judgement:
Appeal No. 178 of 1955.
Appeal by special leave from the judgment and decree dated December 3, 1951, of the High Court of Judicature at Madras in Second Appeal No. 766 of 1947 against the decree dated November 19, 1946, of the District Court of Anantapur in Appeal No. 130 of 1945 arising out of the decree dated January 31, 1945, of the Court of Subordinate Judge, Anantapur, in Original Suit No. 10 of 1944.
M. C. Setalvad, Attorney General of India, P. Ram Reddy, K. Sundararajan and M. section K. Aiyangar, for the appellant.
C. K. Daphtary, Solicitor General of India, and K. R. Chaudhury, for the respondent.
December 5.
The Judgment of the Court was delivered by JAGANNADHADAS J.
The plaintiff in the action out of which this appeal arises brought a suit for declaration of his title to a one third share in the suit properties and for partition and recovery of that share.
The suit was dismissed as having been barred by limitation and adverse possession.
On appeal the District Judge reversed the decision and decreed the suit.
High Court maintained the decree of the District Judge on second appeal.
Hence this appeal before us on special 197 leave by the first defendant in the action, who is the appellant before us.
The main question that arises in the appeal is whether the plaintiff has lost his right to a one third, share in the suit property by adverse possession.
The property in suit belonged to one Venkata Reddy.
He died an infant on Augutst 25, 1927.
At that time, the properties were in the possession of the matemal uncles of the father of the deceased Venkata Reddy.
One Hanimi Reddy, an agnatic relation of Venkata Reddy, filed a suit O.S. No. 26 of 1927 for recovery of the properties from 'the said matemal uncles and obtained a decree therein on March 15, 1929.
A Receiver was appointed for the properties in February, 1928, during the pendency of the suit and presumably the properties were in his possession.
This appears from the decree which shows that it directed the Receiver to deliver possession to the successful plaintiff in that suit ' Hanimi Reddy obtained actual possession of these properties on January 20, 1930, and continued in possession till he died on August 16, 1936.
The first defendant in the present action who is the appellant before us is a son of the brother of Hanimi Reddy and came into possession of all the properties as Hanimi Reddy 's heir.
The respondent before us is the plaintiff.
The present suit was brought on the allegation that the plaintiff and the second defendant in the suit, his brother, were agnatic relations of Venkata Reddy, of the same degree as Hanimi Reddy and that all the three were equal co heirs of Venkata Reddy and succeeded to his properties, as such on his death.
It was alleged that though Hanimi Reddy filed the prior suit and obtained possession of the properties thereunder, he did so as one of the do heirs, with the consent of the plaintiff and the second defendant and that he was enjoying the properties jointly with the plaintiff and his brother as tenants in common but that the first defendant, who came into possession on the death of Hanimi Reddy denied the title of the plaintiff and his brother in or about the year 1940.
The plaint in the present action was filed originally in the District Munsif s Court on October 23, 1941, and was ordered 198 to be returned for presentation; to the District Judge 's Court on November 30, 1942.
It was actually re presented in that Court on December 2, 1942.
One of thequestions raised in the suit was that the, suit was, barred by limitation on the ground that it must be taken to have been ingtituted not on October(23, [1941], but on December 2, 1942.
This plea was upheld by the trial Court.
On first appeal the District Judge held that the plaintiff is entitled to the benefit of a. 14 of the Limitation Act and that the suit must be taken as having been instituted on October 23, 19419 and is; therefore, in time.
He accordingly decreed, the suit.
In the High Court the question as to whether the plaintiff was entitled to the benefit of.
14 of the, Limitation Act, though raised, was not finally decided.
It was held that the possession of Hanimi Reddy was not adverse to the plaintiff and that accordingly he was entitled to the decree as prayed for.
The question as to the non availability of the benefit of section 14 of the Limitation Act to the plaintiff in the present suit has not been, urged before us and the finding of the District Judge that the plaint must be taken to have been validly presented on October 23, 1941, stands.
That date must, therefore, be taken to be the commencement of the action for the purposes of this appeal.
It will be noticed that this date is more than fourteen years from the date when the succession opened to the properties of Venkata Reddy on August 25, 1927, but is less than twelve years after Hanimi Reddy obtained actual possession in execution of his decree on January 20, 1930.
The contention of the learned Attomey General for the appellant first defendant is that the possession of Hanimi Reddy was adverse, that the plaintiff as well as the second defendant lost their right by the adverse possession of Hanimi Reddy and his successor, the first defendant, and that for this purpose not only the period from January 20, 1930, up to October 23, 1941, is to be counted but also the prior period during the pendency of Hanimi Reddy 's suit when the Receiver was in possession of the suit properties.
It is the.
validity of 199 these two parts of the argument which has to be considered.
It will be convenient to consider in the first instance whether or not the possession of Hanimi Reddy from January 20, 1930, up to the date of his death in 1936 was adverse to his co heirs.
The :facts relevant for this pur ,pose are the following.
At the date when Venkata Reddy died his properties were in the custody of the two maternal uncles of his father.
Hanimi Reddy filed his suit on the allegation, as already stated above, that he was the nearest agnatic relation alive of the deceased minor Venkata Reddy and as his next rightful heir to succeed to all the estate, movable and immovable, of the said minor, set forth in the schedules thereto.
He appended a genealogical tree to his plaint which showed his relationship io Venkata Reddy through a common ancestor and showed only the two lines of himself and Venkata Reddy.
Plaintiff and the second defendant belong to another line emanating from the same common ancestor but that line was not shown and the plaintiff and second defendant were ignored.
The first defendant in the present suit did not admit the relationship of plaintiff and second defendant in his written statement.
He disputed that the father of the plaintiff and second defendant was descended from the common ancestor either by birth or by adoption, as shown in the genealogical table attached to the present plaint.
It is possible that this may have been the reason for Hanimi Reddy ignoring the plaintiff and the second defendant in his suit.
However this may be, at the trial in this suit it was admitted that the plaintiff and the second defendant are the agnatic relations of Venkata Reddy of the same degree as Hanimi Reddy.
The defendants in the earlier suit who were in possession on that date claimed to retain possession on behalf of an alleged illatom sonin law (of Venkata Reddy 's father) a son of the second defendant therein.
It may be mentioned that in that part of the country (Andhra) an illatom son in law is a boy incorporated into the family with a view to give a daughter in marriage and is customarily recognised as an heir in the absence of a natural born son, This 200 claim appears to have been negatived and the suit was decreed.
During the pendency of the suit a Receiver was appointed in February, 1928.
