judgement:
Writ Petition (Crl.) No. 359 of 1988.
(Under Article 32 of the Constitution of India. ) R.K. Jain, R.K. Khanna and A.S. Pundir for the Petitioner.
Yogeshwar Prasad, Mrs. Rachna Gupta, Mrs. Rachna Joshi, Dalveer Bhandari, Ms. C.K. Sucharita and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This petition under Article 32 of the Constitution of India has been filed by the petitioner to seek the issue of appropriate writs for quashing an order of detention passed against 261 him under Section 3(2) of. the (here inafter the 'Act ') by the State of Uttar Pradesh and for his release from custody.
On April 5, 1988 an order of detention was passed against the petitioner under Section 3(2) of the Act but the petitioner could not be served the order of detention and taken into preventive custody as he was ab sconding.
Consequently he was treated an absconder and resort was had to Section 7(2) of the Act and a proclamation was obtained against him under Sections 82 and 83 of the Criminal Procedure Code on May 4, 1988 and the said order was executed on May 4, 1988.
Thereafter the petitioner surrendered himself in Court on July 4, 1988 and he was sent to the District Jail at Meerut where he was served the detention order and the grounds of detention on July 5, 1988.
In the grounds of detention three grounds were set out for the detention of the petitioner and they read as fol lows: 1.
On 8.7.87 at about 9.30 P.M. in the night at Kasba Sardhana, Police Station Sard hana (Meerut) you alongwith your other compan ions went to the garden of Lala Om Prakash Jain which is in the possession of Yusuf S/o Ismail on contract.
You said to Yusuf etc.
who were present there that they do not pay the (CHAUTH) fee for GUNDAGARDI of the Mango, therefore, you using abusive language said "Kill the Salas, so they may vanish for ever and you people with an intention to kill Yusuf etc.
assaulted them.
On the information of Shri Yusuf a case has been registered against you as Crime No. 211 under Sections 307, 323 I.P.C., which is under consideration of the Court.
Due to your aforesaid misdeed terror in Sardhana and in District Meerut terrorism has spread and in this way you have acted in such manner which is against the Maintenance of Public Law and order situation.
On 11 2 88 at about 11.00 A.M. in the day at the Binauli Road in Kasba and Police Station Sardhana you alongwith your companion Vinay Kumar went to the Shop of Shri Ashok Kumar and you threatened Shri Ashok Kumar that he should pay Rs. 10,000 (Ten thousand) by tomorrow or day after tomorrow otherwise he will be killed.
On the basis of information of Shri Ashok Kumar Crime No. 48 under Section 506 I.P.C. has been diarised which is under consideration.
Due to your aforesaid indecent terror in Kasba Sardhana and in the District of Meerut terrorism has prevailed and in this way you have acted in such manner which is against the maintenance of the Public Law and Order situation.
262 3.
On 3.3.88 in the Kasba of Sardhana, Police Station Sardhana, District Meerut, you taking a Revolver in your hand in the market of Sardhana said to the Shopkeepers that who so ever will not pay money (CHAUTH), he cannot open the shop in the market, due to which the shops were closed in the market.
H.C. Khajan Singh with the help of other employ ees when tried to arrest you then you ran away on the Motor Cycle alongwith your companion while firing in the air.
Information to this effect has been got diarised by HC.
Khajan Singh at Police Station in G.D. No. 14 at 10~10 hours and investigation to this effect has been done by the Inves tigation Inspector Shri R.C. Verma and on investigation the aforesaid incidents were found correct and entry to this effect has been carried out at G.D. No. 33.
By your afore said indecent activity in Sardhana and in District Meerut terrorism has prevailed and in this way you have acted in such manner which is against the provisions of Maintenance of Public law and Order situation.
The grounds of detention also set out the following: (1) The petitioner if he so desires could make repre sentation under Section 8 of the Act to the Home Secretary, Ministry of Home, State Government through the Superintend ent of Jail at the earliest possible; (2) That the papers relating to the petitioner 's detention would be submitted under Section 10 of the Act to the Advisory Board within three weeks from the date of detention and that if the representation is received late it would not be considered by the Advisory Board; (3) That if the petitioner so desired he could also make representation to the Government of India by addressing the representation to the Secretary, Government of India, Ministry of Home (Internal Security Department), North Block, New Delhi through the Superintendent of the Jail, and (4) That if under the provisions of Section 11(1) the petitioner desired to have a personal hearing by the Adviso ry Board he should specifically make mention of it in his representation or he should inform the State Government of his desire through the Jail Superintendent.
