not legally permissible for her to obtain possession of the premises under the section because she had sought eviction only in respect of a part of the premises.
In the respondent 's revision petition before the High Court the tenant contended that the petition was incompetent because in view of the provisions of section 25b(8) the only remedy available to the respondent was by way of appeal under section 38.
Rejecting this contention the High Court held that a, petition for revision as envisaged by section 25B(8) lay against the order accepting or rejecting an eviction application and against such an order alone.
Dismissing the tenant 's appeal.
^ HELD: The remedy of the land lady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court under the proviso to section 25B(8), even though it was 747 an order not directing but by refusing recovery of possession of the premises in dispute.
[756 G H] The non obstante clause in section 25A provides that whenever there is a conflict between the provisions of Chapter IIIA and those of the rest of the Act or of any other law in force the former shall prevail.
If an application is made under clause (e) of the proviso to section 14(1) it has to be dealt with in accordance with the procedure specified in section 25B and not under the provisions contained in Chapters other than Chapter IIIA.
Therefore, the procedure laid down in section 25A read with section 25B(1) envisages a shortcut to the conclusion of the proceedings before the Controller.
Section 25B(8) further provides that when an order for the recovery of possession of any premises has been made no appeal under section 38 or second appeal under section 39 shall lie.
The combined effect of section 25A and section 25B(1) and (10) is that in whatever respect section 25B makes a departure from the procedure prescribed in other chapters of the Act, the provisions of Chapter IIIA shall prevail.
[753 B D; 754 D] The expression "order for the recovery of possession of any premises" has to be construed, in the context in which it appears, as an order deciding an application for the recovery of possession of any premises; because, firstly, if an order in favour of the landlord alone was meant to be covered by sub section (8) an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under section 38 so that there would be two procedures for the end product of the Controller 's proceedings being called in question, one when the same is in favour of the landlord and another when it goes against him, which would obviously entail discrimination and make the sub section invalid.
But if a provision can be construed in a manner which upholds its legal or constitutional validity it should, if possible, be so construed rather than the other way round.
[755 B E] All that sub section (10) of section 25B states is that the procedure for the disposal of an application for eviction covered by sub section (1) shall be the same as the procedure for disposal of other applications by Controllers except as provided in Chapter IIIA.
Sub section (8) expressly takes away the right of appeal or second appeal while providing the remedy of revision instead.
[747 E F] Section 14(7) does not require that an order for the recovery of possession of any premises should contain a direction that the landlord would not be entitled to obtain possession of the premises in dispute before the expiry of a period of six months from the date of the order.
The sub section itself declares that such an order would not be executable before a certain period has expired.
The declaration is part of the law of the land and would be operative as such so that the landlady would not be entitled to execute the order before the expiry of six months from the date thereof notwithstanding the fact that the terms of sub section (7) have not been made part of the order.
[757 C D] Devi Singh vs Chaman Lal (1977) Rajdhani Law Reporter 566; R. K. Parikh vs Uma Verma I.L.R. (1978) II Delhi 78; Bhagwati Pershad vs Om Perkhash (1979) Rajdhani Law Reporter 26; Mahavir Singh vs Kamal Narain (1979) Rajdhani Law Reporter 159 approved.


judgement:
rit Petition No. 1220 of 1979.
(Under Article 32 of the Constitution) P. Govindan Nair and N. Sudhakaran for the Petitioner. M. M. Khader and V. J. Francis for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The petitioner, an aspirant for admission to the M.B.B.S. course in one or other of the medical college in Kerala, has failed to qualify for selection from the Kerala university pool, not having secured high enough marks, and has failed to fall within the Calicut University pool, not having been a student of that University.
What is urged, as a claim for inclusion, is that had she been treated as a Calicut University student her marks would have been sufficient to gain admission and since she belongs to the Malabar region, which 830 is broadly served by the Calicut University, she should be given the benefit of Calicut University students and consequential admission a mixture of district wise backwardness and university wise preference to reach the desired advantage.
We cannot agree.
Under the existing scheme, the classification for purpose of quota is university wise, not territory wise.
Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University.
Maybe, the State could have classified candidates university wise, backward region wise or otherwise, separately or in any constitutionally permissible combination.
We are not here concerned with the prospects of the petitioner under any different admission scheme or reservation project.
Mystic maybes are beyond judicial conjecture.
Once we hold that the university wise allocation of seats is valid the misfortune of the petitioner is damnum sine injuria, if we may use that expression in this context.
Every adversity is not an injury.
Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its bounds.
We do not preclude the State from taking any other pragmatic formula or evolving any selection calculus, constitutionally permissible, so as to promote equality against the backdrop of social justice.
Indeed, we have by our Judgment in Dr. Jagadish Saran & Ors.
vs Union of India & Ors.(1), explained the parameters, the criteria and the correct measures which must be initiated to marry equality to excellence, solemnised constitutionally.
Too long has the state been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum.
To keep the education situation uncertain across the nation and the fate of students of higher education tense or in suspense with annual challenge in court or agitational exercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality.
We dismiss this petition subject to the observations we have made above, leaving it to the Kerala State and its Universities not to contribute to the litigative nursery of medical candidates but to face the task of shaping a firm policy governed by constitutional guidelines, not other pressures.
S.R. Petition dismissed.

dataset_name: IN-Abs

summary/full:
Dismissing the Writ Petition, the Court ^ HELD: The University wise allocation of seats is valid.
Under the existing scheme, the classification for purposes of quota is university wise, not territory wise.
Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University.
May be, the State could have classified candidates University wise, backward region wise or otherwise, separately or in any constitutionally permissible combination.
Mystic maybes are beyond judicial conjecture.
The misfortune of the petitioner is damnum sine injuria.
Every adversity is not an injury.
Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its bounds.
