judgement:
Civil Appeal No. 4379 of 1983.
From the Judgment and order dated the 11th January, 1983 of the Punjab and Haryana High Court at Chandigarh in Election Petition No. 3 of 1982.
S N. Kacker and V Mayakrishan for the Appellant.
A. K. Sen and Rathin Das for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
On May 3, 1983 we made the following order: "Special leave granted.
The appeal is allowed.
The order of the High Court refusing the request of the appellant to examine his 54 witnesses who, according to him, were kept present is varied.
The election petitioner appellant herein shall produce all those witnesses and examine all or any of them whomsoever he wants to examine out of them and in respect of whom, the Court did not grant permission to examine.
The examination shall be taken up day to day.
No Court assistance need be rendered for procuring the presence of all or any of them and the examination shall be completed within a span of 7 days commencing from the date on which the High Court commences examination of witnesses.
Subject to the convenience of the learned Judge and the parties recording of evidence shall be taken up on this side of the summer vacation of the High Court.
In the circumstances of the case, there shall be no order as to costs.
Reasons to follows.
" Here are the reasons.
528 Appellant Shri Mange Ram contested the election to Haryana Legislative Assembly from Jind Legislative Assembly constituency.
14 persons offered themselves as candidates for the election.
One Shri Brij Mohan, 1st respondent was declared elected.
Appellant was defeated.
The remaining candidates lost their deposits.
Appellant called in question the election of the 1st respondent (the returned candidate) by presenting .
an election petition under Sec. 81 of the Representation of People Act 1951 ( ' 1951 Act ' for short).
To this petition, the returned candidate as well as all other candidates who lost the election were impleaded as parties.
In the election petition, charges of corrupt practice and irregularities and illegalities in the conduct of election were made.
The returned candidate contested the petition.
After going through the pleadings of the parties, the Court ascertained the points on which parties were at variance and framed appropriate issues.
The election petition reached the stage of recording evidence.
It appears an application was filed by the appellant election petitioner seeking permission to produce and examine witnesses whose names were set out in the application.
It was averred in the application that the names of the witnesses whom he desires to produce are already mentioned in the appropriate paragraphs of the election petition and that the petitioner would keep the witnesses present.
The learned Judge to whom the election petition was assigned made an order on November 29, 1982 that as and when witnesses are produced, appropriate orders will be passed determining whether the witnesses could or could not be produced.
In the meantime, the evidence of election petitioner was being recorded.
It appears that again on January 11,1983, petitioner submitted a list of witnesses intimating to the Court that he desires to examine them.
This was objected to by the returned candidate.
The learned Judge after hearing the parties made an order upholding the objection raised by the returned candidate that the purpose for which the witnesses were offered is not mentioned in the list and therefore, the election petitioner could not be permitted to examine such witnesses.
A further observation was made by the Court that the election petitioner could not be allowed to examine more witnesses whose names had not been mentioned in the list of witnesses submitted in accordance with the relevant provisions of the Code of Civil Procedure and the rules framed by the High Court.
Accordingly, the learned Judge held that except Bahre son of Sher Singh, no other witness could be examined and that as soon as the evidence of the afore mentioned witness was recorded, 529 the Court would proceed to record the evidence on behalf of the returned candidate; and thereafter the matter will be set down for hearing oral arguments of the learned counsel of either side.
It is this order which was questioned in this appeal by special leave.
An election petition presented under Sec.
81 of the '1951 Act ' must satisfy the requirements of Secs.
83 and 84.
Chapter III in Part IV of the '1951 Act ' lays down the procedure for trial of election petitions.
Sec. 87 which is material for the present purpose reads as under: 87.
Procedure before the High Court (1) Subject to the provisions of this Act and of any rules made thereunder every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits: Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the (1 of 1872), shall, subject to the provisions of this Act be deemed to apply in all respects to the trial of any election petition.
" Order XVI Rule 1 which is relied upon on behalf of the returned candidate reads as under.
"1. List of witnesses and summons to Witnesses (1) on or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
530 (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.
1A, Production of witnesses without summons Subject to the provisions of sub rule (3) of Rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents." Rule 1A was inserted by the Code of Civil Procedure (Amendment) Act, 1956.
Both Rule 1 and 1A have been drastically amended by the Amending Act, 1976 which came into force on February 1, 1977.
Rules 1 and 1A extracted hereinabove are the amended rules in force from February 1, 1977.
At the hearing of the appeal, a statement was made that the Punjab and Haryana High Court has introduced a proviso to subrule (4) of Rule 1 of order XVI.
It reads as under: "Provided that no party who has begun to call his witnesses shall be entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be filed in Court on or before the date on which the hearing of evidence on his behalf commences and before the actual commencement of the hearing of such evidence without any order of the Court made in writing and stating the reasons therefor.
" 531 In exercise of the powers conferred by clauses 27 and 35 of the Letters Patent and Sec. 129 of the Code of Civil Procedure, 1908, the High Court of Punjab and Haryana has framed rules styled as 'Rules of Procedure and Guidance in the matter of trial of Election Petitions under Part VI of the Representation of the People Act, 1951 ' (High Court Rules for short).
Rule 22 of the aforementioned rules is relevant.
It reads as under: "22(1) A party desirous of requiring the attendance of his witnesses at the trial of the petition through the process of the High Court shall, within fifteen days of the settlement of the issues, make an application for the purpose to the Registrar.
The said application shall contain the names of the said witnesses and a gist of the facts to be proved by each one of them.
A copy of the said application shall, also, be delivered by the party or his Advocate to the Advocate for the opposite party or if the same is not represented by an Advocate, to the said party, at the same time it is made to the Registrar.
. ," The neat question of law is: where a party to a proceeding does not wish to have the assistance of the Court for the purpose of procuring the attendance of a witness or witnesses, could he be denied the privilege of examining witnesses kept present by him on the date fixed for recording his evidence, on the sole ground that the names of the witnesses and the gist of evidence have not been set out in the list which may or ought to have been filed in compliance with order XVI Rule 1 of the Code of Civil Procedure ? Sub rule (1) of Rule 1 of order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it t proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
Sub rule (2) requires that the parties seeking the assistance of the Court for procuring the attendence of a witness must make an application stating therein the purpose for which the witness is pro posed to be summoned.
Sub rule (3) confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted in sub rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
Rule 1A in its 532 amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub rule (3) of Rule 1 of order XVI.
If a reference to Rule 22 of the High Court Rules is recalled at this stage, it merely reenacts sub rule (2) of Rule 1 of order XVI.
If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court.
When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law.
If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of order XVI.
The consequence is that where the witness summoned either to give evidence or to produce documents fails to attend or to produce the documents in compliance with such summons, the Court on being satisfied of the service as provided therein and is further satisfied that the person has without lawful excuse failed to honour the summons, the Court may issue is a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed in the manner therein provided.
Simultaneously, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property for such amount as it thinks fit.
Even if thereafter the witness fails to appear, the Court may impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part, thereof, to be attached and sold as provided in Rule 12 of order XVI.
In view of this legal consequence ensuing from the issuance of a summons by the Court and failure to comply with the same, the scheme of Rules 1, 1A of order XVI and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to t examine and procure presence with the assistance of the Court.
There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the presence of a witness, obviously the party can produce such witness on the date of 533 hearing and the Court cannot decline to examine the witness unless the Court proposes to act under the proviso to sub sec.
(1) of Sec. 87 of the '1951 Act ' which enables the Court for reasons to be recorded in writing, to refuse to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
It, therefore, unquestionably transpires that the obligation to supply the list of witnesses within the time prescribed under sub rule (1) of Rule 1 of order XVI is in respect of witnesses to procure whose presence the assistance of the Court is t necessary.
And this ought to be so because the Court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the Court.
This not only explains the necessity of setting out the names of witnesses in the list but also the gist of evidence of each witness.
If mere omission to mention the name of a witness in the list envisaged by sub rule (1) of Rule 1 of order XVI would enable the Court to decline to examine such witness, Rule 1A of order XVI would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub rule (1) and who can be produced without the assistance of the Court.
Viewed from this angle, Rule 1A becomes wholly redundant.
If it is obligatory upon the party to mention the 1 names of all witnesses irrespective of the fact whether some or all of them are to be summoned and even the names of those whom the party desires to produce without the assistance of the Court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1A would have given a clear legislative exposition in that behalf and the marginal note of Rule 1A clearly negatives this suggestion.
Marginal note of Rule 1A reads as 'Production of witnesses without summons ' and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1.