263 It is common ground that the petitioner made a represen tation to the Government against his detention and the order passed therefore.
Therein he had set out that he wished to have the services of a friend at the time of the meeting of the Advisory Board to make representations on his behalf.
The representation was received by the District Magistrate, Meerut on July 15, 1988.
After receipt of the comments of the SSP, Meerut the representation along with the comments of the District Magistrate were sent to the State Government on July 21, 1988.
Even prior to it the copies of the repre sentation were forwarded to the State Government and the Advisory Board on July 19, 1988.
The representation was considered and rejected by the State Government on July 28, 1988 and the petitioner was informed of the same through the Jail Superintendent, Meerut.
The meeting of the Advisory Board to consider the case of the petitioner was fixed on August 2, 1988 and a Radio gram was sent by the State Government to the District Magis trate and the Superintendent District Jail, Meerut informing the date of the meeting of the Advisory Board.
The Radio gram further set out as follows: "Board further directs that either District Magistrate or Superintendent of Police to appear before the Board on the date of hearing with.all relevant records and on request of the detenu his best friend (non advocate) may also be allowed to appear with him." A copy of the Radio gram was sent to the Jail Superintendent and it was shown to the petitioner and his acknowledgement was obtained.
The Adviso ry Board considered the written and oral representations of the petitioner and gave a report that there was sufficient cause for the detention of the petitioner.
The State Govern ment accepted the report of the Advisory Board and passed a further order on August 17/18, 1988 confirming the detention of the petitioner.
Thereafter the petitioner has come for ward with this petition under Article 32 of the Constitu tion.
In his petition, the petitioner has raised several grounds to assail his detention, one of them being the non furnishing of the investigation report of Shri R.C. Verma, Inspector of Police who had verified the truth and correct ness of the report of HC 1057 Khajan Singh about the inci dent which took place on March 3, 1988.
However, during the hearing of the writ petition no arguments were advanced in respect of this ground of objection.
Mr. Jain, learned counsel for the petitioner assailed the order of detention on the following grounds: 264 (1) All the three grounds set out in the grounds of detention even if true, are not incidents which would affect the maintenance of public order and at best they can be con strued only as offences committed against individuals or incidents which are likely to affect the law and order situation.
(2) The third ground is a concocted incident in order to give credibility to the detention order by making it appear that the petitioner was indulging in anti social acts which affected the maintenance of public order.
(3) The petitioner was denied opportu nity to have the assistance of a friend when he appeared before the Advisory Board on August 2, 1988.
Besides these contentions Mr. Jain also raised a fourth contention that under Section 3(5) of the Act the State Government is enjoined to send a report within seven days to the Centre Government, of the detention of any detenu under the Act together with the grounds on which the order had been made and on receipt of such a report the Central Gov ernment is bound to consider the matter and either approve the detention or revoke the same in exercise of its powers under Section 14 of the Act.
In this case there was no material to show that the Central Government had performed its duty under the Act.
Since this contention was not raised in the petition and since the Central Government had not been impleaded a party respondent, the petitioner 's counsel filed a petition and sought leave of Court for raising an additional ground and for impleading the Central Government as a party respondent.
These prayers were acceded and on notice being issued to the Central Government, the Central Government made its repre sentation through counsel.
The contentions of the petitioner in his petition have been refuted by the respondents in their counter affidavits, one by the second respondent, District Magistrate, Meerut and the other filed by Shri P.N. Tripathi, Upper Division Assistant, Confidential Section 8 of U.P. (Civil), Secre tariat, Lucknow on behalf of the first respondent, the State of U.P.
We will now examine the merits of the contentions of the petitioner in seriatum.
The first contention is that the three grounds 265 mentioned in the grounds of detention could by no stretch of imagination be construed as acts which would affect the maintenance of public order or the even tempo of life of the community.
Mr. Jain, learned counsel for the petitioner referred to Gulab Mehra vs State of U.P., [1987] IV SCC 302 and urged that the first ground of detention in that case also pertained to the detenu therein threatening to shoot the shopkeepers of Khalasi Line locality if they failed to give money to him and the shopkeepers becoming terror stricken and closing their shops.