[830 A D] Dr. Jagdish Saran & Ors.
vs Union of India & Ors.
; relied on Observation: [Too long has the State been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum.
To keep the education situation uncertain across the national and the fate of students of higher education tense or in suspense with annual challenges in court or agitational exercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality.] [830 E G]


judgement:
N: Criminal Appeal Nos.
66 67 of 1980.
Appeals by Special Leave from the Judgment and order dated 30/8/1979 of the Delhi High Court in Criminal Revision Nos.
65 66 of 1979.
N. section Das Bahl for the Appellant.
M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The common appellant in both these appeals is a teen aged student turned criminal adventurer in the elitist area of car lifting and scooter poaching current in our fashionable cities, including Delhi.
While he was a college student and but 19 years old, the appellant tried his hand at stealing a scooter way back in 1971.
He was arrested but bailed out and while on bail was accused of committing a car theft.
Both these cases were tried and he was found guilty.
The 864 scooter offence resulted in a sentence of two years ' imprisonment and a fine of Rs. 2,000.
The car theft case got converted into an offence under Section 411 I.P.C. and, consequently, a reduced sentence of imprisonment for six months and a fine of Rs. 500.
The convictions being concurrent and no substantial infirmity being present, we have confined leave to appeal to the question of sentence only.
But sentencing the cutting edge of the judicial process is the crucial strategy of the criminal law in achieving social defence and delinquent rehabilitation.
So we have to consider the totality of factors bearing on the offence and the offender and fix a punishment which will promote effectively the punitive objective of the law deterrence and habilitation.
We do not deem it necessary to set out elaborately all the socio legal facts which have been discussed at the bar.
All that we need say is that the offence took place in 1971 and we are now in 1980.
A long protracted litigation is some deterrent for a young man in his twenties.
The accused was nineteen when the offences were committed and his youthful age is a factor which deserves consideration.
A long period of incarceration in the present condition of prisons may brutalise the boy and blunt his finer sensibilities so that the end product may perhaps be more criminal than the one at the point of entry.
Not that all prison terms are not deterrent but some cases prove to be counter productive especially when the delinquent is young.
It may be interesting to recall Lord Soper 's observations in the House of Lords in a debate on British Prisons, where he said: "Now as to reform.
I was a prison chaplain for 30 years.
I cannot remember a single man who was reformed by being in prison not one.
I can remember those who, serving very short sentences, were for a time, perhaps, brought to recognise something of the gravity of what they had been doing; but I am completely convinced that the longer a man stays in prison, the longer he stays in that kind of incarceration, the less is the prospect of reform and the more certain is the process of decay.
That is why I have consistently tried to say that any man who is imprisoned in one particular set of circumstances for more than five years is probably dead for life.
It is highly unlikely that those who have endured that kind of monotonous deadening will be able to recover in the real world what they have lost in the artificial element and environment of prison life.
There has been, I think, in my time, a considerable increase 865 in the amelioration of conditions in prison; but, to refer again for a moment to the artificiality of it, the longer a man stays in prison the less capable he will be of recovering his place and establishing his position back in the real world to which he is increasingly made alien by the very processes which he undergoes." Moreover, the appellant has already suffered nearly six months ' imprisonment and it is a well known fact for criminologists that the initial few months of jail life are the most painful and, therefore, the most deterrent.
In the present case the offender having served a term of nearly six months must well have realised that the game of crime does not pay.
The fines of Rs. 2,000 and Rs. 500 imposed on the appellant should remain without interference.
Payment of fine brings home the sense for responsibility in a surer fashion than even short terms of imprisonment in some cases.
We, therefore, decline to reduce the fine and reject counsel 's plea in this behalf.
More important than these circumstances is the social urgency of making this student offender a non offender.
There are two circumstances which weigh in our mind.
The young man has married and has three children.
This is a measure of assurance that he will not play recklessly with his freedom.
Family life is ordinarily an insurance against a career of crime.
We have also insisted on the uncle of the appellant undertaking to assure the good behaviour of the nephew who is the delinquent in question.
The uncle Shri Kohli has filed an affidavit dated 10 12 1979 in this Court making the necessary undertaking to guarantee the good behaviour of his nephew.
Thoughtless parents and guardians leaving a free hand for their wards account for flippant criminality of the type we come across in middle class society.
The undertaking given by the uncle has, therefore, considerable relevance.
We make a breach of the conditions in the affidavit actionable on the motion of the State.
It is a tragic reflection that affluent criminality should become so pervasive among the student community.
It is uncomplimentary to the character building component of the system of education in the prestigious institutions of our cities.
We hope the State will take better care to instil a sense of values in the college campuses than it does now.
We allow the appeals to the extent of reducing the sentence of the appellant to the period undergone, but maintain the sentences of fine and the alternative period of imprisonment in case of default.
P.B.R. Appeals allowed.

summary/full:
The appellant was convicted and sentenced to two years ' imprisonment and fine of Rs. 2,000 and imprisonment for six months and fine of Rs. 500 for car lifting and scooter poaching.
On the question of sentence.
Allowing the appeals, ^ HELD : (a) The sentence of imprisonment is reduced to the extent of the period already undergone; but the sentences of fine and the alternative period of imprisonment in case of default are maintained.
[865 H] (b) The long protracted litigation from 1971 onwards is some deterrent for a young man in his 20s.
The youthful age of the offender is a factor which deserve consideration.
A long period of incarceration may brutalise a boy and blunt his finer sensibilities so that the incarceration may perhaps be more criminal than the one at the point of entry.
The offender having served a term of nearly six months must have realised that the game of crime does not pay.
[864 D, 865 C] (c) Payment of fine brings home the sense of responsibility in a surer fashion than even short terms of imprisonment in some cases.
[865 C]


judgement:
ION: Criminal Appeal No. 49 of 1955.