If it was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under R Rule 1.
Rule 1A of order XVI clearly brings to surface the two situations in which the two rules operate.
Where the party wants 534 the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub rule (1) of Rule 1 and make an application as provided by sub rule (2) of Rule 1.
But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.
It was, however.
contended that Rule 1A is subject to sub rule (3) of Rule 1 and therefore, the Court must ascertain how far sub rule (3) would carve out an exception to the enabling provision contained in Rule 1A.
There is no inner contradiction between sub rule (1) of Rule 1 and Rule 1A of Order XVI.
Sub rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwice which ordinarily the court would not extend for procuring the attendance of a witness whose name is not shown in the list.
Therefore, sub rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.
The analysis of the relevant provisions would clearly bring out the underlying scheme under order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme.
The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by sub rule (1).
This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the 535 Court.
But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A.
The only jurisdiction the Court has to decline to examine the witness is the one set out in proviso to Sec. 87 (1) of '1951 Act ', the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings.
Save this the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under sub rule (1) of Rule 1 of order XVI.
This scheme clearly emerges from the various provisions herein discussed.
If the scheme of the various provisions is as herein discussed, obviously, the order of the learned Judge is wholly unsustainable.
He declined to examine the witness by accepting the submission of the returned candidate that the names of the witnesses whom the appellant kept present in the Court were not mentioned in the list.
This is the only ground on which the learned Judge declined to permit the appellant to examine his witnesses who were kept present in the Court and this ground is utterly unsustainable.
Therefore, the order of the learned Judge had to be quashed and was accordingly quashed and the appeal was allowed.
H.L.C. Appeal allowed.

summary/full:
Sub r.
(1) of r. 1 of O. XVI, Code of Civil Procedure, 1908 casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call and to obtain summonses to such persons for their attendance in court; sub r.
(2) requires that the party seeking such assistance from the court must make an application stating the purpose for which the witness is proposed to be summoned; and sub r.
(3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted under sub r.
(1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
Rule 1A of O. XVI enables a party to bring in any witness without applying for summons under r. 1 but this enabling provision is ' subject to sub r.
(3) of r. 1.
Rule 22 of the "Rules of Procedure and Guidance in the matter of trial of Election Petition under Part Vl of the Representation of the People Act, 1951" of the Punjab and Haryana High Court merely re enacts sub rs.
(1) and (2) of r. 1 of o, XVI, C.P.C. Sub section
(1) of section 87 of the Representation of the People Act, 1951 makes O. XVI, c.
applicable to the trial of election petitions and the proviso thereto gives the High Court the discretion to refuse to examine any witness if it is of the opinion that the evidence of such witness is not material or that the party tendering such witness is doing so on frivolous grounds or with a view to delay the proceedings.
The appellant, who was the petitioner in an election petition, had filed an application seeking permission to produce and examine witnesses whose names were set out in the application and the court had passed appropriate orders thereon.
When the court was recording the evidence of the appellant he submitted another list of witnesses whom/he had kept present in the court for being examined, but the court rejected the same for two reasons.
(i) that the appellant had not mentioned their names in the application made by him earlier; and (ii) that there was no mention of the purpose for which they were being offered for examination.
The appellant challenged the validity of the Court 's order.
526 Allowing the appeal, ^ HELD: It is obligatory on the party to a proceeding to file the list of witnesses with the gist of evidence and to make an application for issue of summons as provided in sub rs.
(1) and (2) of r. 1, O. XVI only where the party wants the assistance of the court to procure the presence of witnesses; but where the party is in a position to produce its witnesses without the assistance of the court, it can do so under r. 1A irrespective of the fact whether the names of such witnesses are mentioned in the list or not and the court cannot decline to examine them unless it proposes to act under the proviso to sub section
(1) of section 87 of the Representation of the People Act, 1951.
[531 G H, 532 A] (i) The obligation to file a list of witnesses with the gist of evidence of each witness within the time prescribed under sub r.
(1) of r. 1, O. XVI is in respect of those witnesses to procure whose presence the assistance of the court is necessary.
And, this ought to be so because the court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the court.
If mere omission to mention the name of a witness in the list envisaged by sub r.
(1) of r. 1 would enable the court lo decline to examine such a witness, r. 1A would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub r.
(1) of r. 1 and who can be produced without the assistance of the court.
The marginal note of r 1A reads: "Production of witnesses without summons" and the rule proceeds to enable a party to bring any witness to give evidence or produce documents without applying for summons under r. 1.
If it was implicit in r. 1A that it enables the party to examine only those witnesses whose names are mentioned in the list filed under sub r.
(1) of r. 1 whom the patty would produce before the court without the assistance of the court, it was not necessary to provide in r. 1A that the party may bring any witness without applying for summons under r. 1.
[533 B H] (ii) The contention that r 1A is subject to sub r.
(3) of r. 1 and therefore the court must ascertain how far sub r (3) would carve out an exception to the enabling provision contained in r. 1A cannot be accepted.
Sub r.
(3) of r. 1 and r. 1A operate in two different areas and cater to two different situations.
Sub r.
(3) of r. 1 confers a wider jurisdiction on the court to cater to a situation where the party has failed to name the witness in the list and yet is unable to produce him on its own under r. 1A and seeks the assistance of the court under sub r.
(3) of r. 1 to procure the presenee of the witness.
[534 C E] (ii) Failure to comply with the summons served on a person entails certain consequences in law as provided in r. 10 of O. XVI: the court may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place named therein, or issue a warrant for his arrest with or without bail, or impose a fine on him, or order his property to be attached and sold.
In view of these legal consequences ensuing from the issuance of a summons by the court and failure to comply with the same, the scheme of rs. 1 and 1A of O. XVI and r. 22 of the Rules framed by the High 527 Court envisaged the filing of a List only in respect of witnesses whom the parties desire to examine and procure presence with the assistance of the court.
The advance filling of list is necessary because summoning of witnesses by court is a time consuming process.
[532 D H]


judgement:
Petitions Nos.
1854 60/81,2125, 2224, 2829, 3321, 3341, 3360, 3604, 4486, 3737, 3774, 4128, 4404, 4415, 4428, 4429, 4430, 4431, 4432, 4436, 4437, 6310, 7090 92, 7138, 7687, 9927, 8481 82, 6790 91182, 5356 64/83, 1868, 3929/81, 531 32, 533 534, 3957, 3975, 4574 4583, 8004, 8007 8008 and 8047/83, 5327, 5622 24, 7510 11, 8075/83, 7490 92/82, 2008, 2328/81, 2858, 2859, 4920 4923, 5616, 6065 73, 5818, 5193 5201/82, 8341 8343, 3149 50, 8381 8382, 9927/82, 377 378, 535/83, 8347 8348, 3560/83, 8003, 8005, 8006/83, 8787 8788/83 and 9011 13 of 1983.
Under Article 32 of the Constitution of India WITH Special Leave Petition Nos.
11243 46 of 1983.
From the Judgment and order dated the 8th July, 1983 of the Karanataka High Court in Writ Petition Nos.
11268 to 11271 of li: 1981, For The Appearing Petitioners Shanti Bhushan, Y.S. Chitale, K.K Venugopal KN.
Bhat, V.K Verma, section Ravindra Bhat, N. Ganpathy, C.S. Vaidayanathan, N. Nattar, R.B. Datar, A.V. Rangam, V.G. Gupta, T.V.S.N. Chari A.T.M. Sampath, Vineet Knmar, D.P. Singh, Miss H. Wahi, B.N. Tawakley, section Srivinasan, P.R. Ramashesh, P.N. Ramlingam, S.R. Srivastava and Rathin Das For The Appearing Respondents R.P. Bhatt, V.S. Desai, Harbans Lal, Swaraj Kaushal, M.N., Shroff, G.V. Subba Rao, N.S. Das Bahl and R.N. Poddar The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Prior to 1969 there was no concept of what may be termed as 'An All India ' permit which would be valid 627 for the whole of India and which would enable the holder of the permit to ply his contract carriage throughout India.
Section 63 (1) of the , provides that, except as may be otherwise prescribed, a permit granted by the regional transport authority of any one region shall not be valid in any other region, unless the permit has been counter signed by the regional transport authority of that other region, and a permit granted in any one state shall not be valid in any other state unless counter signed by the State Transport Authority of that other state or by the regional transport authority concerned.
The procedure prescribed for obtaining the counter signature of the transport authorities of other regions and states was cumbersome and was not conducive to the development of all India or inter state tourist traffic.