He presumably took possession though the date of his taking possession is not on the record.
The decree in that suit dated March 15, 1929, is as follows: "This Court doth order and decree that plaintiff do recover possession of immovable property and movables in the possession of the Receiver.
" It is in the evidence of the first defendant himself as D.W. I that the properties, were taken possession of by Hanimi Reddy on January 20, 1930.
The plaintiff examined himself as P.W. 1 to substantiate the case as set out in his plaint that he and the second defendant and Hanimi Reddy were enjoying the properties jointly as tenants in common.
The relevant portion of his evidence is as follows: "Annu Reddy (Hanimi Reddy) uncle of defendant " and myself filed 0.
section No. 26 of 1927, District Court, Anantapur same as O.S. No. 24 of 1928, Sub Court, Anantapur for the properties of the deceased Venkata Reddy.
As Hanimi Reddy was the eldest member, he was attending to the conduct of that suit.
I was also coming to Court along with him.
The suit ended in our favour.
Hanimi Reddy took possession through Court after the decree in the year 1930.
Since then both Hanimi Reddy and myself have been in joint possession and enjoyment of the same.
" In cross examination he said as follows: "I told Hanimi Reddy that I would also join him as a party in O.S. 24 of 1928.
He said there was no need for me to join and that he would give my share to me. . . .
I did nut file any application to be impleaded as a defendant. . . .
I have nothing in writing to show that Hanimi Reddy was giving me any produce from the suit lands.
" The first defendant filed the plaint, judgment and decree in Hanimi Reddy 's suit as also pattas, cist receipts and lease deeds taken by Hanimi Reddy in his time.
With reference to this evidence the trial Court found as follows; 201 "The documents filed on behalf of the first defendant completely establish that Hanimi Reddy filed the suit in his individual capacity and obtained possession thereof.
There is nothing to indicate that either the plaintiff or the second defendant took any interest in those proceedings. . . .
There is no evidence of Hanimi Reddy having given any produce to the plaintiff or to the second defendant. . .
The plaintiff and the second defendant have been excluded from participation of profits to their knowledge since 1930.
" The learned District Judge found on appeal (when the same was remanded to him for a finding by the High Court) as follows: "I have no hesitation in holding that the plaintiff had nothing to do with the institution or conduct of the suit 0.
section No. 24 of 1928 on the file of the Sub Court of Anantapur, and that he never had any actual joint enjoyment of suit properties with the late D. Hanimi Reddy or the first defendant.
" He has not given a finding as to whether the non participation of the profits by the plaintiff and the second defendant was in the nature of exclusion to their knowledge.
But there are some admitted and relevant facts brought out in evidence which are significant.
The present evidence as well 'as the ' plaint in the earlier suit of 1927 show clearly that all the parties including Hanimi Reddy were residents of village Mamuduru.
All the suit properties are situated in that village itself; as appears from,the schedules to the plaint in the earlier suit.
Hanimi Reddy and the plaintiff were fairly closely related as appears from the plaintiff 's admission as follows: "My brother in law who is also the nephew of Hanimi Reddy was staying with Hanimi Reddy.
My father in law and defendant No. 1 's father in law is the same.
" On these facts the question that arises is whether, in law, the possession of Hanimi Reddy from January, 20, 1930, onwards was adverse to the plaintiff and the second defendant.
26 202 Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario.
(See Secretary of State for India vs Debendra Lal Khan(1)).
The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
(Se(,, Radhamoni Debi vs Collector of Khulna(2)).
But it is well settled that in order.
to establish adverse possession of one co heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties.
Ouster of the non possessing co heir by the co heir in possession, who claims his possession to be.
adverse, should be made out.
The possession of one co heir is considered, in law, as possession of all the co heirs.
When one co heir is found to be in possession of the properties it is presumed to be on the basis of joint title.
The coheir in possession cannot render his possession adverse to the other co heir not in possession merely by any secret hostile animus on his own part in derogation of the other co heir 's title.
(See Corea vs Appuhamy(3)).
It is a settled rule of law that as between co heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.
This does not necessarily mean that there must be an express demand by one and denial by the other.
There are cases which have held that adverse possession and ouster can be inferred when one co heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir ' takes no steps to vindicate his title.
Whether that line of cases is right or wrong we need not pause to consider.
It is sufficient to notice that the Privy Council in N. Varada Pillai vs Jeevarathnammal(4) q uotes, apparently with approval, a passage from Culley vs Deod Taylerson(5) which indicates that such a situation may Tell lead to an inference of (1) [1933] L.R. 6i I.A. 78, 82.
(2) [1900] L.R. 27 I.A. 136, 140.
(3) (4) A.I.R. 1919 P.C. 44, 47.
(5) 3 P. & D. 539; 52 R.R. 566.
203 ouster "if other circumstances concur".
(See also Govindrao vs Rajabai(1)).
It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co heir by his adverse possession.
In the present case there can be no doubt that Hanimi Reddy obtained sole possession of the suit properties after the death of Venkata Reddy on the basis of an action against third parties in which he claimed to be the sole nearest male agnate having title to all the properties.
After obtaining possession he was in continuous and undisputed possession of the properties till his death enjoying all the profits thereof.
No doubt in an ordinary case such possession and enjoyment has to be attributed to his lawful title, he being one of the co heirs.
But the plaint in the suit of 1927 and the decree therein render it reasonably clear that he filed the suit and obtained possession on the basis of his having exclusive title ignoring his coheirs.
It is urged that knowledge of the assertion of such exclusive title averred in a plaint cannot be imputed to other co heirs who are not parties to the suit.
But in this case it is not difficult on the evidence to ,say that the plaintiff and the second defendant must have been fully aware, at the time, of the nature of the claim made by Hanimi Reddy in the prior litigation and on the basis of which he obtained possession.
That knowledge is implicit in the very case that they have put forward in the present plaint.
Their case is that the prior suit was brought by Hanimi Reddy with the consent of the plaintiff and the second defendant and on their behalf.
No doubt that specific case has been found against them and that finding is yes judicata between the parties.
But there is no reason why the admission as to the knowledge of the nature of the litigation and the contents of the plaint which such a case necessarily implies should not be attributed at least to the present plaintiff.
It appears reasonable to think that the plaintiff being unable to explain his inaction for over fourteen years after the death of Venkata Reddy has been constrained to put (1) A. I. R. 204 forward a false case that the prior suit by Hanimi Reddy was with his consent and on his behalf.