This Court had construed the ground as only affecting law and order and not the maintenance of public order.
Mr. Jain argued that grounds 1 and 2 were threats meted out to individual persons regarding which criminal cases have been registered and the 3rd ground was identical to the one noticed by this Court in Gulab Mehra 's case.
Consequently, it was argued that we should also hold, as was done in Gulab Mehra 's case that the grounds set out against the petitioner would at best affect only the law and order situation and would not pose a threat to the maintenance of public order.
We have given the matter our careful consideration but we find ourselves unable to agree with the contention of Mr. Jain.
In ground No. 1, the petitioner had gone with his associates and threatened one Yusuf, the contractor of a mango grove that fees for goonda gardi (Chauth) should be paid to him and the petitioner and his associates assaulted Yusuf saying that they will "Kill the salas".
On Yusuf reporting the matter to the police a case was registered under Sections 307 & 323 I.P.C. against the petitioner and his associates.
The demand for chauth from the contractor and the attack launched on him would show that it was not a case of singling out a particular contractor for payment of chauth but a demand expected to be complied with by all owners or contractors of mango groves in the locality.
In such circumstances the demand made and the attack launched would undoubtedly cause fear and panic in the minds of all the owners and contractors of mango groves in that area and this would have affected the even tempo of life of the community.
Similarly, the second ground pertains to the petitioner going to the shop of one Ashok Kumar and making a demand of Rs. 10,000 and threatening him that unless the money was paid on the following day or the day after the shopkeeper would be killed.
The shopkeeper had reported the matter to the police authorities and a case has been registered against the petitioner u/s 506 I.P.C.
This incident must also be viewed in the same manner in which the first incident has been construed.
It is not as if the demand and the threat following it were made against Ashok Kumar in an insolated manner.
On the other hand, the demand had been made as part of a scheme to extort money from all the shopkeepers under a threat that their continuance of business and even 266 their lives would be in danger if chauth was not paid.
The demand made on Ashok Kumar would have certainly made all the shopkeepers in that locality feel apprehensive that they too would be forced to make payments to the petitioner and that otherwise they would not be allowed to run their shops.
It so far as the 3rd incident is concerned, it is seen that the petitioner had taken a revolver with him and threatened all the shopkeepers in the market of Sardhana that if anyone failed to pay "chauth" he would not be al lowed to open his shop and he would have to face the conse quences.
On account of this threat the shop owners downed the shutters of their shops and at that point of time H.C. Khajan Singh happened to reach the market.
Seeing what was happening H.C. Khajan Singh attempted to apprehend the petitioner but he managed to escape on his motor cycle after firing several shots in the air with his revolver.
H.C. Khajan Singh had at once returned to the station and made an entry in the general diary about this incident.
This incident cannot be considered as merely causing disturbance to the law and order situation but must be viewed as one affecting the even tempo of fife in the mar ket.
The shopkeepers had closed their shops and they as well as the public in the market area would have felt terrified when they saw the petitioner moving with a revolver and demanding 'chauth ' payment by the shopkeepers.
Whether an act would amount to a breach of law and order or a breach of public order has been considered by this Court in a number of decisions and we may only refer to some of them viz.
Dr. Ram Manohar Lohia vs State of Bihar, ; ; Arun Ghosh vs State of West Bengal, ; Nagendra Nath Mondlal vs State of West Bengal, ; and Nandlal Roy vs State of West Bengal, In Gulab Mehra 's case (supra) after noticing all these decisions, it was set out as follows: "Thus from these observations it is evident that an act whether amounts to a breach of law and order or a breach of public order solely depends on its extent and reach to the socie ty.
If the act is restricted to particular individuals or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large and/or the even tempo of the community then it becomes a breach of the public order.
" 267 In State of U.P. vs Hari Shankar Tewari, ; referring to S.K. Kedar vs State of West Bengal, and Ashok Kumar vs Delhi Administration, it was held as follows: "Conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order.
One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle.
Thus whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potenti ality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order.
" Viewed in this perspective, it cannot be said that the demands made and threats given by the petitioner to the contractors and shopkeepers as mentioned in the grounds would have its reach only to the limited extent of affecting the law and order situation and not go so far as to affect the maintenance of public order.