In order to remedy the situation and promote all India and inter state tourist traffic, the Parliament amended the and introduced sec.
63 (7) by amending Act 56 of 1969.
This new provision enables the State Transport Authority of every state to grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as the Central Government may, in respect of that state specify in that behalf.
Preference is to be given, to applications for permits from the India Tourism Development Corporation, a State Tourism Development Corporation, a State Tourist Department and such operators and tourist cars or such travel agents as may be approved in that behalf by the Central Government.
This was but .
the first basic step towards encouraging all India or inter state tourist traffic.
There were other hurdles to be cleared before any scheme for grant of all India permits could be effectively implemented.
One of the hurdles was this: Under Entry 57 of List II of the Seventh Schedule to the Constitution, the State Legislature is empowered to levy "Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of list III".
Entry 35 of list III reads: "Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied".
A coherent reading of Entry 57 of list II and Entry 35 of list III makes it abundantly clear that the power to levy taxes on vehicles suitable for use on roads vests solely in the State Legislature though it may be open to the Parliament to lay down the principles on which taxes may be levied on mechanically propelled vehicles.
In other words the Parliament may lay down the guide lines for the levy of taxes on mechanically propelled vehicles but the right to levy such taxes vests solely in the 628 State Legislature.
Now there are twenty two States and nine Union Territories in India, specified in the first schedule to the Constitution.
Each of the States has the right, within its territory.
to levy a tax on motor vehicles.
If a tourist vehicle holding an 'All India Permit ' under sec.
63 (7) of the chooses to visit half a dozen states in the course of a round trip from, say, Delhi to .
Kanyakumari or Srinagar to Hyderabad tax will ordinarily have to be paid in all the half a dozen or so States.
The burden will surely be intolerable and the whole object of sec.
63 (7), namely promotion of all India or inter state tourist traffic will be frustrated.
The Central Government was alive to the problem and referred the matter to the Transport Development Council for its advice.
The Transport Development Council is a non statutory body constituted by the Central Government and consists of the representatives of the Governments of all the States.
The Transport Advisory Council advised the Central Government that there should be a single state taxation on tourist vehicles holding permits under sec.
63 (7), that is, tax should be paid in the 'home state ' and the vehicle should be exempted from payment of tax in states other than the home state.
This could be done by the respective State Governments issuing notifications under their taxation legislation exempting tourist vehicles registered in other states from payment of tax, if tax has already been paid in the home state.
The Government of India accepted the E suggestion and requested the State Governments and Union Administrations to issue necessary notifications.
The suggestion ran into trouble right from the start.
While the Governments of Andhra Pradesh, Bihar, Goa, Daman and Diu, Maharashtra, Nagaland and Uttar Pradesh readily agreed to issue such notifications on the basis of reciprocity, there was no such ready response from some other states.
The Government of Karnataka was in particular opposed to the grant of any such exemption.
Finally, the Government of Karnataka and the Governments of other states too were persuaded to agree to issue such notifications.
In the meanwhile the Government of India, in exercise of its power under sec.
63 (7) of the , issued notifications specifying the number and class of tourist vehicles in respect of which each of the State Transport authorities of the States could grant All India permits.
The last of the notifications specified that each State Transport authority could issue 50 permits for tourist omnibuses.
Pursuant to the request of the Central Government to which all the State Governments finally agreed, notifications were issued 629 exempting tourist vehicles holding permits under sec.
63 (7) from payment of tax, if tax had been paid in the home state.
We are particularly concerned in these cases with the notifications issued from time to time by the Government of Karnataka, since that is where the trouble started.
The first of the notifications issued by the Government of Karnataka was on September 18, 1972 and it exempted, from payment of taxes payable under the Karnataka Motor Vehicles Taxation Act 1957, tourist motor Cabs and tourist omnibuses registered in the States other than the State of Karnataka and plying in the State of Karnataka under permits which were valid without counter signature in the state of Karnataka, provided that the tax payable in respect of such vehicles had been paid to the State in which the vehicles were registered and provided further that the said State granted similar exemption to tourist motor cabs and tourist omnibuses whose permits were endorsed in the State of Karnataka under Rule 123 A of the Karnataka Motor Vehicles Rules.
On July IS, 1976, the Government of Karnataka issued a notification reducing the tax payable under the Motor Vehicles Taxation Act, 1957, in respect of tourist vehicles for which permits had been issued under sec.
63 (7) or endorsement granted under Rule 123 A of the Karnataka Motor Vehicles Rules.
On December 20, 1976, a further notification was issued in partial modification of the earlier notification dated September 18, 1972.
Exemption from payment of tax was given to tourist motor cabs and tourist omnibuses registered in States other than the State of Karnataka and plying in the State of Karnataka under the authority of a permit granted under sec.
63 (7), provided that the tax payable in respect of the vehicle to the State in which it was registered had already been paid and provided further that similar exemption from payment of tax was granted in respect of similar vehicles of the State of Karnataka.
This scheme for the grant of 'All India Permits ', designed as it was to promote all India and inter state tourist traffic.
soon fell into abuse at the hands of scheming transport operators.
Within the scheme itself lay the seeds for abuse.
The scheme enabled the State Transport Authority of each State, to issue fifty all India permits, uniformly, irrespective of the size of the State, its resources, its accessibility, its communications, its facilities, the availability of transport services and operators in the State with the necessary expertise, experience and finance to operate all India tourist services and a host of such other factors.
Apparently it was thought undesirable to make a distinction between State and State on what were perhaps thought to be elusive criteria and possibly the scheme 630 was expected to give a boost to the transport business in the smaller and less advanced States.
And, of course, it was necessary to obtain the agreement and cooperation of all the States.
But, the result was that transport operators from, big and comparatively prosperous and advanced States, well versed in the intricacies of the transport business very soon flocked to small and comparatively poor and less advanced States like Manipur and Nagaland to apply for and obtain all India permits from the State Transport Authorities of these States.
It is conceded before us that a large number of persons holding all India permits from some of these small States do not belong to these States at all, but are transport operators coming from far off States.
Another factor which appears to have influenced the flocking of transport operators from other States to States like Nagaland and Manipur is the nationalization of contract carriage service in States like Karnataka.
Once the permits were obtained and the vehicles were registered, these small States saw the last of the operators.
Having obtained the permits, the operators with their vehicles flocked back to the parent State of the operators (not of the vehicles) or to a State like Karnataka where all contract carriages having been nationalized no private contract carriage was available and there was therefore a great opportunity to ply the vehicles as contract carriages within the State.
States like Karnataka were swamped by tourist vehicles from all over the country, registered in other States.
These tourist vehicles practically 'colonised ' Karnataka and like States and started operating more or less as stage carriages within the particular State, never and rarely if ever, moving out of the State.
There was no thought or Question of undertaking all India or interstate tours, and out went the worthy object of sec.
63(7).
Quick and easy money with the least trouble and in the shortest time, by whatever method, was the only object.
In the counter affidavit filed on behalf of the State of Karnataka in some of the Writ Petitions, it is stated.
"Though the vehicles were registered outside the State of Karnataka, they have been permanently stationed in the State of Karnataka and particularly at Bangalore, and the vehicles were all being plied as Stage Carriages.
Though All India Tourist Permits were obtained by the residents of other states, the permits were used by taking the vehicles and keeping them in the State of Karnataka.
The operators run their tourist buses at fixed timings 631 from particular place like the Stage carriages operated by the Karnataka State Road Transport Corporation (hereinafter called the K.S.R.T.C.) and other private state carriage/ operators.
On checking of the vehicles and verification of the passengers, it was found that the passengers found in the vehicle were not genuine tourists and the drivers or the persons incharge of the vehicles were not in a position to produce the trip sheet, name list with whom they entered into contract.
It was also found that the passengers found in the vehicles had boarded the buses from one point without any contract or otherwise and without they being tourists.
The passengers found in the tourist buses are regular passengers going from one place to another for purposes other than tourism.
These vehicles were found catering to the needs of general travellers who can make use of the Stage Carriages operated by the K.S.R.T.C., or other private stage carriage operators.
The respondent produces herewith statements as ANNEXURF.S 1 to 9 showing the clandestine operation of the vehicles covered by All India Tourist Permits, the remarks and irregularities noticed by the Motor Vehicles Inspectors while checking the vehicles covered by All India Tourist permit, the frequent detection of these vehicles running as Stage Carriages by collecting individual fares and picking passengers from one point and setting down them at another point and bringing different passengers in the return journey.