Appeal by special leave from the order dated the 9th July, 1954 of the Punjab High Court at Simla in Criminal Revision No. 778 of 1954 arising out of the judgment and order dated the 30th June 1954 of the Court of Additional Sessions Judge, ' Amritsar in Criminal Appeal No. 409 of 1954.
477 Ram Das and Raghu Nath Pandit, for the appellants.
Jindralal and P. G. Gokhale, for the respondent.
April 26.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with special leave involves the interpretation of section 9 of the Punjab Security of the State Act, 1953 (Punjab Act XII of 1953), hereinafter called "the Act".
The appellants were members of the Amritsar District Motor Union which took out a procession on 23rd March, 1954 to protest against the policy of the Punjab Government to nationalise motor transport.
The procession started from Gul Park and was taken on lorries and jeeps.
It stopped near Chitra Talkies and then started on foot.
When it reached near Prabhat Studio, the appellants raised slogans "Jaggu mama hai hai (Jaggu, maternal uncle be dead)" and "Khachar Khota hai hai (mule cum donkey be dead)".
The first slogan was alleged to have been directed against the Hon 'ble Shri Jagat Narain, Transport Minister, Punjab State and the second slogan against the Hon 'ble Shri Bhim Sen Sachar, Chief Minister, Punjab State.
The uttering of these slogans was considered objectionable and the appellants were charged in the Court of the Magistrate, First Class, Amritsar: "that you, on or about the 23rd day of March 1954 at Amritsar, while being members of a procession, raised slogans "Jaggu mama hai hai" "Khachar Khota hai hai" which besides being indecent amounted to defamation and was pre judicial to the security of the State and the maintenance of public order and thereby committed an offence punishable under section 9 of the Security of the State Act".
The appellants pleaded not guilty and claimed to be tried.
They also led evidence in defence.
The learned Magistrate, however, disbelieved the defence and, accepting the prosecution evidence, found that the appellants did raise these slogans.
In the opinion 478 of the learned Magistrate, the slogans were in fact abuses hurled at the Transport Minister and the Chief Minister of the Punjab Government which besides being indecent amounted to defamation and were prejudicial to the maintenance of public order.
The appeal taken by the appellants before the Court of Additional Sessions Judge, Amritsar, was unsuccessful.
The learned Additional Sessions Judge also found against the appellants and observed that the slogans were highly objectionable and they fell within the ambit of section 9 of the said Act, that by raising those slogans the appellants undermined the public order as well as decency and they also amounted to defamation.
He, therefore, maintained the conviction of the appellants and the sentences of 3 months ' rigorous imprisonment which had been imposed by the learned Magistrate upon them.
The appellants filed a Revision Application before the High Court of Judicature for the State of Punjab at Simla but the same was summarily dismissed by the learned Chief Justice.
The appellants thereafter applied for and obtained from this Court Special Leave to appeal and the appeal has accordingly come on for hearing and final disposal before us.
On the evidence on record, there is no doubt that the appellants were members of the procession and did utter those slogans against the Transport Minister and the Chief Minister of the Punjab Government,.
The question, however, remains whether, in uttering these slogans, they committed an offence under section 9 of the Act.
Section 9 of the Act reads as follows "9.
Whoever (a) makes any speech, or (b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or morality, or amounts to contempt of Court, defama 479 tion or incitement to an offence prejudicial to the security of the State or the maintenance of public order, or tends to overthrow the State, be punishable with imprisonment which may extend to three years or with fine or with both".
It cannot be denied that the appellants by words spoken published statements in relation to the Transport Minister and the Chief Minister of the Punjab Government.
A futile argument was advanced before us by the advocate of the appellants that this condition was not satisfied but we need not pause to consider the same.
The sole question for our determination is whether such statements (1) undermined the security of the State, friendly relations with foreign States, public order, decency or morality or (2) amounted to contempt of Court, defamation or incitement to an offence prejudicial to the security of the State or maintenance of public order, or (3) tended to overthrow the State.
The appellants were no doubt affected by the policy of the Punjab Government to nationalise motor transport and the Transport Minister and the Chief Minister were really responsible for sponsoring that policy.
Their tirade, therefore, was against both these individuals and, in the demonstration which the appellants held against that policy, they gave vent to violent expressions of opinion against them and, in the slogans which they uttered, used expres sions which were certainly objectionable.
The slogan "Jaggu mama hai hai" could be translated as "Jaggu, whose sister is my father 's wife is dead, woe betide him" and was in that sense a vulgar abuse burled against the Transport Minister.
The slogan "Khachar khota hai hai" could be translated as "mulecum donkey is dead, woe betide him" and it was directed against the Hon 'ble Shri Bhim Sen Sachar, Chief Minister, Punjab Government, whose name Sachar was caricatured into khachar being mule and was also combined with khota, a donkey.
This was again a vulgar abuse burled against the Chief Minister, Punjab Government.
The appellants ' conduct in this behalf could not at 480 all be justified.
Whatever their grievances against the Transport Minister and the Chief Minister of the Punjab Government were, they were entitled to ventilate them in a decent and dignified manner and they were certainly not justified in hurling such vulgar abuses against these individuals howsoever prejudicial to the interest of the appellants the policy of nationalised motor transport sponsored by them might have been.
No decent citizen should have uttered such slogans and the State authorities were well within their rights in proceeding against the appellants.
The difficulty, however, in the way of the State authorities is that they misconceived their remedy.
Howsoever provocative and indecent or unbefitting a responsible citizen of the State the conduct of the appellants was, the charge which was levelled against the appellants was one under section 9 of the Act and before the prosecution could succeed they bad not only to prove that what the appellants did was against decency and was defamatory of these indi viduals but also was such that it undermined public order, decency or morality or was tantamount to an incitement to an offence prejudicial to the maintenance of public order.