We are therefore, unable to sustain the first contention urged on behalf of the peti tioner.
Learned counsel for the petitioner then contended that no credence should be given to the last mentioned ground because the names of the shopkeepers who had closed their shops out of fear for the petitioner or the names of the witnesses to the incident have not been set out in the grounds.
It was further contended that the 3rd incident has been concocted in order to give a colour of credibility to the detention order.
The counsel argued that in the report made by Inspector R.C. Verma for an order of detention being passed against the petitioner, a number of instances were given but in spite of it the police authorities felt diffi dent about the adequacy of the materials and had therefore concocted the third incident given as ground No. 3.
We do not find any merit in this contention because the records go to show that H.C. Khajan Singh had promptly reported the incident at the police station and the truth of his report had been verified by Inspector R.C. Verma.
268 It is not therefore possible to accept the contention that the 3rd incident referred to in the grounds of detention is a concocted affair.
In Gulab Mehra 's case upon which reliance was placed by Mr. Jain, we find that the facts therein were quite differ ent.
The first ground of detention in that case pertained to the detenu demanding money from the shopkeepers of Khalasi Line but no shopkeeper had come forward to complain about the detenu and only a picket employed at the police station had made a report.
The second ground related to the detenu lobbing a comb at a police party when it tried to effect his arrest.
It was in those circumstances, this Court deemed it appropriate to quash the order of detention.
In the present case, it may be seen that specific reports had been given by Yusuf and Ashok Kumar about the incidents forming grounds 1 and 2 and cases had been registered against the petitioner.
In so far as the 3rd ground is concerned, H.C. Khajan Singh was himself a witness to the threats given by the petitioner to the shopkeepers with a revolver in his hand and the firing of the revolver by the detenu while leaving the place.
The report of H.C. Khajan Singh has been verified by Inspector R.C. Verma and found to be true.
It is thus seen that the facts in the two cases have no similarity whatever.
On the other hand the observation in State of U.P. vs Karnal Kishore Saini, ; at 213 would be of relevance in this case.
It was held in that case that if firing is made in a public street during the day time, the incident would undoubtedly.
affect public order as its reach and impact would disturb public tranquility and it would affect the even tempo of the life of the people in the locality concerned.
Therefore the decision in Gulab Mehra 's case (supra) cannot be of any avail to the petitioner.
In so far as the 3rd contention is concerned, it was urged that in spite of the petitioner having specifically asked for the assistance of a friend at the time he was heard by the Advisory Board, he was denied opportunity to have such assistance.
The petitioner has averred in his petition as follows: "The petitioner orally as well as in writing requested the Chairman of the Advisory Board to allow him to engage a counsel or atleast a person who is acquainted with the law to represent him before the Advisory Board, as the petitioner was illiterate and was not capable of representing his case before the Advisory Board.
Unfortunately, the Advisory Board rejected the request of petitioner and did not allow him to engage a legal counsel or atleast a person 269 who is acquainted with the provisions of the and forced the petition er to appear before the Advisory Board without any defence helper.
This part of the act of the members of the Advisory Board is illegal, unconstitutional and violative of Articles 14, 19, 21 and 22 of the Constitution of India.
" In the counter affidavit of the District Magistrate, this allegation has been refuted as follows: "Averments made in para No. 2 are wrong and denied.
The petitioner was detained on 5.7.88 in Distt.
Jail, Meerut and his detention is absolutely legal and constitutional.
It is wrong to say that the petitioner was not provided an opportunity by the Advisory Board to defend himself.
On the contrary, he was heard by the Advisory Board on 2.8.89 and the detaining authority had no objection to his case being represented by a person who is not an advocate.
The fact that his request was rejected by the Advisory Board is not in the notice of detaining authority.
As per the Tele.
dated 26.7.88 of the Home Deptt.
of Government of U.P., Lucknow, the petitioner was allowed to appear before the Advisory Board through non advocate next friend.
A copy of the said message is annexed hereto and marked as annexure R I.
However the petitioner 's assertion that he is illiterate is wrong because he knows English and has submitted detailed representation.
According to information available, petitioner is an Intermediate.
The ratio of the decision in A.K. Royal vs U.O.I., (reported in AIR 1982 SC 709) has not been contravened in any manner in the instant case.