It is significant that the plaintiff has remained silent with out asserting his right during Hanimi Reddy 's lifetime, and comes forward with this suit after his death, rendering it difficult to ascertain whether the fact of Hanimi Reddy completely ignoring the existence of the plaintiff and the second defendant as co heirs was not in denial of their relationship and consequently of their title as co heirs to their knowledge.
The fact that even so late as in the written statement of the first defendant relationship is denied may be indicative as to why Hanimi Reddy ignored the plaintiff and the second defendant and why they remained silent.
The learned Judges of the High Court thought that there was nothing to show that Hanimi Reddy was aware that plaintiff and second defendant had any rights in the properties as co heirs.
This assumption is contrary to the admission of mutual knowledge of each other 's rights implicit in the plaintiff 's case that Hanimi Reddy brought his suit with the consent of the plaintiff.
In such circumstances and especially having regard to the fact that both the plaintiff and Hanimi Reddy were living in the same village and the plaintiff has put forward a false explanation to account for ' his inaction, a Court of fact might well have inferred ouster.
Sitting on an appeal in special leave, however, we do not feel it desirable to decide the case on this ground.
We, therefore, proceed to consider the further question that arises in the case, viz., whether the Receiver 's possession can be tacked on to Hanimi Reddy 's possession, on the assumption that Hanimi Reddy 's possession on and from January 209 1940, was adverse to the plaintiff.
The learned Attorney General urges that prior possession of the Receiver pending the suit must be treated as possession on behalf of Hanimi Reddy with the animus of claming sole and exclusive title disclosed in his plaint.
In support of this contention he relies on the well known legal principle that when a Court takes possession of properties through its Receiver, such Receiver 's possession is that of all the 205 parties to the action according to their titles.
(See Kerr on Receivers, 12th Ed., p. 153).
In Woodroffe on the Law relating to Receivers (4th Ed.) at p. 63 the legal position is stated as follows: " The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis, for the benefit of whoever may be ultimately determined to be entitled thereto.
" But does this doctrine enable a person who was not previously in possession of the suit properties, to claim that the Receiver must be deemed to have taken possession adversely to the true owner, on his behalf, merely because he ultimately succeeds in getting a decree for possession against the defendant therein who was previously in possession without title.
A 'Receiver is an officer of the Court and is not a particular agent of any party to the suit, notwithstanding that in law his possession is ultimately, treated as possession of the successful party on the termination of the suit.
To treat such Receiver as plaintiff 's agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong doing to the Court and its officers.
The doctrine of Receiver 's possession being that of the successful party cannot, in our opinion, be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receiver 's possession to his subsequent adverse possession.
The position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour.
In such a case the question that would arise would be different, viz., whether the interim possession of the Receiver would be a; dis continuance or abandonment of possession or interrupt.
ion of the adverse possession.
We are not concerned with it in this case and express no opinion on it.
The matter may be looked at from another point of view.
It is well settled that limitation cannot begin 206 to run against a person unless at the time that person is legally in a position to vindicate his title by action.
Mitra 's Tagore Law Lectures on Limitation and Prescription (6th Ed.) Vol.1, Lecture VI, at p. 159, quoting from Angell on Limitation, this Principle is stated in the following terms: " An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him who was in possession.
(Angell, sections 390 and 398).
It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.
" Consonant with this principle the commencement of adverse possession, in favour of a person, implies that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action.
It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.
In the leading case of Agency Company vs Short(1) the Privy Council points out that there is discontinuance of adverse possession when possession has been abandoned and gives as the reason therefor, at p. 798, as follows: " There is no one against whom he (the rightful owner) can bring his action.
" It is clearly implied therein that adverse possession cannot commence without actual possession which can furnish cause of action.
This principle has been also.explained in Dwijendra Narain Roy vs Joges Chandra De(2) at p. 609 by Mookerjee J. as follows : The substance of the matter is that time runs when the cause of action accrues, and a. cause of action accrues, when there is in existence a person who can (1) (2) A.I.R. 1924 Cal.
6oo, 207 sue and another who can be sued. .
The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief.
The statute (of limitation) does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained.
Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result.
" In the present case, the co heirs out of possession such as the plaintiff and the second defendant were not obliged to bring a suit for possession against Hanimi Reddy until such time as Hanimi Reddy obtained actual possession.
Indeed during the time when the Receiver was in possession, obviously, they could not sue him for possession to vindicate their title.
Nor were they obliged during that time to file a futile suit for possession either against Hanimi Reddy or against the defendants in Hanimi Reddy 's suit when neither of them was in possession.
It appears to us, therefore, that the adverse possession of Hanimi Reddy, if any, as against his co heirs could not commence when the Receiver was in possession.
It follows that assuming that the possession of Hanimi Reddy from January 20, 1930, was in fact adverse and amounted to ouster of the co heirs such adverse possession was not adequate in time by October 23, 1941, the date of suit, to displace the title of the plaintiff.
It follows that the plaintiff respondent before us is entitled to the decree which he has obtained and that the decision of the High Court is, in our view, correct, though on different grounds.
It may be mentioned that objection has been raised on behalf of the respondents before us that the question" of tacking on Receiver 's possession was not in issue in the lower Courts and should not be allowed to be raised here.
In the view we have taken it is unnecessary to deal with this objection.
In the result the appeal is dismissed with costs.
Appeal dismissed.

summary/full:
V died an infant in 1927 and H, an agnatic relation.
filed a, suit for the recovery of the properties belonging to V which were in the possession of third parties, on the ground that he was the sole nearest male agnate entitled to all the properties.
During the pendency of the suit a Receiver was appointed for the properties in February, 1928.
The suit having been decreed H obtained possession of the properties from the Receiver on January 20, 1930, and after his death in 1936, his nephew, the appellant, got into possession as His heir.
On October 23, 1941, the respondent brought the present suit for the recovery of a one third share of the properties from the appellant on the footing that he and his brother were agnatic relations of V of the same degree as H, that all the three were equal co heirs of V and that H obtained the decree and got into possession on behalf of all the co heirs.
The appellant resisted the suit and contended that the respondent lost his right by the adverse possession of H and his successor and that for this purpose not only the period from January 20, 1930, to October 23, 1941, was to be counted, but also the prior period when the Receiver was in possession of the properties during the pendency of H 's suit.
it was found that the; respondent 's case that H obtained the decree and got possession, from the Receiver on behalf of the other co heirs was not true : Held, that the respondent did not lose his right by adverse possession.