The learned counsel for the State very rightly conceded that the statements could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court or defamation prejudicial to the security of the State nor did they tend to overthrow the State.
Howsoever reprehensible these slogans were, they certainly would not have that effect.
The only way in which he sought to bring these slogans uttered by the appellants within the mischief of section 9 of the Act was by urging before us that the statements undermined public order, decency or morality and that they were tantamount to an incitement to an offence prejudicial to the maintenance of public order.
In support of this contention be referred us to the evidence of Ram Rakha, P.W. 2, Sub Inspector, C.I.D., who had accompanied the procession: "There was a sufficient, number of public men 481 there and they felt annoyed over these slogans.
The police had sufficient arrangements and had there been no arrangement there might have been a dispute".
There was also the evidence of Gurdit Singh, P. W. 3: "There were many other persons of the public with the procession.
People took these slogans ill" and Sunder Singh, P.W. 4: "There were many other persons of the public.
The slogans had a bad effect on the public".
It is significant to observe that, in the initial report made by the Sub Inspector Ram Rakha as also the Diary Report prepared by him, no mention had been made by him of the members of the public having felt annoyed over these slogans.
The two other witnesses Gurdit Singh, P.W. 3 and Sunder Singh, P.W. 4, were shown in their cross examination to have been the associates of the police in the investiga tions which they used to carry on and were not at all worthy of credence.
These statements, therefore, in regard to the members of the public having felt annoyed over these slogans uttered by the appellants, were liable to be discredited.
Even assuming that some members of the public who had congregated near the Prabhat Studio felt annoyed at these slogans and took them ill it is a far cry from that annoyance to undermining of the public order, decency or morality or incitement to an offence prejudicial to the maintenance of public order.
The only offence prejudicial to the maintenance of public order which could be thought of in this context was that of rioting and there is not the slightest evidence on record to justify an inference that the effect of the utterance of these slogans by the appellants against the Transport Minister and the Chief Minister would, but for the police arrangements, have led to the undermining of the public order or would have led to rioting which would be certainly prejudicial to the mainten ance of public order.
Indecent and vulgar though these slogans were as directed against the Transport Minister and the Chief Minister of the Punjab Government, the utterance thereof by the appellants who were the members of the procession protesting against 482 the scheme of nationalised motor transport was hardly calculated to undermine decency or morality the strata of society from which the appellants came being habituated to indulge freely in such vulgar abuses without any the slightest effect on the persons hearing the same.
These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to section 9 of the Act unless and until the defamation of these individuals was prejudicial to the security of the State or the mainten ance of public order.
So far as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice.
Their conduct in this behalf was consistent with the best traditions of democracy.
"Those who fill a public position must not be too thin skinned in reference to comments made upon them.
It would often happen that observations would be made upon public 'men which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with them and submit to be misunderstood for a time" (Per Cockburn, C.J. in Seymour vs Butterworth(1) and gee the dicta of the Judges in R. vs Sir R. Carden(2).
"Whoever fills a public position renders himself open thereto.
He must accept an attack as a necessary, though unpleasant, appendage to his office" (Per Bramwell, B., in Kelley vs Sherlock(3)).
Public men in such positions may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give importance to the same by prosecuting the persons responsible for the same.
While commending thus the conduct of the Transport Minister and the Chief Minister of the Punjab Government, we cannot help observing that the step (1) [ ; , 376, 377; ; , 168, 169.
(2) (3) , 689.
483 which the State authorities took against the appellants in prosecuting them under section 9 of the Act was unjustified as the slogans uttered by the appellants did not under the circumstances set out Above fall within the mischief of that section.
Deprecating as we do the conduct of the appellants in uttering these slogans, we cannot help feeling that the prosecution has failed to establish that the appellants were guilty of the offence with which they had been charged with the result that the appeal of the appellants will be allowed, their convictions and sentences passed upon them will be set aside and they will be set at liberty forthwith.
We only hope that the observations made by us here will be an eyeopener to the appellants and they will behave them selves better in the future.

summary/full:
The appellants were members of a procession taken out to protest against the policy of the Punjab Government to nationalise motor transport and raised the slogans "Jaggu mama hai hai (Jaggu, maternal uncle be dead)" and "Khachar Khota hai hai (mule cumdonkey be dead)".
The words were directed against the Transport Minister and the Chief Minister respectively and were defamatory.
The appellants were prosecuted and convicted under section 9 of the Punjab Security of the State Act, 1953.
Held that the statements could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court or defamation prejudicial to the security of the State nor did they tend to overthrow the State and that the prosecution had failed to establish that the act of the appellants undermined public order, decency or morality or was tant amount to an incitement to an offence prejudicial to the maintenance of public order and consequently the prosecution under section 9 was not justified.
Public men may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them, rather than give importance to the same by prosecuting the person responsible for the same.
Seymour vs Butterworth ([1862] ; , 376, 377), B. vs Sir B. Carden ([1879] , Kelly vs Sherlock ([1866] L.R. 1 Q.B. 686, 689; referred to.


judgement:
ON: Writ Petition (Criminal) No. 1376 of 1979.
(Under Article 32 of the Constitution).
A. K. Sen and Harjinder Singh for the Petitioner.
U. R. Lalit and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This Writ Petition has been filed with a prayer that an order of detention passed against the petitioner on the 7th 870 September, 1979, under section 3(1) of the be quashed.
After the order was served on the detenu he made a representation on the 27th September, 1979 to the Govt.
who received it on the 28th September, 1979.
In support of the Rule Mr. A. K. Sen has raised a number of points, but in view of one of them which is to the effect that there has been an inordinate and unexplained delay on the part of the detaining authority in deciding the representation and that the detention is therefore vitiated, we need not go into the other points.