From the statements enclosed, it is clear that the operators of the tourist buses covered by All India Tourist permits have misused the Tourist Buses by running them as regular stage carriages, competing with the KSRTC buses and other private stage carriages within the State.
As a result of indiscriminate misue of the Vehicles as Stage Carriages even though the permits were obtained under Section 63 (7) of the Central Act for Tourism, the State Government has suffered considerable loss in Revenue.
These buses actually made use of the passengers which would have normally gone to the KSRTC buses and other private carriages.
The very object of obtaining permits under section 63(7) of the Central Act, which intended to promote tourism has been misued by these operators of the Tourists buses by plying their vehicles regularly as stage carriages.
Most of the 632 permits obtained under Section 63 (7) of the Central Act in the States other than the State of Karnataka are made use of for the purported use of running the tourist buses but actually the permits were misused to run the tourist vehicle either as stage carriages or as contract carriages".
A survey made by the Transport Commissioner of Maharashtra revealed a similar state of affairs.
The Transport Commissioner submitted a report to the Government of Maharashtra, a copy of which has been made available to us.
It is stated in the report, "Our estimate is that out of these 1300 permits anything between 300 to 400 buses are operating in Maharashtra with Bombay as the main centre.
Most of these buses for all practical purposes operate as stage carriage services masquerading as contract carriages.
In Maharashtra the ordinary passenger transport by stage carriages and contract carriages has been completely nationalised.
The All India Tourist Buses on the other hand are exploiting the loopholes available in the law and operate point to point passenger services on routes where the volume of traffic is heavy viz. routes like Bombay Kolhapur, Bombay Mangalore (Mangalore), Bombay Panaji, Bombay Belgaum, Bombay Ahmedabad and Bombay Indore . . . . . . . . . . . . . . . ".
"On 9/10th April 1983, the Transport Commissioner had personally visited the Charoti Check Naka which is our border check post bordering Gujarat on the Bombay Ahmedabad road.
From the records of the check post he found that as many as 115 All India Tourist Buses are regularly playing on this route.
After making an analysis of these 115 All India Tourist Buses, ' he found that 41 permits had been issued by the State Transport Authority of Manipur.
17 had been issued by State Transport Authority Nagar Haveli, 8 by the State Transport Authority, Meghalaya and 5 by the State Transport Authority Nagaland.
A large number of All India Tourist Buses operating with their base in Bombay appear to have been issued by Manipur Nagaland and the Union Territory of Dadra Nagar Haveli".
633 The petitioners, who are transport operators holding all India permits, deny that any of them was guilty of any malpractice or misuse of the permits held by them.
But, notwithstanding the petitioners ' denial we do not have the slightest doubt that the allegations of misuse and malpractice made in the counter affidavit, filed on behalf of the Karnataka Government, are generally and substantially correct.
Complaints about the abuse of the scheme appear to have been made to the Central Government and the Transport Advisory Council also.
We are also told that the question of meeting the challenge posed by these abuses is receiving the attention of the Central Government.
The Government of Karnataka, apparently the worst sufferer, reacted sharply.
The concession given to the holders of all India permits by way of exempting the all India tourist Vehicles, registered in other States, from payment of the Karnataka Tax, if tax had already been paid in the home State was withdrawn by a notification dated 31st March, 81.
It is this notification and the consequences of the notification that are in question in these several Writ Petitions.
We are informed that the State of Andhra Pradesh has also issued a notification similar to that of the State of Karnataka withdrawing the exemption which it had granted earlier to vehicles operating on permits issued under sec.
63 (7) and registered in other States.
Other states have not withdrawn the exemption previously granted by them to vehicles registered in other states and operating on permits issued under sec.
63(7).
But as the exemption granted by most of them is on a reciprocal basis, the withdrawal of exemption by the States of Karnataka and Andhra Pradesh has the effect of making vehicles registered in Karnataka and Andhra Pradesh, immediately subject to payment of tax in every one of those States through which they pass.
The collection of tax by the other States is also resisted in these writ petitions.
The power of the State Legislature to levy the particular tax, the power of the State Government to grant exemption from payment of tax under the authority delegated to it by the Legislature and the implied power of the State Government to withdraw an exemption granted by it are conceded.
Yet a number of ingenious and platitudinous submissions have been though we must confess that many of them have only to be stated to be rejected.
Some of them served no better purpose than occupy the time of the Court, time which has become dear and precious because of the mountainous arrears of cases awaiting the decision of this Court.
We do wish it is remembered that the Supreme Court is the highest Court in the land and its time is not to be frittered away in 634 listening to hopeless arguments advanced just for the sake of argument.
The time has come for judges and lawyers to make a determined effort to chop certain arguments and prone certain others judgments following suit.
In fairness to the counsel who appeared in the cases before us, we must say that everyone was brief and none over stated his case.
It was submitted that see.
63 (7) of the was designed to promote All India and inter state tourist traffic and thus to advance trade, Commerce and inter course throughout the territory of India.
It was implicit in sec.
63 (7) that the States would exercise their power of taxation in such a way as not to impose an additional burden on tourist Vehicles registered in other states and plying on permits issued under sec.
63(7), over and above the tax paid in the home State.
In other words, it was implicit that all the States would exempt from taxation tourist vehicles registered in other States and plying on permits issued under sec.
67 (7) was withdrawing the exemption, the object of sec.
63 (7) was defeated and therefore, freedom of trade, Commerce and inter course throughout the territory of India, guaranteed by article 301 of the Constitution was impaired.
The withdrawal of exemption was, therefore, unconstitutional and bad in law.
The transport operators of Karnataka who were not directly hit by the withdrawal of the exemption by the Government of Karnataka advanced a subtler argument and suggested that they were in fact the worst hit.
The argument was that though despite the withdrawal of the exemption, they were paying no more tax to the State of Karnataka than they were paying hitherto, the withdrawal of the exemption had created a situation which denied them the benefit of exemption granted by the Governments of all others States, since those exemptions were reciprocal in condition.
The situation indirectly created by the action of the Government of Karnataka imposed an intolerable burden on them by compelling them to pay taxes in every State other than Karnataka through which their vehicles passed and thus virtually denied to them the freedom of trade, Commerce and inter course throughout the territory of India guaranteed by article 301 of the Constitution.
We are wholly unable to see any force in these submissions, The learned counsel for the parties on either side invited our atten 635 tion to the Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors Bolani Ores Ltd. vs State of Orissa(2), G.K. Krishnan vs State of Tamil Nadu(9) International Tourist Corporation vs State of Haryana(4) and Malwa Bus Service Pvt. Ltd. vs State of Punjab(5) to explain the extent and the limits of the freedom of trade, commerce and intercourse throughout the territory of India proclaimed by article 301 of the Constitution.
We do not propose to refer to any of these cases since the law appears to us to be well settled: Taxes of a compensatory and regulatory character are outside the expanse of article 301 of the Constitution.
Regulatory measures and compensatory taxes far from impeding the free flow of trade and commerce, often promote such free flow of trade and commerce by creating agreeable conditions and providing appropriate services.
All that is necessary to uphold a tax which purports to be or is claimed to be a compensatory tax is "the existence of a specific, identifiable object behind the levy and a nexus between subject and the object of a levy".
( ') "If the object behind the levy is identifiable and if there is sufficient nexus between the subject and the object of the levy, it is not necessary that the money realised by the levy should be put into a separate fund or that the levy should be proportionate to the expenditure.
There can be no bar to an inter mingling of the revenue realised from regulatory and compensatory taxes and from the taxes of a general nature nor can there be any objection to more or less expenditure being incurred on the object behind the compensatory and regulatory levy than the realisation from the levy".(6) It should be patent that "it would ordinarily be well nigh impossible to identify and measure with any exactitude the benefits received and the expenditure incurred and levy the tax according to the benefits received and the expenditure incurred".
Nor is the court to interpose itself by assuming the role of a cost accountant and attempt to balance meticulously the cost of the services, benefits and facilities against the realisation from the levy.
And, if the levy as a whole is justified by the need generally, it does not have to be separately justified with reference to every group of persons claiming 636 to require and receive less service than others.
Once the nexus between the levy and service is seen, the levy must be upheld unless the compensatory character is shown to be wholly or partly, a mere mockery and in truth a design which is destructive of the freedom of inter state trade, commerce and inter course.
By virtue of the power given to them by Entries 56 and 57 of List II every one of the States has the right to make its own legislation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating within the territory of the State.
Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, are therefore, not within the vista of article 301, unless, as we said, the tax is a mere pretext designed to injure the freedom of interstate trade, commerce and intercourse.