" In the counter affidavit on behalf of the State of U .P. it has been stated as follows: "But it is evident from the record that the Advisory Board had directed the State Govt.
through its letter dated 2 Ist July, 1988 that since the petitioner Shri Sharad Tyagi had requested to appear alongwith his next friend, he may be informed to attend the Board 's meeting alongwith his next friend (non advo cate) on the date of hearing.
The State Gov ernment complied with the instructions of the Advisory 270 Board and had sent the necessary directions to the District Authorities through its radiogram message dated 26 July, 1988, a copy of which is annexed hereto and marked as Annexure R I".
Besides the specific averment made in the counter affi davit, Shri Yogeshwar Dayal, learned counsel for the State of U.P. also drew our attention to the radiogram sent by the Government to the District Magistrate wherein it has been clearly stated that "on request of detenu his next friend (non advocate) may also be allowed to appear with him." Mr. Yogeshwar Dayal also made available to us the file contain ing the original records relating to the detention of the petitioner.
We find from the records that the radiogram had been served on the petitioner through the Superintendent of the Meerut District Jail.
The petitioner has affixed his signature in English therein and also written the word "date" but he has not filled up the date.
(It is stated in the counter affidavit that the petitioner is not an illiter ate but has studied upto Intermediate).
This would falsify the averment in the rejoinder affidavit filed by the peti tioner 's wife Smt.
Shobha Tyagi "that the copy of the tele gram annexed to the counter affidavit of the respondent No. 2 was not served upon the detenu; the detenu was never informed that he was entitled to be represented by a friend who is not an advocate." Mr. Jain 's contention was that even if the radiogram had been shown to the petitioner, it must have been done belatedly and there would not have been time for the petitioner to contract anyone and make arrangements for a non advocate friend appearing alongwith him at the meeting of the Advisory Board.
We are unable to countenance this argument because of several factors.
In the first place, the petitioner has not raised such a plea in his petition.
His specific contention was that he had requested the Chairman of the Advisory Board in writing as well as orally to permit him to have the services of a counsel or a person acquainted with the law to represent his case before the Advisory Board but the Advisory Board rejected his request.
It was not therefore his case that he was shown the radiogram belatedly and he did not have time to make ar rangements for anyone to appear alongwith him before the Advisory Board.
Another circumstance which militates the contention of Mr. Jain is that there is no material to show that the petitioner had orally represented to the Chairman of the Advisory Board that he wanted the services of a friend and that he had been shown the radiogram very late.
The respondents have filed a copy of the letter sent by the Additional Registrar of the High Court to confirm that the Advisory Board had accorded permission to the petitioner to appear before the Board 271 alongwith a non advocate friend but in spite of it no one appeared along with the petitioner on the date of hearing, and hence no mention was made in the report of the Advisory Board about the non appearance of a friend on behalf of the petitioner.
Mr. Jain argued that in a number of decisions commencing from A.K. Roy vs Union of India, ; 1 it has been consistently held that even though a detenu will not be entitled to have legal assistance, he does have a right to have the assistance of a friend at the time his case is considered by the Advisory Board and hence denial of opportunity to have the assistance of a friend would vitiate the detention.
This principle is undoubtedly a well stated one.
It has however to be noticed that though the Advisory Board had permitted the detenu to appear alongwith a friend the detenu had failed to take a friend with him.
He did not also represent to the Advisory Board that he did not have adequate time to get the services of a friend and that he required time to have the services of a friend.
Such being the case, he cannot take advantage of his own lapses and raise a contention that the detention order is illegal because he was not represented by a friend at the meeting of the Advisory Board.
This position is a settled one and we may only refer to the observation of this Court in Vijay Kumar vs Union of India, AIR '1988 SC 934 at 939: "It appears from the observation made by the High Court that the appellant, without making any prayer before the Advisory Board for the examination of his witnesses or for giving him assistance of his friend, started arguing his own case, which in all probability, had given an impression to the members of the Advisory Board that the appellant would not examine any witness.
The appellant should have made a spe cific prayer before the Advisory Board that he would examine witnesses, who were standing outside.
The appellant, however, did not make any such request to the Advisory Board.
There is no reason for not accepting the statement of the detaining authority that the appellant was permitted by the Advisory Board to have the assistance of an advocate or friend at the time of hearing, but the appellant did not avail himself of the same.