On the question of delay the petitioner had expressly taken a plea in para 11 of the petition but in their reply the respondents have not at all explained or detailed any reason why there was inordinate delay in disposing of the representation submitted by the detenu to the detaining authority.
The admitted position is that the representation was received by the Government on the 28th September, 1979 and it was rejected on 3rd November, 1979, that is to say, after about one month and five days of the receipt.
It is now well settled that any unexplained delay in deciding the representation filed by the detenu amounts to a clear violation of article 22(5) of the Constitution of India and is sufficient to vitiate the detention.
Our attention was drawn by the counsel for the petitioner to a recent decision of this Court in Narendra Purushotam Umrao etc.
vs B. B. Gujral & Ors.
where this Court while relying on an earlier decision of this Court in Pankaj Kumar Chakraborty & Ors.
vs State of West Bengal pointed out that under Clauses 4 and 5 of article 22 of the Constitution the detenu has a dual right, viz., 1. to have the representation, irrespective of the length of detention, considered by the appropriate Government, and 2.
to have the representation considered by the Board duly constituted under the concerned Act.
We might further mention that the constitutional right to file a representation to the Government carries with it impliedly a right that the representation must be disposed of as quickly as possible and any unexplained delay would amount to a violation of the constitutional guarantee contained in article 22 (5).
This Court has also pointed out that the obligation of the appropriate detaining authority to take a decision on the representation filed by the detenu is quite apart 871 and distinct from its obligation to constitute a Board and to send the representation to it.
The detaining authority is not entitled to wait for the opinion of the Board but has to take its decision without the least possible delay.
In Writ Petition No. 246 of 1969 decided on September 10, 1969 this Court observed as follows: "It is implicit in the language of article 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
It has to consider the representation on its own without being influenced by any such view of the Board.
There was, therefore, no reason for the Government to wait for considering the petitioner 's representation until it had received the report of the Advisory Board.
As laid down in Sk.
Abdul Karim & Ors.
vs State of West Bengal, (supra) the obligation of the appropriate Government under article 22(5) is to consider the representation made by the detenu as expeditiously as possible.
The consideration by the Government of such representation has to be, as aforesaid independent of any opinion which may be expressed by the Advisory Board.
The fact that article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.
" The observations extracted above clearly show that the representation must be considered by the Government as expeditiously as possible.
Mr. Lalit submitted that the delay in deciding the representation was due to the fact that the representation had to pass through various channels and departments before the Government was in a position to decide it.
In the first place no such facts have been pleaded in the reply filed by the respondents and, therefore, we cannot entertain the grounds now urged by the counsel for the Union for the first time in the arguments before us.
Even so it appears that at the most the detaining authority had forwarded the representation to the Revenue Intelligence whose comments were received on 16 10 79.
Thereafter there was absolutely no justification for any delay in taking a decision on the merit of the representation.
Even if we assume that there was some reasonable explanation for the delay from 28th September, 1979 to 16th Octo 872 ber, 1979, there appears to be no good explanation whatsoever for the delay from 16th October, 1979 to 2nd November, 1979 when the representation was rejected by the Government.
It is manifest that the Government was not obliged to wait for the decision of the Board because it had to consider the representation independently of what the Board might say.
In this view of the matter, we are satisfied that there has been unreasonable delay in deciding the representation filed by the detenu and that by itself is sufficient to render the detention void.
For these reasons we allow this petition, set aside the order of detention and direct that the detenu be released forthwith.
V.D.K. Petition allowed.

summary/full:
Allowing the Writ Petition, the Court ^ HELD: Under clauses 4 and 5 of Article 22 of the Constitution the detenu has a dual right viz. (i) to have the representation, irrespective of the length of detention, considered by the appropriate Government; and (ii) to have the representation considered by the Board duly constituted under the concerned Act.
[870 E F] Further, the constitutional right to file a representation to the Government carries with it impliedly a right that the representation must be disposed of as quickly as possible and any unexplained delay would amount to a violation of constitutional guarantee contained in Article 22(5).
[870 F G] The obligation of the appropriate detaining authority to take a decision on the representation filed by the detenu is quite apart and distinct from its obligation to constitute a Board and to send the representation to it.
The detaining authority is not entitled to wait for the opinion of the Board but has to take its decision without the least possible delay.
[870 G H, 871 A] Pankaj Kumar Chakraborty & Ors.
vs State of West Bengal ; and Narendra Purushotam Umrao etc.
vs B. B. Gujral and Ors., ; relied on.


judgement:
Special Leave Petition (Civil) Nos.
6698 6700 of 1979.
867 From the Judgment and Order dated 25 10 1978 of the Rajasthan High Court in D. B. Civil Misc.
Appeal Nos. 195, 196 and 197 of 1978.
Soli J. Sorabjee Soli.
and Sobhagmal Jain for the Petitioner.
M. N. Shroff for the Respondent.
The Order of the Court was delivered by KRISHNA IYER, J.
These three petitions for special leave relate to a road tragedy where many lost their limbs while travelling in a bus belonging to the nationalised transport system of Rajasthan.
A flimsy plea was put forward by the operator to escape liability for compensation that the lights of the bus accidentally failed and thus the unfortunate episode occurred.
Other embellishments were also set up for the purpose of exoneration.
The Accidents Tribunal was not taken in and, having disbelieved the evidence, awarded compensation in sums far lower than were claimed by the victims.
Two contentions were raised and rightly over ruled and they have been repeated in the Petition for special leave and we similarly reject them.
The nature of the accident and the surrounding circumstances are such that the doctrine res ipsa loquitur was rightly invoked by the court.
Indeed, the terrible accidents attributable to reckless driving and escalating year after year make our high ways great hazards.
One should have thought that nationalisation of road transport would have produced a better sense of social responsibility on the part of the management and the drivers.