The nexus between the levy and the service is so patent in the case of such taxes that we need say no more about it.
The Karnataka Motor Vehicles Taxation Act and the Motor Vehicles Taxation Acts of other States are without doubt regulatory and compensatory legislations outside the range of article 301 of the Constitution.
It is true that the object of enacting sec.
63 (7) by the Parliament was to promote all India and inter state tourist traffic.
But 'taxes on vehicles . suitable for use on roads ' is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy.
True again, Entry 57 of the State List is subject to Entry 35 of the Concurrent List and, as explained by us at the outset, it is therefore open to the Parliament to lay down the 17 principles on which taxes may be levied on mechanically propelled vehicles.
But the Parliament while enacting section 63 (7) of the refrained from indicating any such principles, either expressly or by necessary implication.
The State 's power to tax and to exempt was left uninhibited.
It may be that a a State legislation, plenary or subordinate, which exempts "non home state tourist vehicles" from tax would be advancing the object of sec.
63 (7) of the and accelerating inter state trade, commerce and intercourse.
But merely by Parliament legislating sec.
63 (7), the State Legislatures are not obliged to fall in line and to so arrange their tax laws as to advance the object of sec.
63 (7), be it ever so desirable.
The State is obliged neither to grant an exemption nor to perpetuate an exemption once granted.
There is no question of impairing the freedom under article 301 by refusing to 637 exempt or by withdrawing an exemption.
Not to pat on the back is not to stab in the back.
True, straw by straw, the burden of taxation on tourist vehicles increases as each State adds its bit of straw, but, then, each State is concerned with its coffers and has the right to tax vehicles using its roads; and, the contribution which a tourist carriage is required to make to its treasury is no more than what other contract carriages are required to make.
We are firmly of the view that there is no impairment of the freedom under article 301.
The special submission on behalf of the 'Karnataka operators ' that the withdrawal by the Karnataka Government of the exemption granted to 'outsiders ' has resulted in the Karnataka operators having to pay tax in every State in the country and, therefore, the withdrawal has impaired the freedom under article 301 is but the same general sub mission, seen through glasses of a different tint.
It does not even have the merit that the withdrawal of the Karnataka exemption affects them directly.
The submission is rejected.
One of the submissions made to us was that if there was a misuse of the all India permits, the remedy was to punish the wrong doers by taking appropriate action against the wrong doers by cancelling the permit, if necessary, but not to withdraw the benefit of the exemption altogether, even in the case of honest operators.
That is a matter for the Legislature and its delegate to decide but not for the court.
If the situation had become so malignant that drastic action was called for, it is not for the court to substitute its judgment to say that the object could perhaps be well achieved by adopting a less drastic procedure.
It was submitted that all India tourist vehicles do not use the roads of the State as much as the contract carriages operating in the State and therefore, the State was wrong in treating them alike.
It was said that treatment of unequals as equals had resulted in an infringement of article 14 of the Constitution.
It was also submitted that vehicles holding inter State permits under inter state agreements were still exempt from tax and this was also a violation of article 14 of the Constitution.
Another contention raised was that there was some sort of promissory estoppel which prevented the State Government from withdrawing the exemption.
Yet another argument was that the withdrawal of the exemption was arbitrary and therefore, judicial review was necessary.
These and other like submissions which were made to us in our opinion, fall in the category of arguments which.
638 we mentioned earlier, have only to be stated to be rejected.
The answers are self evident.
, The submissions are totally without merit and we see no justification for increasing the length of our judgment by further futile discussion.
All the Writ petitions are dismissed with costs and the interim orders are vacated.
H.S.K. Petitions dismissed.

dataset_name: IN-Abs

summary/full:
In order to promote all India and inter state tourist traffic, the Parliament amended the by introducing in it sec.
63(7) which enabled the State Transport Authority of every State to grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as may be specified by the Central Government.
Later the Central Government notified that each State Transport Authority could issue 50 all India permits for tourist omnibuses.
As each State had the right, within its territory, to levy a tax on a motor vehicle, it was found that unless tourist vehicles with all India permits were exempted from tax by other States than their home state the object of sec.
63(7) would be frustrated.
Therefore, the Central Government made a request in this behalf to all the State Governments.
In pursuance of that request the Government of Karnataka exempted tourist vehicles holding permits under sec.
63(7) from payment of tax, provided the tax payable to the State in which the vehicle was registered had already been paid and provided further that similar exemption from payment of tax was granted in respect of similar vehicles to the State of Karnataka.
Many transport operators from big and comparatively prosperous States flocked to some small and comparatively poor and less advanced States and after getting all India permits from them started plying their vehicles in other States like Karnataka and Maharashtra more or less as regular stage carriages.
Having found that the transport operators were misusing the all India permits and indulging in certain malpractices, the Government of Karnataka withdrew the exemption from payment of tax granted earlier.
The petitioners, who were transport operators holding all India permits, challenged the withdrawal cf exemption as unconstitutional and bad in law.
The petitioners submitted that sec.
63(7) of the was designed to promote all India and inter state tourist traffic and thus to advance trade, 625 commerce and inter course throughout the territory .
Of India.
By withdrawing the exemption, the object of sec.
63(7) was defeated and therefore, freedom of trade.
Commerce and inter course throughout the territory of India, guaranteed by article 301 of the Constitution was impaired.
Dismissing the petitions, ^ HELD: By withdrawing the exemption there is no impairment of the freedom under article 301.
[637 B] Taxes of a compensatory and regulatory character are outside the expanse of article 301 of the Constitution.
Regulatory measures and compensatory taxes far from impeding the free flow of trade and commerce, often promote such free flow of trade and commerce by creating agreeable conditions and providing appropriate services.
All that is necessary to uphold a tax which purports to be or is claimed to be a compensatory tax is, the existence of a specific, identifiable object behind the levy and a nexus between subject and the object of a levy.
Once the nexus between the levy and service is seen, the levy must be upheld unless the compensatory character is shown to be wholly or partly a mere mockery and in truth a design which is destructive of the freedom of inter state trade, commerce and inter course.
[635 C D, 636 A] International Tourist Corporation vs State of Haryana, ; referred to.
By virtue of the power given to them by Entries 56 or 57 of List II every one of the States has the right to make its own legislation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating within the territory of the State.
Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, are therefore, not within the vista of article 301, unless the tax is a mere pretext designed to injure the freedom of inter state trade, commerce and inter course.
The nexus between the levy and the service is so patent in the case of such taxes that one need say no more about it.
The Karnataka Motor Vehicles Taxation Act and the Motor Vehicles Taxation Acts of other States are without doubt regulatory and compensatory legislation outside the range of article 301 of the Constitution.
[635 B D] `Taxes on vehicles . suitable for use on roads ' is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy.
Entry 57 of the State List is subject to Entry 35 of the Concurrent List and, it is therefore open to the Parliament to lay down the principles on which taxes may be levied on mechanically propelled vehicles.
But the Parliament while enacting sec.
63(7) of the refrained from indicating any such principles, either expressly or by necessary implication.
The State 's power to tax and to exempt was left uninhibited.
It may be that a State Legislation, plenary or subordinate, which exempts "non home state tourist vehicles" from tax would be advancing the object of sec.
63(71, but 626 the State Legislature are not obliged to fall in line line and to so arrange their tax laws as to advance the object of sec.
63(7), be it ever so desirable.
The State is obliged neither to grant an exemption nor to perpetuate an exemption once granted.
There is no question of impairing the freedom under article 301 by refusing to exempt or by withdrawing an exemption.
[636 E 637 A]


judgement:
Reference No. 1 of 1983.
(Reference under Article 317(1) of the Constitution of India) G. L. Sanghi, section K. Mehta, P. N. Puri and M. K. Dua for Chairman, Punjab Service Commission.
J. Sorabjee, Bhagwant Singh, Advocate General Punjab, section K. Bagga for the State of Punjab.
F. section Nariman, Anil B. Divan, Girish Chandra and Mrs. Sarla Chandra for Gopal Krishan Saini (Defaulting Member) K. Parasaran, Attorney General, Miss A. Subhashini for Union of India.
The order of the Court was delivered by CHANDRACHUD, C.J.: This is the first Reference of its kind made by the President of India to this Court under Article 317(1) of the Constitution.
That Article reads thus: "317.
Removal and suspension of a member of a Public Service Commission.
Subject to the provisions of clause (3) the Chairman or any other person of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under 642 Article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.
" Clause (3) of Article 317, which confers power on the President to remove the Chairman or any other member of a Public Service Commission for reasons mentioned in sub clauses (a), (b) and (c), is not relevant for our purpose.