Even assuming that H 's possession from January 20, 1930, was adverse and amounted to ouster of the other co heirs, such adverse possession was not adequate in time to displace the title of the respondent and the period during which the Receiver was in possession could not be added, because (1) the Receiver 's 196 possession could not be tacked on to H 's possession, as a Receiver is an officer of the Court and is not the agent of any party to the suit and notwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit, he could not be considered as the agent of such party with ' the animus of claiming sole and exclusive title with the view to initiate adverse possession ; and (2) during the time of the Receiver 's possession the respondent could not sue H, and limitation could not therefore run against him.
The possession of one co heir is considered, in law, as possession of all the co heirs and in order to establish adverse possession ouster of the non possessing co heir should be made out and as between them there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.


judgement:
tition Nos.
43 of 1981, 51 53, 415 18/81, 5465 5562/83, 1751 52/81 and 7763 7890 of 1983.
676 Dr. L. M. Singhvi, B. Kanta Rao, Lakshmi Kant Pandy and J. Eswara Prasad for the Petitioners.
M. section Ganesh, Ms. Lata Krishnamoorty and T.V.S.N. Chari for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Should article 32 of the Constitution lend its assistance to petitioners in this group of petitions so that the poor in Andhra Pradesh can be successfully deprived of their staple simple breakfast ? Even an imaginary marginal dent in the profits of the hoteliers stirs it into action by an easy resort to a writ petition under article 32 and an ex parte stay which itself is success even if the petition ultimately fails because in the meantime the measure which may possibly affect their profits is kept under suspended animation and the profit being continuously derived from scattered consumers is not refundable and the unjust enrichment is enjoyed with impunity.
This case amply illustrates the point.
Hoteliers of Andhra Pradesh raised a hue and cry when the Government of Andhra Pradesh the first respondent enacted and proclaimed in exercise of the powers conferred by Sec. 3 of the (1955 Act for short) read with the notification of the Ministry of Agriculture and Irrigation dated June 9, 1978, the Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order.
1978 (1978 Order for short) dated September 8, 1978 whereby it was made obligatory for the catering establishments to display the prices of all foodstuffs served by the establishment and simultaneously fixed the maximum price of seven items of food comprising the poorman 's menu in the State of Andhra Pradesh.
The seven items enumerated in the Schedule appended to the 1978 Order include idli, vada, upma, sada dosa, puree, coffee, tea and a rice plate (scheduled items for short).
3 of the Order prescribed maximum prices of the scheduled items of food and cl. 4 makes it obligatory to display in English and principal language of the area the weight or measure and price of every item of foodstuff offered for sale in the establishment.
There were consequential provisions such as power to issue directions, power to call for information, power of entry, search & seizure and power to grant exemption as also power to amend the Schedule.
A clarificatory notification was issued on October 3, 1978 giving certain directions.
677 The Schedule and the rates set out therein were modified by the Amending Order dated December 11, 1980.
The amendment catered to an upward revision of the prices.
It seems some further negotiations took place between the Minister of Civil Supplies and Labour on the one hand and hoteliers on the other which led to a notification dated January 5, 1981 (1981 Order for short) giving further upward revision in maximum price of scheduled items and the scheduled items were reduced from 7 to 6 deleting rice place.
Ignoring this latest order which replaced the earlier orders, the petitioners approached this Court and obtained an ex parte stay of the implementation of Orders dated September 5, 1978 and December 11, 1980.
In fact, but for the intervention by the Court staying the operation of earlier orders, the order dated January 5, 1981 was not stayed yet effectively the petitioners succeeded in putting into cold storage the price fixation order leaving them free to charge any price unhampered and uninhibited by any governmental action.
Dr. L.M. Singhvi, who led on behalf of the petitioners made two submissions which have nothing to do with the validity or legality of the impugned Orders.
He submitted that the Court should give a direction to the State Government to re examine the prices of inputs and overhead charges so as to arrive at such maximum price of the scheduled commodities as to ensure a reasonable return on the investment which would render the restriction on the fundamental right to carry on trade, reasonable and satisfy article 19 (1) (g) of the Constitution.
He next submitted that there are certain directions in the 1978 and 1981 orders which are impossible of compliance and, therefore, the petitioners should be heard before they are compelled to implement the conditions.
Neither of the submissions has any impact on the validity of the impugned Orders.
It may, however, be pointed out how the petitioners suppressing material facts succeeded in obtaining an ex parte stay order.
In the counter affidavit filed by one Mr. D. Muralikrishna, Director of Civil Supplies, it was stated that after the Order dated December 11, 1980 was issued the hoteliers resorted to some agitation which led to the Minister of Civil Supplies calling a meeting of the hoteliers.
What transpired at this meeting may be extracted from the counter affidavit: "The Minister for Civil Supplies therefore convened a meeting at Hyderabad on 31.12.80 with the representatives of hoteliers all over the State and the Joint Collectors.
At the said meeting all the issues involved were thoroughly 678 discussed.
After prolonged discussions, the hoteliers of the districts have agreed unanimously for reducing the prices in respect of 6 items of foodstuffs excluding meals and an undertaking to that effect was signed by the hoteliers at 1.30 a.m. on 1.1.1981.
" A copy of the undertaking is produced at Annexure 'B ' to the counter affidavit which inter alia also provided that the rates of the scheduled items determined with the consent of the hoteliers will be reviewed after three months.
What is now demanded is that the State Government should examine the prices of inputs and overhead charges and determine afresh the maximum prices of the scheduled items, which was very much an integral part of an over all agreement between the State Government and the hoteliers.
After suppressing this material fact from the Court in the petition, the petitioners obtained an ex parte stay order on January 12, 1981 and this was suppression of such a material fact as would disentitle the petitioners to any relief at the hands of this Court.
That apart review at reasonable interval is implicit in any price fixation measure.
The second submission that the petitioners be heard to point out the impossibility of complying with some of the conditions of the Orders is merely to be stated to be rejected.
If the real bone of contention was the maximum price of scheduled items which was to be thrashed out by discussion, it is not possible to accept the submission that the petitioners would not have put forth their grievances about the impossibility of complying with some of the conditions of the impugned orders.
There is not a whisper about it in the agreement Annexure 'B ' and we do not find anything very unusual or impracticable in the conditions prescribed in the impugned orders.
Mr. B. Kanta Rao who appeared for some of the petitioners urged that the State Government is not competent to issue any price control measure in respect of cooked food because the which confers power to issue orders in respect of essential commodities does not confer any power to issue any order in respect of cooked food.
3 of confers power on the Central Government by an order to provide for regulating or prohibiting the production, distribution and supply and trade in essential commodity or for securing their equitable distribution and availability at fair prices.