In fact, one of the major purposes of socialisation of transport is to inject a sense of safety, accountability and operational responsibility which may be absent in the case of private undertakings, whose motivation is profit making regardless of risk to life; but common experience on Indian high ways discloses callousness and blunted consciousness on the part of public corporations which acquire a monopoly under the in plying buses.
It is a thousand pities that our State Road Transport vehicles should become mobile menaces, and we should impress upon them the need to have greater reverence for human life representing, as they do, the value set of the State itself.
In the present case, the State Corporation put forward a false plea and contested the application of the principle of res ipsa loquitur to avoid liability.
It would have been more humane and just if, instead of indulging in wasteful litigation, the Corporation had hastened compassionately to settle the claims so that goodwill and public credibility could be improved.
After all, the State has a paramount duty, apart 868 from liability for tort, to make effective provision for disablement in cases of undeserved want Aritcle 41 of the Constitution states so.
It was improper of the Corporation to have tenaciously resisted the claim.
It was right on the part of the Tribunal to have raised a rebuttable presumption on the strength of the doctrine of res ipsa loquitur.
The State Corporation has contested even the quantum of the claim.
Indian life and limb cannot be treated as cheap, at least by State instrumentalities.
The heads of claim have been correctly appreciated by the Tribunal and the awards have been moderate.
Here again, the State Corporation should have sympathised with the victims of the tragic accident and generously adjusted the claims within a short period.
What is needed is not callous litigation but greater attention to the efficiency of service, including insistence on competent, cautious and responsible driving.
We have had the advantage of Shri Soli J. Sorabjee, who represented the Corporation with a characteristic sense of fairness, but we are unable to desist from making the above observations which are induced by the hope that nationalised transport service will eventually establish their superiority over the private system and sensitively respond to the comforts of and avoid injury to the travelling public and the pedestrian users of our highways.
We dismiss the Special Leave Petitions.
N.V.K. Petitions dismissed.

summary/full:
The respondents lost their limbs in a road accident while travelling in a bus belonging to the petitioner, a nationalised transport system.
The plea by the operator to escape the liability for compensation was that the lights of the bus accidentally failed, which resulted in the accident.
The Accidents Claims Tribunal negatived the plea and awarded compensation in sums far lower than were claimed by the respondents.
In the special leave petitions to this Court, the petitioner contested the application of the principle of res ipsa loquitur and the quantum of the claim.
Dismissing the petitions, ^ HELD: 1.
(i) It was improper of the Corporation to have tenaciously resisted the claim.
[868 A] (ii) It was right on the part of the Tribunal to have raised a rebuttable presumption on the strength of the doctrine of res ipsa loquitur.
[868 B] 2.
The heads of claim have been correctly appreciated by the Tribunal and the awards have been moderate.
[868 C] 3.
Instead of indulging in wasteful litigation, it would have been more humane and just, if the Corporation had hastened compassionately to settle the claims so that goodwill and public credibility could be improved.
[867 H] 4.
The State has a paramount duty, apart from liability for tort, to make effective provision for disablement in cases of undeserved want Article 41 of the Constitution states so.
[868 A] 5.
Nationalisation of road transport should have produced a better sense of social responsibility on the part of the management and drivers.
One of the major purposes of socialisation of transport is to inject a sense of safety, accountability and operational responsibility which may be absent in the case of private undertakings whose motivation is profit making regardless of risk to life.
[867 E F] 6.
Common experience on Indian high ways disclose callousness and blunted consciousness on the part of public corporations which acquire a monopoly under the in plying buses.
It is a pity that State Road Transport vehicles should become mobile menaces.
[867 G]


judgement:
Civil Appeal No. 1991 of 1979.
Appeal by special leave from the Judgment and Order dated 9 7 1979 of the Kerala High Court in C.R.P. No. 1741 of 1979.
M. M. Abdul Khader and K. M. K. Nair for the Appellants.
K. M. Iyer and V.J. Francis for the Respondent.
J. This litigation has secured special leave from us because it involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicised pre occupation has forsaken the civil debtor whose personal liberty is imperilled by the judicial process itself, thanks to section 51 (Proviso) and O. 21, r. 37, Civil Procedure Code.
Here is an appeal by judgement debtors the appellants whose personal freedom is in peril because a court warrant for arrest and detention in the civil prison is chasing them for non payment of an amount due to a bank the respondent, which has ripened into a decree and has not yet been discharged.
Is such deprivation of liberty illegal? From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning 915 a debtor in the teeth of article 11 of the International Covenant on Civil and Political Rights.
The Article reads: No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
(Emphasis added) An apercu of article 21 of the Constitution suggests the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability in the face of the constitutional protection of life and liberty as expanded by a chain of ruling of this Court beginning with Maneka Gandhi 's case.
Article 21 reads: 21.
Protection of life and personal liberty.
No person shall be deprived of his life or personal liberty except according to procedure established by law.
A third, though humdrum, question is as to whether, in this case, section 51 has been complied with in its enlightened signification.
This turns on the humane meaning of the provision.
Some minimal facts may bear a brief narration sufficient to bring the two problems we have indicated, although we must candidly state that the Special Leave Petition is innocent of these two issues and the arguments at the bar have avoided virgin adventures.
Even so, the points have been raised and counsel have helped with their submissions.
We therefore, proceed to decide.
The facts.
The judgment debtors (appellants) suffered a decree against them in O.S. No. 57 of 1972 in a sum of Rs. 2.5 lakhs, the respondent bank being the decree holder.
There are two other money decrees against the appellants (in O.S. 92 of 1972 and 94 of 1974), the total sum payable by them being over Rs. 7 lakhs.
In execution of the decree in question (O.S. 57 of 1972) a warrant for arrest and detention in the civil prison was issued to the appellants under section 51 and o.21, r. 37 of the Civil Procedure Code on 22 6 1979.