Not only is this Reference the first of its kind but the facts which have been referred to us for our consideration and report are, shockingly, the first of their kind.
We hope they will be the last of their kind.
The order of Reference recites those facts as follows: "On 24.11.1982 at about 1300 hours Shri Gopal Krishan Saini, Member, Punjab Public Service Commission, physically assaulted Smt.
Santosh Chowdhary, Chairman, Punjab Public Service Commission inasmuch as he slapped her on the face in the presence of three other Members of the Punjab Public Service Commission, namely, S/Shri H. section Deol, M. section Brar and W.G. Lall and thereby committed gross misbehaviour.
" In exercise of the power conferred by Article 317(1) of the Constitution, the President has referred for consideration of this Court the question "as to whether Shri Gopal Krishan Saini, Member of the Punjab Public Service Commission, ought, on the ground of misbehaviour, to be removed from the office of the Member of the Commission.
" We issued notice of the Reference to the five members of the Commission, including the Chairperson Smt.
Santosh Chowdhary and Shri Gopal Krishan Saini who is alleged to have assaulted her.
All of them have filed their affidavits in these proceedings.
Certain other persons who claim to have knowledge of the incident or of its alleged background have also filed their affidavits.
Amongst them are: Dr. Vinod Gupta, Ujagar Singh, Avtar Singh, Hakam Singh and Dr. Rasewat.
An affidavit has also been filed by Shri Saini 's wife, the purport of which is that Shri Saini has been involved in this false incident since the Chief Minister of Punjab, Shri Darbara Singh, was not happy with his appointment as a Member of the 643 Punjab Public Service Commission.
It is also alleged that the Chairperson 's husband was running classes for training students for the Public Service Commission Examinations, that he wanted certain students of his to be favoured in those examinations and that on the failure of Shri Saini to oblige him, his wife, the Chairperson, has involved Shri Saini into a false charge.
The Chief Minister of Punjab has filed an affidavit denying the allegations made against him.
In pursuance of the notices issued by this Court, the Attorney General of India and the Advocate General of Punjab appeared in these proceedings.
Shri Nariman, who appears on behalf of Shri Saini whose conduct we are called upon to inquire into, contended that before making this Reference, the President should have obtained the opinion of a fact finding body for his prima facie satisfaction that a case was made out for obtaining a report from this Court on the question of the alleged misbehaviour of Shri Saini.
According to counsel, this Court cannot, through the medium of a Reference, be called upon to discharge functions which ordinarily fall within the jurisdiction of a trial Court, civil or criminal.
The danger of such a procedure is said to be that if we hold that the incident is proved, Shri Saini will automatically be held guilty by a criminal Court of the charge of assault and he will have to suffer a decree for damages in a civil court.
Counsel says that under Article 317(1), the limited function of this Court is or ought to be to determine whether the facts found upon by an independent fact finding body show that the person concerned is guilty of misconduct and, secondly, whether the misconduct is of such a nature as to require his removal from the office of Member of the Public Service Commission.
We are unable to accept these submissions.
The power of the President to make a reference to this Court under Article 317(1) is not subject to the condition precedent that he must first have the facts examined by some other body or authority.
That Article provides that the Chairman or any other member of a Public Service Commission can only be removed from his office on the ground of misbehaviour after the Supreme Court on a Reference made to it by the President reports that the Chairman or such other person ought to be removed on any such ground.
There is no justification for reading into the Article a provision which is plainly not to be 644 found in it, especially a provision in the nature of a condition precedent.
Besides, the documents annexed to the Reference and indeed the fact that those documents are so annexed would show that the President was satisfied prima facie that the allegations made against the Member of the Public Service Commission require to be inquired into by us.
Annexed to the order of Reference are a reply of Shri Saini to the allegations made against him and the statements of the three Members of the Commission, Shri H. section Deol, Shri M. section Brar and Shri W. G. Lall.
These four statements are Annexures II, III, III A and III B respectively to the Reference.
It is on the basis of this material that the President has made the Reference.
The material is of a kind and nature enough to justify the President 's opinion that a prima facie case exists for an inquiry and report by this Court.
In these circumstances, obtaining a preliminary opinion of yet another body would be needless duplication of work and avoidable waste of public time and money.
The argument that in a reference under article 317(1) this Court ought not to embark upon an examination of facts and that its function is limited to determining whether the person concerned is guilty of misbehaviour and whether the misbehaviour is of such a nature as to justify his removal is in direct opposition to the plain words of article 317(1).
That article provides that, subject to the provisions of clause (3), (i) the Chairman or any other member of a Public service Commission can be removed from his office only by the order of the President on the ground of misbehaviour and (ii) the order of removal can be passed after the Supreme Court has on inquiry reported to the President that the Chairman or the member of a Public Service Commission is guilty of misbehaviour and ought to be removed from his office on that ground.
The inquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the charge of misbehaviour is made out and whether the misbehaviour is of such a nature as to warrant the removal of the person from his office.
The inquiry contemplated by the article is into the facts themselves and facts also so as to enable this Court to pronounce upon the question whether the allegations made against the Chairman or member are proved at all.
The purpose of article 317(1) is to ensure the independence of members of the Public Service Commissions and to give them protection in the matter of their tenure.
The Judges of the Supreme Court can be removed from their office only in accordance with the procedure prescribed by article 124 (4) which is made applicable to 645 the Judges of High Courts, the Comptroller and Auditor General of India and the Chief Election Commissioner by articles 218, 148 and 324 (5) respectively.
Members of Public Service Commissions are, in one sense, given a higher degree of protection by the elimination, as far as possible, of political pressures in the matter of their removal.
Any allegation of misbehaviour made against them has to be examined by the Supreme Court on merits unlike the allegations made against those others whose removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament.
It is impossible to accept that the Supreme Court in one case and the Parliament in the case of those others are entrusted by the Constitution with the limited power of determining whether the facts found by some other body establish misbehaviour in one case and misbehaviour or incapacity in those others.
Their function is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity, as the case may be.
The apprehension expressed by the learned counsel that the finding recorded by this Court will automatically decide the fate of a prosecution or of a civil suit for damages is real but, that is as it ought to be.
No grievance can legitimately be made that an examination and assessment of facts is made by this Court instead of being made by a Magistrate or a Munsif.
If a full opportunity is given to the parties to prove and rebut the facts in issue as in a regular trial.
it is an idle complaint that the evidence has been examined and found upon by the Supreme Court and not by a court of first instance.
If, after giving a full opportunity to both the sides, the Supreme Court comes to the conclusion that the facts alleged are established, the conviction or a decree for damages may follow as a matter of course.
But then, a contrary finding by this Court will equally seal the fate of those proceedings.
There is, therefore, no unfair advantage to either side if the questions of fact are decided by this Court straightway.
If the essential safeguards of a fair adjudication are observed, no grievance can be made that the facts which establish the charge of misbehaviour are found by the highest Court of the land and not by the lowest.
The question which then arises before us is as regards the procedure which this Court should adopt in a Reference made by the President under Article 317 (1) of the Constitution.
That Article provides that an inquiry has to be held by this Court in accordance 646 with the procedure prescribed in that behalf under Article 145.
Article 145 provides, to the extent material, that subject to the provisions of any law made by Parliament, the Supreme Court may, from time to time, with the approval of the President, make rules for regulating the practice and procedure of the Court.
Sub clause (j) of Article 145 (1) confers power on this Court to make rules for regulating inquiries under Article 317 (1).
Order XXXVIII of the Supreme Court Rules, 1966 contains rules regulating references under Article 317 (1).
Rule 1 of Order XXXVIII mentions the persons to whom notice of the reference is required to be given.
Rule 2, which is in point, provides that "the Court may summon such witnesses as it considers necessary." This rule shows that while making an inquiry into the matter referred to it by the President, this Court is entitled to summon witnesses, which obviously is for the purpose of recording their evidence.
In other words, while dealing with a reference under Article 317(1).
this Court has the power to summon witnesses and record their evidence.
A procedural issue which was debated before us is whether we should pronounce our opinion on the allegations made against Shri Saini on the basis of the affidavits only or whether we should permit the parties to cross examine persons who have filed their affidavits.
Considering the nature and gravity of the matter referred to us, we are of the opinion that it will not be conducive to justice to decide the Reference on a consideration of the affidavits only.
We do not know at this stage whether the allegation made by Shri Saini that he has been falsely involved into the particular incident by reason of certain other matters and at the instance of certain other persons, is true or not.