The power to fix price of essential commodity is implicit in the power conferred by of the Act and what is implicit in Sec.
3 (1) is made explicit by cl.
(c) of sub section (2) of Sec. 3 which provides that an order made under Sec. 3 (1) may provide (c) for controlling the price at which essential commodity may be bought or sold.
Clause (a) of Sec.
2 defines 'essential commodity ' to mean any of the items which include. (v) foodstuffs, including edible oilseeds and oils.
The submission is that the expression 'foodstuffs ' in its etymological and grammatical sense would mean raw foodstuffs or appropriately called food grains such as wheat, rice, jawar, bazra, maize etc.
but not cooked food which is a perishable commodity.
We see no justification for giving a restricted meaning to the expression 'foodstuffs '.
If power to control prices of raw foodstuffs such as rice or wheat is conferred by Sec. 3, we see no justification for that power not comprehending within its fold the power to regulate prices of articles made out of such raw foodstuffs.
Expression such as 'foodcrops ' 'spices ' and 'condiments ' indicate different species of articles of food but the general expression 'foodstuffs ' was interpreted to include spices and condiments also.
In the State of Bombay vs Virkumar Gulabchand Shah(1) this Court construed the expression 'foodstuffs ' in cl.
(3) of the Spices (Forward Contract Prohibition) Order of 1944 read with Sec. 2 (a) of the Essential Supplies (Temporary Powers) Act, 1946 to include turmeric.
After examining the definition of expression 'foodstuffs ' in Oxford English Dictionary and Webster 's International Dictionary and some decisions bearing on the subject, this Court held that the expressions 'food ' and 'foodstuffs ' can be used in both a wide and a narrow sense and that the circumstances and background can alone determine which is proper in any given case.
After examining the object and the intendment underlying enactment of Essential Supplies (Temporary Powers) Act, 1946, this Court held that if turmeric is a commodity essential to the life of the community it must be covered by the expression 'foodstuffs '.
Accordingly, it was held that the expression 'foodstuffs ' has been used in a wider sense in 1946 Act.
It may be recalled that the was enacted for the control of the production, supply and distribution of and trade and commerce in essential commodities.
It has the same object as the 1946 Act and therefore, the expression 'foodstuffs ' in 1955 Act must receive the same construction.
If that be so, the expression 'foodstuffs ' must obviously include cooked food also.
Further the expression 'food ' has generally been understood to mean nutritive material absorbed or taken into the body of an 680 organism which serves for purposes of growth work or repair and for the maintenance of the vital process.
What human beings consume is styled as food and what animals consume is described as animal feed.
This distinction has to be borne in mind.
Expression 'foodstuffs ' is made of two expressions, 'food ' plus 'stuff '.
In other words, the stuff which is used as food would be foodstuff.
Therefore, foodstuff is that which is taken into the system to maintain life and growth and to supply waste of tissue.
If the raw foodstuff with a view to making it consumable by human beings undergoes a change of its condition by the process of cooking, the derivative is none the less foodstuff.
If raw rice is foodstuff, does rice when boiled in water cease to be foodstuff.
As the Chinese by an accidental fire in a hut where there were pigs learnt the advantage of consuming cooked food in place of raw food, the submission of Mr. Kanta Rao would make us march backward by centuries and be a disgrace to modern culinary article And 'food crop ' is another expression defined in the 1955 Act.
Therefore, the expression 'foodstuff ' as used in the 1955 Act comprehends cooked food.
The contention of Mr. Kanta Rao, therefore, must be negatived.
It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore, the exercise of fixing maximum price suffers from the vice of arbitrariness and must be declared unconstitutional as being violative of article 14.
While canvassing the submission, some attempt was made both on the side of the petitioners as well as on the side of the State to take us through the labyrinth of the tables drawn up by both side showing prices of inputs and overhead charges.
We declined to be involved in the vortex of this cost accountant 's exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise.
The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical.
For this malaise, petitioners have to thank themselves because it was an integral part of their agreement with the Minister of Civil Supplies on December 31, 1980 that the maximum prices fixed by the impugned orders would be re examined on the expiration of the three months from the date of the agreement.
Instead of honoring this agreement, the petitioners within a span of 12 days rushed to this Court and obtained ex parte stay order wholly suppressing the fact that the orders 681 impugned in these petitions have already been replaced by the latest order dated January 5, 1981.
Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.
In order to illustrate how the Court is not the forum for scientifically structuring prices of commodities, it may be pointed out that the petitioners in their price structure tables have added in respect of each scheduled item 24% of wages.
Totalling the wages for seven items the wage bill accumulates at 175%.
And that is equally true of other overhead charges.
Add to this numerous other items of food sold by petitioners in their establishments and the utter unsustainability of their claim becomes manifest.
We would however, reject the contention about the mechanics of price fixation on the short ground that petitioners, ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies.
No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold.
It is the over all picture in the trade or commerce that needs to be examined.
Petitioners have not shown that in their over all turnover they have since the promulgation of impugned orders suffered losses.
And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still born at the hands of the Court because of the ex parte stay order obtained by the petitioners.
And we reject this contention for the additional reason as laid down by a Constitution Bench of seven learned Judges of this Court in Prag Ice & Oil Mills & Anr.
vs Union of India(1) where Chandrachud, C.J. observed as under; "In the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid." 682 Not the slightest case is made out for departure from the proposition laid down by this Court as extracted hereinabove.
Before we conclude, we would like to pin point the unfair advantage which the petitioners have obtained by ex parte stay suppressing the material fact that the later order had already replaced the earlier orders and the latest order was issued with their consent.
In the Writ Petition No. 43/81 the prayer clause reads as under: "Issue a writ of mandamus or any other appropriate writ or order holding that G.O. Ms. No. 548 dated 8.9.1978 and G.O. Ms. No. 626 dated 11.12.1980 of the Government of Andhra Pradesh and the notification issued by the Collector, the second respondent herein dated 16.12.1980 in pursuance of the said impugned Orders as ultra vires, unconstitutional and void and quash the same.
" The bone of contention was not the power exercised by the State Government but the maximum prices fixed in exercise of the power conferred on the State Government.
The maximum prices were to be regulated as per the order dated January 5, 1981, and even though this Court was moved for ex parte stay on January 12, 1981, the fact that the latest order dated January 5, 1981 has replaced the earlier orders was suppressed from the Court.
And peculiarly the State Government did not pursue vigorously its latest notification dated January 5, 1981 because its operation was not stayed by the Court.
However, the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed.