Earlier, there had been a similar warrant for arrest in execution of the same decree.
Besides this process, the decree holders had proceeded against the properties of the judgment debtors and in consequence, all these immovable properties had been attached for the purpose of sale in discharge of the decree debts.
It is averred that the execution court has also appointed a Receiver for the management of the properties under attachment.
In short, 916 the enjoyment or even the power to alienate the properties by the judgment debtors has been forbidden by the court direction keeping them under attachment and appointing a Receiver to manage them.
Nevertheless, the court has issued a warrant for arrest because, on an earlier occasion, a similar warrant had been already issued.
The High Court, in a short order, has summarily dismissed the revision filed by the judgment debtors against the order of arrest.
We see no investigation having been made by the executing court regarding the current ability of the judgment debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts.
The question is whether under such circumstances the personal freedom of the judgment debtors can be held in ransom until repayment of the debt, and if section 51 read with O. 21, r. 37, C.P.C. does warrant such a step, whether the provision of law is constitutional.
tested on the touchstone of fair procedure under article 21 and in conformity with the inherent dignity of the human person in the light of article 11 of the International Covenant on Civil and Political Rights.
A modern Shylock is shacked by law 's humane hand cuffs.
At this stage, we may notice the two provisions.
Section 51 runs thus: 51.
Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree holder, order execution of the decree (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require.
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied (a) that the judgment debtor, with the object or effect of obstructing or delaying the execution of the decree (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or 917 (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment debtor has, or has had sine the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account.
Explanation.
In the calculation of the means of the judgment debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.
(Emphasis added) We may here read also order 21 Rule 37: 37.
(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison: Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor.
Right at the beginning, we may take up the bearing of article 11 on the law that is to be applied by an Indian Court when there is a specific provision in the Civil Procedure Code, authorising detention 918 for non payment of a decree debt.
The Covenant bans imprisonment merely for not discharging a decree debt.
Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor 's person in civil prison, as hostage by the court.
India is now a signatory to this Covenant and article 51 (c) of the Constitution obligates the State to "foster respect for international law and treaty obligations in the dealings of organised peoples with one another".
Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter.
A. H. Robertson in "Human Rights in National and International Law" rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law.
From the national point of view the national rules alone count.
With regard to interpretation, however, it is a principle generally recognised in national legal system that, in the event of doubt, the national rule is to be interpreted in accordance with the State 's international obligations.
The position has been spelt out correctly in a Kerala ruling on the same point.
In that case, a judgment debtor was sought to be detained under O. 21, r. 37 C.P.C. although he was seventy and had spent away on his illness the means he once had to pay off the decree.
The observations there made are apposite and may bear exception: The last argument which consumed most of the time of the long arguments of learned counsel for the appellant is that the International Covenants on Civil and Political Rights are part of the law of the land and have to be respected by the Municipal Courts.
Article 11, which I have extracted earlier, grants immunity from imprisonment to indigent but honest judgment debtors.
The march of civilization has been a story of progressive subordination of property rights to personal freedom; and a by product of this subordination finds noble expression in the declaration that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." This revolutionary change in the regard for the human person is spanned by the possible shock that a resuscitated Shylock would suffer if a modern Daniel were to come to judgment 919 when the former asks the pound of flesh from Antonio 's bosom according to the tenor of the bond, by flatly refusing the mayhem on the debtor, because the inability of an impecunious oblige shall not imperil his liberty or person under the new dispensation proclaimed by the Universal Declaration of Human Rights.
Viewed in this progressive perspective we may examine whether there is any conflict between section 51 CPC and Article 11 of the International Covenants quoted above.
As already indicated by me, this latter provision only interdicts imprisonment if that is sought solely on the ground of inability to fulfil the obligation.
Section 51 also declares that if the debtor has no means to pay he cannot be arrested and detained.
If he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he incurs the liability to imprisonment under section 51 of the Code, but this does not violate the mandate of Article 11.
However, if he once had the means but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment. .
The judgment dealt with the effect of international law and the enforceability of such law at the instance of individuals within the State, and observed: The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken.
I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules.
Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated; but individual citizens cannot complain about their breach in the municipal courts even if the country concerned has adopted the covenants and ratified the operational protocol.
The individual cannot come to Court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures.
In short, the basic human rights enshrined in the International Covenants above referred to, may at best inform judicial institutions and inspire legislative action within member States; but apart from such deep reverence, remedial action 920 at the instance of an aggrieved individual is beyond the area of judicial authority.
While considering the international impact of international covenants on municipal law, the decision concluded: Indeed the construction I have adopted of section 51, CPC has the flavour of Article 11 of the Human Rights Covenants.
Counsel for the appellant insisted that law and justice must be on speaking terms by justice he meant, in the present case that a debtor unable to pay must not be detained in civil prison.
But my interpretation does put law and justice on speaking terms.
Counsel for the respondent did argue that International Law is the vanishing point of jurisprudence is itself vanishing in a world where humanity is moving steadily, though slowly, towards a world order, led by that intensely active, although yet ineffectual body, the United Nations Organisation.
Its resolutions and covenants mirror the conscience of mankind and insominate, within the member States, progressive legislation; but till this last step of actual enactment of law takes place, the citizen in a world of sovereign States, has only inchoate rights in the domestic Courts under these international covenants.
While dealing with the impact of the Dicean rule of law on positive law, Hood Phillips wrote and this is all that the Covenant means now for Indian courts administering municipal law The significance of this kind of doctrine for the English lawyer is that it finds expression in three ways.
First, it influences legislators.
The substantive law at any given time may approximate to the "rule of law", but this only at the will of Parliament.
Secondly, its principles provide canons of interpretation which express the individualistic attitude of English courts and of those courts which have followed the English tradition.
They give an indication of how the law will be applied and legislation interpreted.