But those allegations cannot be adjudicated upon on a consideration of the affidavits only.
The credibility of witnesses who depose to facts is a matter which bears directly on the adjudication of those facts.
And the best method of testing whether a witness is a person of credit is to subject him (or her) to cross examination.
The credit of a witness can be shaken (and, ironically, sometimes established) by cross examining him and indeed, section 146(3) of the Evidence Act specifically permits the cross examination of a witness in order "to shake his credit by injuring his character".
Bearing in mind the impact of our findings on a future trial, civil or criminal, relating to the question referred to us, the repercussions of our findings on the parties concerned and the fact that the matter referred to us is one of public importance which transcends the immediate private interests of the parties who have made allegations and counter allegations against one another, we are of the view that 647 parties whose interests are directly affected by these proceedings, that is to say the Chairperson Smt.
Santosh Chowdhary and Shri Gopal Krishan Saini ought to be permitted to cross examine opposing witnesses who have filed their affidavits.
There was a sharp difference between the rival views submitted before us as to the nature and scope of the evidence which we should allow the parties to lead.
It was contended by Shri Sorabjee who appears for the Government of Punjab and by Shri G.L. Sanghi who appears for the Chairperson that evidence should be allowed to be led only on the question whether the incident of slapping took place as alleged and not on any other matter.
It was urged by these learned counsel that we are only concerned to determine whether Shri Saini slapped the Chairperson and not with the events antecedent to the assault or which are said to furnish the motive for the alleged false implication of Shri Saini.
On the other hand, it was contended by Shri Nariman that the case of his client is that he has been falsely implicated into the charge of assault because he had incurred the wrath of the Chief Minister of Punjab and the hostility of the Chairperson 's husband and that, it would be impossible for him to prove his case unless he is allowed to cross examine witnesses on those aspects of the matter.
Counsel contends that if he could satisfy us that there was a conspiracy to involve his client falsely or that there were reasons for so involving him, we will be loathe to hold that the alleged incident is proved.
Shri Nariman 's submission must be accepted in the circumstances of the case.
It will be impossible to consider in isolation the evidence bearing directly on the incident which is alleged to have taken place on November 22, 1982.
The entire evidence, admissible and relevant, shall have to be taken into account for the purpose of deciding whether the allegation against Shri Saini can be held to be proved.
We are not pronouncing at a stage upon the admissibility or relevance of any particular piece of evidence, which shall have to be done after the entire evidence is before us.
All that we do now is to say that we cannot prevent Shri Saini, against whom a grave charge has been made, from proving that the charge is false and motivated.
One of the questions which is bound to arise in this matter, as it arises in matters of similar nature, is as to why the complainant should make a false allegation that she was slapped, courting trouble and involving her own status and respectability.
The answer to that question has to be furnished by the person who is called upon to meet the allegation that he slapped her.
Answers on questions of fact cannot be made in courts 648 of law in a vacuum.
There has to be evidence to justify those answers.
Therefore, it is only fair that an opportunity should be given to Shri Saini to prove his case that the charge against him is false, inspired and motivated.
We only hope that this opportunity will not be exploited by Shri Saini to fight a political battle, against the Chief Minister or to engage in a duel with the Chairperson 's husband.
In the ultimate analysis, after the dust raised by these accusations and counter accusations has settled down, the fundamental question which this Court will have to answer is: Did Shri Saini slap the Chairperson or not ? She says he did.
He says he did not.
And on the contrary, according to him, it is she who raised her hand to beat him when he tried to ward off the blow.
He says that this occasion was exploited by interested parties to involve him in a false charge, out of personal malice and hostility.
Both the accuser and the accused must have an equal opportunity to prove their respective cases.
It must also be remembered that Article 317 was enacted in order to give protection to the members of the Public Service Commissions in regard to their removal from office and not as a disability.
Having seen that witnesses shall have to be summoned and allowed to be cross examined by the opposite party the next question which we have to decide is whether we should have the evidence recorded in our presence or whether we can and should appoint some responsible delegate for doing so.
Order XXXVIII, Rule 2 of the Supreme Court Rules, 1966 provided that this Court may summon such witnesses as it considers necessary.
This provision confers the requisite power on this Court to summon and examine witnesses, but nothing contained therein can be read to mean that after deciding which witnesses should be summoned and examined, evidence must be recorded by this Court itself.
Order XLVII, Rule 6 of the same Rules provides that nothing contained in the Rules "shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
This provision, like its counterpart in statutes like the Code of Civil Procedure (Section 151) or the Code of Criminal Procedure (Section 482), does not create or confer any new power but preserves the power of the Court to act ex debito justiciae.
Though a provision like Rule 6 of Order XLVII of the Supreme Court Rules is not specifically incorporated in Order XXXVIII of those Rules, it, shall have to be read in the latter Order in order to enable this Court to pass proper orders in the interest of 649 justice.
Considering the overwhelming commitments of this Court for the time being (and in the foreseeable future), it is regretfully inexpedient that the evidence should be recorded by this Court itself.
No useful purpose will be served by expending our own time in recording the evidence of various witnesses except for the advantage of seeing and hearing the witnesses.
The balance of convenience requires that we should forego that advantage and delegate the duty of recording evidence.
Accordingly, we direct that evidence in this Reference will be recorded by a learned Additional District and Sessions Judge, Delhi, who will be nominated by the learned District and Sessions Judge,Delhi.
The nomination may be made before August 22,1983.
We cannot confer any power on the learned Judge so nominated for recording evidence, to decide on the admissibility or relevance of any particular piece of evidence.
The learned Judge will, therefore, record the evidence which the parties lead before him, within the constraints of the following guidelines: (1) The affidavits filed in this Court will be treated as the examination in chief of the respective witnesses.
(2) The evidence to be recorded by the learned Judge will be limited to the cross examination of witnesses who have filed affidavits before us.
In other words, no person who has not filed an affidavit in this Court will be examined or cross examined as a witness, except with the leave of this Court.
(3) Witnesses who have filed affidavits in this Court may be summoned or requested by the learned Judge to attend his Court for the purpose of cross examination.
The proceedings will normally be held in Delhi.
Evidence may, however, be recorded at any other place if the learned Judge considers it necessary or convenient.
The mere fact that the evidence of any particular witness is recorded by the learned Judge will not conclude the issue as regards the admissibility or relevance of that evidence.
All questions regarding admissibility and relevance of the evidence so recorded will be decided by this Court during the hearing of the Reference.
We hope that all parties concerned will take care to avoid putting frivolous or scandalous questions to witnesses and will afford 650 the necessary co operation to the learned Judge for an expeditious termination of the proceedings before him.
The parties shall appear before the learned Additional District and Sessions Judge nominated by the learned District and Sessions Judge, Delhi, on Monday, September 5, 1983, at 11.00 a.m., for obtaining further directions in the matter.
The recording of evidence will commence on Monday, September 12, 1983 and shall proceed from day to day until the entire evidence is over.
We expect that the recording of evidence will be over by September 30, 1983.
In case it is not over by that date, the learned Judge may write to the Registrar of the Supreme Court for extension of time.
The evidence will be transmitted to the Registrar (Judicial) of this Court immediately after the entire evidence is recorded.

summary/full:
The Chairperson of the Punjab Public Service Commission made a complaint to the President of India alleging that a certain member of the Commission had committed gross misbehaviour towards her by slapping her on her face in the presence of three other members of the Commission.
In exercise of the power conferred by Article 317(1) of the Constitution, the President had referred for consideration of this Court the question whether on the ground of gross misbehaviour the member ought to be removed from the office of Member of the Public Service Commission.
Certain persons who claimed to have knowledge of the incident filed their affidavits.
The Member 's wife, who had also filed an affidavit, alleged that the then Chief Minister was not happy with her husband 's appointment as a member of the Commission, that the Chairperson 's husband, who was running classes for training students for the Public Service Commission examinations, wanted certain students of his to be favoured in these examinations and that when her husband refused to accede to the request he was falsely implicated in this incident.
It was contended on behalf of the Member that before making the reference the President (1) ought to have referred the case to a fact finding body to ascertain whether a prima facie case had been made out for obtaining the report of this Court on the question of alleged misbehaviour and (2) the function of this Court is limited to determining whether the person concerned was guilty of misconduct of such a nature as would require his removal from the office OF Member of the Public Service Commission.
^ HELD: on the facts of this case, obtaining a preliminary opinion of yet another body would be needless duplication of work and avoidable waste of public time and money.