Now that we are dismissing these petitions and vacate the stay orders, the notification fixing the maximum prices will revive and can be enforced.
But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the court by the exercise of the constitutional power under article 32 of the Constitution, and there is no way of depriving this unjust enrichment The Court 683 set up for justice, including socio economic justice, unfortunately lent its assistance to such unjust enrichment and yet we are helpless.
For the reasons herein discussed, we find no merits in any of the contentions canvassed on behalf of the petitioners and therefore, these petitions fail and they are dismissed with costs in each.
H.L.C. Petition dismissed.

dataset_name: IN-Abs

summary/full:
The Government of Andhra Pradesh, in exercise of powers conferred under the promulgated the Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order, 1978 fixing the maximum prices of seven items of cooked food listed in the Schedule thereto.
As the hoteliers in the State raised a hue and cry, the State Government effected an upward revision of the prices fixed by an Amending Order dated December 11, 1980.
The hoteliers were not satisfied with that and negotiations were held between them and the Minister of Civil Supplies and as a consequence another order dated January 5, 1981 was issued effecting yet another upward revision in the maximum prices fixed and also reducing the number of scheduled items from seven to six.
Ignoring this order which replaced the earlier orders, the petitioners approached this Court questioning the validity of the earlier orders and obtained an ex parte stay.
The contentions raised were: (i) that the State Government was not competent to issue any price control measure in respect of 'cooked food ' as the expression 'foodstuffs ' under the Act means raw foodstuffs only; and (ii) that the fixation of maximum prices of scheduled items under the impugned orders was arbitrary and violative of article 14 inasmuch as the prices were economically unprofitable as the same had been arrived at without scientifically examining the prices of inputs, over head charges, etc.
Dismissing the petitions, ^ HELD: 1.
The expression 'foodstuffs ' in section 2(a) (v) of the includes cooked food.
If power to control prices of raw foodstuffs such as rice or wheat in conferred by section 3, there is no justification for that power not comprehending within its fold the power to regulate prices of articles made out of such raw foodstuffs.
[678 A C] (i) The has the same object as the 1946 Act and therefore the expression 'foodstuffs ' in the 1955 Act must receive 675 the same construction which it received under the 1946 Act.
Expressions such as 'food crops ', 'spices ' and 'condiments ' indicate different spices of articles of food but the general expression 'foodstuffs ' was interpreted in the context of the 1946 Act to include spices and condiments also.
It was pointed out that although expressions 'food ' and 'foodstuffs ' could be used in both a wide and a narrow sense, the expression 'foodstuffs ' had been used in a wider sense in the 1946 Act.
[679 D G] State of Bombay vs Virkumar Gulabchand Shah, ; referred to.
(ii) The expression 'food ' has generally been understood to mean nutritive material absorbed or taken into the body of an organism which serves for purposes of growth, work or repair and for the maintenance of the vital process.
What human beings consume is styled as food and what animals consume is described as animal feed.
This distinction has to be borne in mind.
The expression 'foodstuffs ' is made of two expressions, 'food ' and 'stuff '.
In other words, the stuff which is used as food would be foodstuff.
Therefore, foodstuff is that which is taken into the system to maintain life and growth and to supply for waste of tissue.
If raw foodstuff with a view to making it consumable by human beings undergoes a change in its condition by the process of cooking, the derivative is none the less foodstuff.
[679 H, 680 A B] (iii) That the expression 'foodstuff ' as used in the 1955 Act comprehends cooked food is also clear from the fact that 'food crop ' has been separately defined in the Act.
[680 D] 2.
(a) The mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid.
[681 G H] Prag Ice & Oil Mills & Anr.
vs Union of India, ; relied on.
(b) The petitioners ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies.
No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold.
It is the overall picture in the trade or commerce that needs to be examined.
The petitioners have not shown that in their overall turnover they have since the promulgation of impugned orders suffered losses.
And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still born at the hands of the Court because of the ex parte stay order obtained by the petitioners.
[681 D F]


judgement:
ivil Appeal No. 6229 of 1983.
Appeal by Special leave from the Judgment and order dated the 29th May, 1980 of the Punjab and Haryana High Court in C.W.P. No. 1225 of 1980.
K.G. Bhagat, Addl.
Soliciter General and K. K. Mohan for the appellant.
R. N. Poddar For the Respondent.
The Judgment of the Court was delivered by: CHINNAPPA REDDY, J.
Special leave granted.
655 Smt.
P. Grover was an outstanding teacher.
In 1968 69, the Government of Haryana honoured her by presenting the State Award for teachers.
She attained the age of superannuation on August 2s0, 1978.
About two years before she attained the age of superannuation, she was promoted as acting District Education Officer with effect from July 19, 1976.
The Government of Haryana had taken a policy decision as early as in 1965 that the Services of teachers, who had received the National or State Awards, should be extended until they attained the age of 60 years, on an year by year basis, if their service record continued to be good otherwise.
Pursuant to the policy decision, Smt.
Grover 's services were extended first by one year and later by another year.
During the period of extension of service, she worked as Principal, Government Higher Secondary School, Mahendergarh.
She finally retired from service on August 31, 1980.
We mentioned that she was promoted as an acting District Education officer with effect from July 19, 1976.
The order of promotion contained a super added condition that she would draw her own pay scale which apparently meant that she would continue to draw her salary on her pay scale prior to promotion.
The initial order extending her services recited that she was an acting District Education Officer, but contained a super added condition that her pay would not be more than the maximum of the Principal 's grade.
Grover claims that having been promoted as District Education officer, she was entitled to the pay of a District Education officer and there was no justification for denying the same to her.
A writ petition filed by her was dismissed by the High Court of Punjab and Haryana and she is before us by way of special leave under article 136 of the Constitution.
The counter affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education Officer to Smt.
P. Grover after she was promoted to act as District Education officer.
All that was said in the counter affidavit was that there were no Class I post available and therefore, she was not entitled to be paid the salary of District Education officer.
We are unable to understand the reason given in the counter affidavit.
She was promoted to the post of District Education officer, a Class I post, on an acting basis.
Our attention was not invited to any rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post.
In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the 656 validity of such a rule would be doubtful if it existed), we must hold that Smt.
Grover is entitled to be paid the salary of a District Education officer from the date she was promoted to the post, that is, July 19, 1976, until she retired from service on August 31, 1980.
The appeal is accordingly allowed with costs.
H.L.C. Appeal allowed.

summary/full:
HELD: The counter affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education officer to the appellant after she was promoted to act as District Education Officer.