English courts lean in favour of the liberty of the citizen, especially of his person: they interpret strictly statutes which purport to diminish that liberty, and presume that Parliament does not intend to restrict private rights in the absence of clear words to the contrary.
921 The positive commitment of the States Parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India.
Indeed, the Central Law Commission, in its Fifty Fourth Report, did cognise the Covenant, while dealing with section 51 C.P.C.: The question to be considered is, whether this mode of execution should be retained on the statute book, particularly in view of the provision in the International Covenant on Civil and Political Rights prohibiting imprisonment for a mere non performance of contract.
The Law Commission, in its unanimous report, quoted the key passages from the Kerala ruling referred to above and endorsed its ratio. 'We agree with this view ' said the Law Commission and adopting that meaning as the correct one did not recommend further change on this facet of the Section.
It is important to notice that, interpretationally speaking, the Law Commission accepted the dynamics of the changed circumstances of the debtor : However, if he once had the means but now has not, or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment.
This is reiterated by the Commission: Imprisonment is not to be ordered merely because, like Shylock, the creditor says: "I crave the law, the penalty and forfeit of my bond.
" The law does recognise the principle that "Mercy is reasonable in the time of affliction, as clouds of rain in the time of drought.
" We concur with the Law Commission in its construction of section 51 C.P.C. It follows that quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with article 11 of the Covenant, because then no detention is permissible under section 51, C.P.C. Equally meaningful is the import of article 21 of the Constitution in the context of imprisonment for non payment of debts.
The high 922 value of human dignity and the worth of the human person enshrined in article 21, read with articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence.
Maneka Gandhi 's case as developed further in Sunil Batra vs Delhi Administration, Sita Ram & Ors.
vs State of U.P. and Sunil Batra vs Delhi Administration lays down the proposition.
It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling.
To be poor, in this land of daridra Narayana, is no crime and to 'recover ' debts by the procedure of putting one in prison is too flagrantly violative of article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.
Unreasonableness and unfairness in such a procedure is inferable from article 11 of the Covenant.
But this is precisely the interpretation we have put on the Proviso to section 51 C.P.C. and the lethal blow of article 21 cannot strike down the provision, as now interpreted.
The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree".
This implies, superficially read, that if at any time after the passing of an old decree the judgment debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless.
This is not a sound position apart from being inhuman going by the standards of article 11 (of the Covenant) and article 21 (of the Constitution).
The simple default to discharge is not enough.
There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it.
The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.
Here considerations of the debtor 's other pressing needs and straitened circumstances will play prominently.
We would have, by this construction, sauced law with justice, harmonised section 51 with the Covenant and the Constitution.
The question may squarely arise some day as to whether the Proviso to section 51 read with O. 21, r. 37 is in excess of the Constitutional 923 mandate in article 21 and bad in part.
In the present case since we are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires, that is why we are desisting from that essay.
In the present case the debtors are in distress because of the blanket distraint of their properties.
Whatever might have been their means once, that finding has become obsolete in view of later happenings; Sri Krishnamurthi Iyer for the respondent fairly agreed that the law being what we have stated, it is necessary to direct the executing court to re adjudicate on the present means of the debtors vis a vis the present pressures of their indebtedness, or alternatively whether they have had the ability to pay but have improperly evaded or postponed doing so or otherwise dishonestly committed acts of bad faith respecting their assets.
The court will take note of other honest and urgent pressures on their assets, since that is the exercise expected of the court under the proviso to section 51.
An earlier adjudication will bind if relevant circumstances have not materially changed.
We set aside the judgment under appeal and direct the executing court to decide de novo the means of the judgment debtors to discharge the decree in the light of the interpretation we have given.
P.B.R. Appeal allowed.

summary/full:
The appellants were the judgment debtors while the respondent bank was the decree holder.
In execution of the decree a warrant for arrest and detention in civil prison was issued to the appellants under section 51 and order 21, rule 37 of the Code of Civil Procedure.
On an earlier occasion there had been a similar warrant for arrest in execution of the same decree.
The decree holders also proceeded against the properties of the judgment debtors and in consequence all their immovable properties had been attached for the purpose of sale in discharge of the decree debts.
A receiver was appointed by the execution court to manage the properties under attachment.
Even so, the court had issued a warrant for the arrest of the judgment debtors because on an earlier occasion a similar warrant had already been issued without any investigation as regards the current ability of the judgment debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts.
On the question whether under such circumstances personal freedom of the judgment debtors can be held to ransom until repayment of the debt.
Allowing the appeal, ^ HELD: 1.
The words in section 51 which hurt are "or has had since the date of the decree the means to pay the amount of the decree.
" Superficially read this implies that if at any time after the passing of an old decree the judgment debtor had come by some resources and had not discharged the decree he could be detained in prison even though at that later point of time he was found to be penniless.
This is not a sound position, apart from being inhuman going by the standards of Article 11 of the International Covenant on Civil and Political Rights and Article 21.
A simple default to discharge is not enough.
There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively current means to pay the decree or a substantial part of it.
The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.
Considerations of the debtor 's other pressing needs and straitened circumstances will play prominently.
[922E G] 2.
Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor 's person in civil prison, as hostage by the court.
India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to "foster respect for 914 international law and treaty obligations in the dealings of organised peoples with one another".
Even so, until the Municipal Law is changed to accommodate the Covenant what binds the courts is the former not the latter.
[918A B] 3.
Quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Article 11 of the Covenant because then no detention is permissible under section 51 of the Code of Civil Procedure.
[921G] 4.
The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence.
To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling.
To be poor is no crime and to "recover" debts by the procedure of putting one in prison is flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.
Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant.
But this is precisely the interpretation put on the proviso to section 51 C.P.C. and the lethal blow of Article 21 cannot strike down the provision as interpreted.
[922A D]