The power of the President to make a reference to this Court under Article 317(1) is not subject to the condition precedent that he must first have the facts examined by some other body or authority.
There is no justification for reading into the Article a provision which is not to be found in it, especially a provision in the nature of a condition precedent.
The material before the President was of a kind and nature enough to justify his opinion that a prima facie case existed for an enquiry and report by this Court.
[643 G H, 644A, C D] 640 (2) The enquiry which this Court is required to hold is not into the limited question whether the charge of misbehaviour was made out and whether the misbehaviour was of such a nature as to warrant his removal from office but is an enquiry into the facts themselves and facts also so as to enable this Court to pronounce whether the allegations levelled against the Chairman or Member were proved at all.
The purpose of this Article is to ensure independence of the members and to give protection in the matter of their tenure.
Certain dignitaries of the State like Judges of this Court and High Courts, the Comptroller and Auditor General and the Chief Election Com missioner can be removed from their offices only in accordance with tho procedure prescribed in the relevant provisions of the Constitution.
In the case of Members of the Public Service Commission a higher degree of protection is given by the elimination of political pressures in the matter of their removal.
While in the case of these dignitaries removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament, any allegation of misbehaviour made against members of the Public Service Commission has to be examined by this Court on merits.
It is impossible to accept that this Court in one case and the Parliament in the case of others are entrusted by the Constitution with the limited power of determining whether the facts found by some other body establish misbehaviour in one case and misbehaviour or incapacity in those others.
Their function is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity as the case may be.
[644 F H, 645 A D] (3) Their would be no unfair advantage to either side if the questions of fact are decided by this court straightaway.
So long as the essential safe guards of a fair adjudication are observed no grievance can be made that the facts which establish the charge are found by the highest court and not by the lowest.
[645 F G] (4) (a) As regards procedure, order XXXVlll rule (2) provides that while making an enquiry into the matter referred to it by the President, this court has power to summon witnesses and record their evidence.
But having regard to the nature and gravity of the matter, it would not be conducive to justice to decide the reference on a consideration of affidavits only, because it would not be known at this stage whether the allegation that the member was falsely implicated in the incident is true or not.
Those allegations cannot be adjudicated upon on a consideration of the affidavits only.
Having regard to the important nature of the question, the parties whose interests are affected should be permitted to cross examine the opposing witnesses.
Again keeping in view the grave nature of the allegations and counter allegations it will be impossible to consider in isolation the evidence bearing directly on the alleged incident of slapping but the entire evidence would have to be taken into account for deciding whether the allegations against the member can be held to be proved.
Therefore it is only fair that an opportunity should be given to the member to prove that the charge against him was false, inspired and motivated.
[646E H] (b) order XXXVIII, Rule 2 of the Supreme Court Rules confers power on this Court to summon and examine witnesses but it does not enjoin that 641 the evidence must be recorded by this court itself.
Although a provision like Order XLVII, Rule 6 which preserves the power of the court to act ex debito justiciae is not incorporated in order XXXVIII, it has to be read in the latter Order to enable this Court to pass proper orders in the interest of justice.
[648 E H] Considering the overwhelming commitments of this Court, the Court delegated the duty of recording evidence to the District Judge with a direction that he should record evidence treating the affidavits filed in this Court as examination in chief of the respective witnesses and (2) that the evidence recorded should be limited to cross examination only of witnesses who had filed affidavits before this Court.
[649 A B]


judgement:
N: Criminal Appeal No. 386 of 1983.
From the Judgment and order dated the 23rd June, 1981 of the High Court of Bombay in Crl.
Appeal No. 1138 and 1144 of 1980.
section N. Jha, Amicus Curiae for the Appellant.
M. N. Shroff for the Respondent.
The order of the Court was delivered by CHINNAPPA REDDY, J. Special Leave granted.
The appeal of the accused to the High Court was 'dismissed ', summarily with the one word 'dismissed ', placing this Court in a most embarrassing position in dealing with the special leave petition under article 136 of the Constitution.
Such summary rejection of appeals by the High Court has been disapproved by this Court more than thirty years ago in Mushtaq Hussain vs State of Bombay(13 and thereafter, over the year;, in a series of cases from the same High Court: Ramayya vs State of Bombay( '), Vishwanath Shankar Beldar vs State of Mahatashtra(3), Siddanna Appa Rao vs State of Maharashtra(4).
Narayan Nathu Naik vs State of Maharashtra(5), Govinda kadutji Kadam vs State of Maharashtra(6), Shaik Mohamed Ali vs State of Maharashtra(7), K. K. Jain vs State of Maharashtra(8), Jeewan 653 Prakash vs State of Maharashtra(l), Mushtaq Ahmed v State of Maharashtra(2), Krishna Vithu Suroshe vs State of Maharashtra(3), Sampata Tatyada Shinde vs State of Maharashtra(4), Dagadu vs State of Maharashtra(s).
We are pained, and not a little perturbed, that despite the long series of judgments all arising from cases from the same High Court, the High Court has not chosen to correct itself and continues in the error of its ways.
Except in certain cases when an accused person has pleaded guilty and in petty cases, every person convicted of an offence has a right of appeal under the Criminal Procedure Code.
An appeal may be both against conviction and sentence and on facts and law.
A convicted person is entitled to ask an appellate Court to reappraise the evidence and come to its own conclusion.
An appellate Court has the undoubted power to dismiss an appeal in limine.
Section 384 of the Criminal Procedure Code provides for it.
But, it is a power which must be exercised sparingly and with great circumspection.
One would think a conviction for murder and a sentence of imprisonment for life, as in the case before us, were serious enough matters for the High Court to warrant b 'admission ' of the appeal and fair and independent consideration of the evidence by the High Court.
Summary rejection of the appeal with the laconic expression 'dismissed ' seems to be a drastic step in such cases.
To so reject an appeal is to practically deny the right of appeal.
We cannot also over emphasis the importance of the High Court making a speaking order when dismissing a Criminal Appeal in limine.
"The requirement of recording reasons for summary dismissal, however concise, serves to ensure proper functioning of the judicial process".
There must be some indication that the High Court addressed itself to the questions at issue and had the record before it.
In the present case there.
is not even an indication whether the record had been called for and whether it was before the Court.
We have little option but to set aside the order of the High Court.
The High Court may now 'admit ' the appeal and deal with it according to law.

summary/full:
The petitioner was convicted for the offence u/s 302 I.P.C. and sentenced to life imprisonment by the Sessions Judge.
The appeal preferred by him was dismissed by the High Court of Bombay in limine.
Hence the appeal by Special leave.
Allowing the petition and directing the High Court to admit the appeal and deal with it according to law, the court ^ HELD: An appellate Court has the undoubted power to dismiss an appeal in limine, as provided under section 384 of the Code of Criminal Procedure.
But, it is a power which must be exercised sparingly and with great circumspection, more so in a case where the conviction is for murder and the sentence is one of imprisonment for life, which are serious enough matters for the High Court to warrant admission of the appeal and fair and independent consideration of the evidence by the High Court.
Summary rejection of the appeal with the laconic expression, "dismissed" is a drastic step in such cases.[653 C E] To so reject an appeal is to practically deny the right of appeal.
Except in certain cases when an accused person has pleaded guilty and in petty cases every person convicted of an offence has a right of appeal under the Code; an appeal may be both against conviction and on facts and law.
A convicted person is entitled to ask an appellate Court to reappraise the evidence and come to its own conclusion.
Therefore, it is necessary to make a speaking order, while dismissing a criminal appeal.
[653 E F] Mustaq Hussain vs State of Bombay, [ ; ; Ramayya vs State of Bombay, ; ; Vishwanath Shankar Beldar vs State of Maharashtra, ; Siddanna Appa Rao vs State of Maharashtra A.I.R. 1970 S C. 977; Narayan Nathu Naik vs State of Maharashtra, A.l.
R. ; Govinda Kadutji Kadam vs State of Maharashtra, ; Shaik Mohamed Ali vs State of Maharastra, A.I.R. 1973 S.C. 43; 652 K.K. Jain vs State of Maharashtra, A.l.
R. ; Jeewan Prakash vs State of Maharashtra, A.I.R. 1973 S.C. 278; Mustaq Ahmed vs State of Maharashtra, A.I.R. 1973 S.C. 1122; Krishna Vithu Suroshe vs State of Maharashtra, A.I.R. ; Sampata Tatyada Shinde vs State of Maharashtra, A.I.R. 1974 S.C. 791; and Dagadu vs State of Maharashtra, ; reiterated.