In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post, the appellant is entitled to be paid the salary of a District Education officer from the date she was promoted to the post.
[655 F G]


judgement:
Civil Appeal No. 6346 of 1983.
Appeal by Special leave from the Judgment and order dated the 18th January, 1980 of the Delhi High Court in L.P.A. No. 62 of 1973.
D.N. Vohra, Anil Kumar Gupta and Miss Kailash Mehta for the Appellant.
S.N. Bhandari and Arunesewar Gupta for the Respondent.
The Order of the Court was delivered by CHINNAPPA REDDY, J. Special leave granted.
Sadhu Ram was a probationer Bus Conductor whose services were terminated on 7th September, 1967 by the respondent, the Delhi Transport Corporation.
On the failure of conciliation proceedings, the Conciliation Officer, Delhi submitted his report to the Delhi Administration under section 12 (5) of the Industrial Disputes Act, whereupon the Delhi Administration referred the following dispute to the Presiding Officer, Labour Court, Delhi for adjudication: "Whether the termination of service, of Shri Sadhu Ram, conductor is illegal and unjustified, and if so what directions are necessary in this respect".
The Union on behalf of the workman and the management appeared before the Presiding Officer, Labour Court.
On behalf of the management, a contention was raised that the workman had not raised any demand with the management and that there was therefore, no industrial dispute.
The reference was accordingly claimed to be incompetent.
The Labour Court overruled the contention, holding as a fact that the Union had raised a valid demand with the management.
On merits, the Labour Court gave the following finding: "I, therefore, hold that the termination order in respect of this workman is illegal and mala fide and that amounts to colourable exercise of power." Consequently, the management was directed to reinstate the workman with effect from 8th September, 1967 with the full back wages and benefits.
The management invoked the jurisdiction of the High Court of Delhi under article 226 of the Constitution questioning the award of the Labour Court.
The High Court went into a learned discussion on what was an Industrial Dispute and what was a jurisdictional fact, a discussion 727 which in our opinion was an entirely unnecessary exercise.
In launching into a discussion on these questions needlessly, the High Court appeared to forget the basic fact that the Labour Court had given two categoric findings: (i) that the Union had raised a demand with the management and (ii) that the termination of the services of the workman was a mala fide and colourable exercise of power.
Delving into the evidence as if it was an appellate Court, and reappreciating the evidence, the High Court thought that one of the documents upon which the Labour Court had relied was a suspicious document; and the High Court went on to find that no demand had been raised and there was no Industrial Dispute which could be properly referred by the Government for adjudication.
On those findings a learned single judge of the High Court quashed the Award of the Presiding Officer of the Labour Court.
The decision of the learned single judge was affirmed by a Division Bench.
The workman has come before us under article 136 of the Constitution.
We are afraid the High Court misdirected itself.
The jurisdiction under article 226 of the Constitution is truly wide but for that very reason, it has to be exercised with great circumspection.
It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals.
That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide.
Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering.
But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management.
There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government.
The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court.
The High Court appeared to think that the decision of this Court in the Sindhu Resettlement Corporation Ltd. vs The Industrial 728 Tribunal of Gujarat(1) justified its conclusion that the failure of the conciliation proceedings and the report of the Conciliation Officer to the Government were not sufficient to sustain a finding that there was an industrial dispute.
This was also what was urged by the learned counsel for the respondents.
The High Court was in error in so thinking.
In Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat(1), the question really was about the precise scope of the reference made by the Government for adjudication.
Throughout it appeared that the only reference that the Government could have made related to the payment of retrenchment compensation which alone was the subject matter of dispute between the parties.
The conciliation which failed had also concerned itself with the question of payment of retrenchment compensation and in their claims before the management, the workmen had requested for payment of retrenchment compensation and raised no dispute regarding reinstatement.
It was in those circumstances that the court held that there was no industrial dispute regarding reinstatement.
We do not see how Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat can be of any assistance to the respondents.
Nor do we think that it was right for the High Court to interfere with the award of a Labour Court under article 226 on a mere technicality.
Article 226 is a device to secure and advance justice and not otherwise.
In the result, we allow the appeal, set aside the judgment of the High Court and restore the award of the Presiding Officer, Labour Court.
H.S.K. Appeal allowed.

summary/full:
The services of the appellant workman were terminated by the Management of the respondent.
On a report from the Conciliation Officer the Government referred the dispute to the Labour Court.
The Management contended that the workman had not raised any demand with the Management and that there was, therefore, no industrial dispute.
The Labour Court found as a fact that the Union had raised a valid demand with the Management and that the termination of services of the workman was illegal and mala fide.
The Management invoked the jurisdiction of the High Court under article 226.
A Single Judge of the High Court quashed the Award of the Labour Court on the finding that no demand had been raised and there was no industrial dispute which could be properly referred by the Government for adjudication.
The judgment of the Single Judge was affirmed by the Division Bench.
Allowing the appeal, ^ HELD: The High Court was not right in interfering with the Award of the Labour Court under article 226 on a mere technicality, [728 E] The jurisdiction under article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection.
It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals.
That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide.
[727 D F] In the instant case there was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government.
The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court.
The High Court 's discussion on what was an industrial dispute and what was a jurisdictional fact was an entirely unnecessary exercise.
[727 G F; 728 A B] Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat, [1968]1 S.C.R. 515, explained and distinguished.


judgement:
Special Leave Petition (Civil) No. 6735 of 1983.
From the Judgment and Order dated the 14th April, 1983 of the Bombay High Court in Notice of Motion No. 859 of 1982 in Appeal No. 295 of 1982.
R. K. Garg, U. R. Lalit, R. V. Mehta and B. P. Maheshwari, with them for the Petitioners.
Dr. Y. section Chitale, Raju Ramchandran and D. C. Singhania for the Respondents.
The order of the Court was delivered by CHINAPPA REDDY, J. Asharam M. Jain sought special leave of this Court under article 136 of the Constitution to appeal against the order of the High Court of Maharashtra in Notice of Motion No. 859 of 1982.
The petition for special leave to appeal ran to 84 pages at the foot of the petition, it was stated "drawn and filed by B. P. Maheshwari & Co., Advocates for the petitioner".
Asharam M. Jain filed an affidavit along with the special leave petition affirming that the statement of facts in paragraphs 1 to 67 in the petition for special leave to appeal were true to his knowledge and belief and based on the record of the lower court.
In several paragraphs of the special leave petition, Asharam M. Jain indulged in wild and vicious diatribe against the then Chief Justice of the High Court of Maharashtra.
To illustrate the limits of the invective, we wish to refer to but one paragraph of the petition, In paragraph 26 of the petition, it was stated by Asharam M. Jain: "The petitioner says that having found that they would no longer be justified in continuing to hear the Notice of Motion and appeal for the several true facts set out in the Transfer Application and the affidavits made by the petitioner and briefly hereinabove set about the learned 721 Chief Justice tried by the said order to harm the petitioner as much as he could and made totally false and wrong observations quite unworthy of the head of the judiciary of the State of Maharashtra, and His Lordship, Mr. Justice Pendse supported the learned Chief Justice The said Order, it is clear, has been made with the sole and dishonest object of causing prejudice in the minds of the Judges of the new Bench against the petitioner and depriving the Judges of the new Bench of their right to independently judicially decide the Notice of Motion on merits, and which is proved by subsequent events.
" When the special leave petition was heard on April 27, 1983 by this Court, the outrageous allegations made against the Chief Justice and the other learned Judge of the High Court of Maharashtra were noticed and two of us (A. P. Sen and E. section Venkataramiah, JJ) made the following order: "The special leave petition is dismissed.
Our attention is drawn to paragraphs 6, 10, 11, 13, 16, 19, 20, 26, 27, 28 30, 31, 34, 38, 39, 42, 50, 57, 60, 62 and grounds 5(v), (x), 7 to 10, (z), (mm), (tt), (uu) of the special leave petition.
The learned Judges have also in the course of the order made reference to the conduct of the petitioner in casting aspersions on the former Chief Justice.
Issue notice for contempt to the petitioner why he should not be committed for contempt under the ".
In answer to the notice issued to Asharam M. Jain, he appeared before the court on July 25, 1983 when the following order was made: "Shri Garg, appears along with the contemner.
He prays for two weeks ' time to file an affidavit and states on instruction that his client is not prepared to withdraw the allegations but wants to make amends.
He is allowed two weeks ' time to file an affidavit.
"Issue notice to the Attorney General for India requesting him to appear ann assist the court in the case.
The Registry shall furnish a copy of the special leave 722 petition and the show cause notice to the learned Attorney General.
"The matter be listed on August 22, 1983.
The contemner shall remain present in the court on that date".
When the matter was taken up for hearing on August 22, 1982, Shri R. K. Garg placed before us an affidavit, said to contain the sincere and unconditional apology of Asharam M. Jain and stated that the contemner was placing himself at the mercy of the court.
He submitted that the court should be so gracious as to accept the unqualified apology tendered by the contemner and refrain from sending the contemner to prison.
He invited our attention to In Re: Shri section Mulgaonkar(1) where Krishna Iyer, J. suggested that `a normative guideline for the judges to observe in this jurisdiction ' was "not to be hypersensitive where distortions and criticism overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude".
There is never any risk of judicial hypersensitivity.
The very nature of the judicial function makes judges sympathetic and responsive.
Their very training blesses them with `insensitivity ', as opposed to hypersensitivity.
Judges are always seeking good reasons to explain wrong conduct.
They know there are always two sides to a coin.
They neither give nor take offence because they deal with persons and situations impersonally, though with understanding.
Judges more than others realise the foibles, the frustrations, the undercurrents and the tensions of litigants and litigation.
But, as elsewhere, lines have to be drawn.
The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges.
It is not that judges need be protected; judges may well take care of themselves.
It is the right and interest of the public in the due administration of justice that has to protected.
We had occasion to point this out in Advocate General Bihar vs M. P. Khair Industries,(2) where we said: "But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses 723 and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice.
The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing.
The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with.
"It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage." "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.
" So we approach the question not from the point of view of the judge whose honour and dignity require to be vindicated, but from the point of view of the public who have entrusted to us the task of due administration of justice.
Having given our utmost consideration, we have come to the conclusion that it is not open to us to accept the easy and ready solution suggested by Mr. R. K. Garg of accepting the apology and imposing a fine.
We think that a contumacious disregard of all decencies, such as, that exhibited by the contemner in this case can only lead to a serious disturbance of the system of administration of justice, unless duly repaired atones by inflicting an appropriate punishment on the contemner which must be to send him to jail to atone for his misconduct and thereafter to come out of prison a chastened but a better citizen.
We accordingly sentence him to suffer simple imprisonment for a period of two months.
Before we part with the case, we must express our sense of shock at a sad revelation made by Shri R. K. Garg during the course of the hearing.
When we expressed our surprise and disgust that the special leave petition should have been drawn and settled by advocates of this Court, he told us that special leave petitions are 724 often filed over the names of counsel, who receive the papers from counsel outside Delhi and file them in the Registry of the Court as if drawn and settled by them, though they may have never even looked into the papers.
This is hardly proper and surely discourteous to the Court.
We hope this is not a common practice.
H.L.C. Petition dismissed.

summary/full:
In a petition for special leave to appeal filed by him, the petitioner indulged in wild and vicious diatribe against the Chief Justice of the High Court who had passed the order sought to be appealed from.
In answer to the notice issued to him under the he prayed for two weeks ' time to file an affidavit (which was granted) and stated that he was not prepared to withdraw the allegations but desired to make amends.
When the matter came up again, his counsel placed before the Court an affidavit said to contain the sincere and unconditional apology of the petitioner and pleaded that the Court should accept it and refrain from sending him to prison.
Council, relying on In re: Shri section Mulgaonkar; , suggested that "a normative guideline for the judges to observe in this jurisdiction" was not to be hypersensitive where distortions and criticism overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude".
Rejecting the plea and sentencing the contemner to suffer simple imprisonment for a period of two months.
^ HELD: There is never any risk of judicial hypersensitivity.
The very nature of the judicial function makes judges sympathetic and responsive.
Judges more than others realise the foibles, the frustrations, the undercurrents and the tensions of litigants and litigation.
But, as elsewhere, lines have to be drawn.
The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges.
It is not that judges need be protected; judges may well take care of themselves.
It is the right and interest of the public in the due administration of justice that has to be protected.
The question has to be approached not from the point of view of the judge whose honour and dignity require to be vindicated, but from the point of view of the public who have entrusted to judges the task of due administration of justice.
A contumacious disregard of all decencies, such as that exhibited by the contemner in this case can only lead to a serious disturbance of the system of administration of justice, unless duly repaired at once by inflicting an appropriate punishment on the 720 contemner which must be to send him to jail to atone for his misconduct and thereafter to come out of prison a chastened but a better citizen.
[722 D G; 723E G] Advocate General of Bihar vs M. P. Khair Industries, ; , referred to.