In the circum stances, we do not think that there is any substance in the contention made on behalf of the appellant that the Advisory Board acted illegally and in violation of the principles of natural justice in not examining the wit nesses produced by the appellant at the meet ing of the Advisory Board and in not giving permission to the appellant to have the as sistance of his friend.
" 272 From the materials on record, we are satisfied that the appellant was accorded permission to have the services of a friend and the radiogram sent by the Government was duly communicated to him but for some reason he had not availed the services of a friend.
He did not also choose to repre sent to the Advisory Board that he was not given sufficient time to secure the services of a friend.
Consequently, the third contention also fails.
We are only left with the fourth and last contention.
No grievance was made in the petition that the Central Govern ment had not considered the petitioner 's case when the State Government sent a report under Section 3(5) of the Act and the non application of mind by the Central Government viti ates the detention of the petitioner.
This ground of objec tion was raised only during the arguments and consequently the Central Government was permitted to be impleaded as a party respondent.
Learned counsel appearing for the Central Government has stated that the Central Government had infact considered the report sent by the State Government and saw no reason to revoke the order in exercise of its powers upon Section 14.
There is no reason to doubt the correctness of this statement.
One other argument advanced before us was that even though the order of detention had been passed on April 5, 1988, no steps were taken to take the petitioner into custo dy till he surrendered himself in Court on July 4, 1988.
This contention is on the face of it devoid of merit because it has been specifically stated in the counter affidavits that the petitioner was absconding and hence proclamations were made under Sections 82 and 83 Cr.
P.C. and it was only thereafter the petitioner had surrendered himself in Court.
It is not therefore a case where the petitioner was freely moving about but no arrest was effected because his being at large was not considered a hazard to the maintenance of public order.
In the result we do not find any ground for quashing the order of detention passed against the petitioner.
The writ petition is accordingly dismissed.
N.V.K. Petition dismissed.

summary/full:
On April 5, 1988 an order of detention was passed against the petitioner in the writ petition under section 3(2) of the .
He could not be served with this order and taken into preventive custody as he was abscond ing.
He was treated as an absconder and resort was had to section 7(2) of the Act.
A proclamation was obtained against him under Sections 82 and 83 of the Criminal Procedure Code 1973 and was executed on May 5, 1988.
He surrendered thereafter in Court on July 4, 1988 and was sent to the District Jail where he was served the detention order and the grounds of detention on July 5, 1988.
In the grounds of detention three incidents were enumer ated indicating that the petitioner had acted in a manner which was against the maintenance of public law and order situation.
The incidents were: (1) On July 8, 1987 the petitioner had gone along with his associates and threatened the contractor of a mango garden that fees for goondagardi (Chauth) should be paid to him and assaulted the contractor.
The matter was reported to the police who registered a case under Sections 301 and 323 I.P.C. (2) On February 11, 1988 the petitioner threatened a shopkeeper that he should pay Rs. 10,000 immediately falling which he would killed.
The shopkeeper reported the matter to the police who had 258 registered a case under section 506 I.P.C. (3) On March 3, 1988 the petitioner taking a Revolver in his hand moved in the market area and, threatened the shop keepers if they do not pay 'Chauth ' they could not open their shops.
On account of this threat the entire market was closed.
The grounds of detention also informed the petitioner that he could make a representation under section 3 of the Act and that the matter would be submitted under section 10 to the Advisory Board, and that he could make any representation for the consideration of the Board.
The meeting of the Advisory Board was fixed on August 2, 1988.
The Board considered the written and oral representa tions of the petitioner and gave a report that there was sufficient cause for the detention of the petitioner.
The State Government accepted the report of the Advisory Board and passed a further order on August 17/18, 1988 confirming the detention of the petitioner.
In the writ petition to this Court the detention order was assailed on the following grounds: (1) The three grounds set out in the grounds of deten tion are not incidents which would affect the maintenance of public order or the even tempo of the life of the community.
(2) the third incident has been concocted in order to give credibility to the detention order.
(3) The petitioner was denied the opportunity to have the assistance of a friend when he appeared before the Advisory Board, and (4) That the Central Government had not considered the petitioner 's case when the State Government sent a report under section 3(5) of the Act and the nonapplication of mind by the Central Government vitiates the detention of the petitioner.
Dismissing the writ petition, HELD: 1 .(a) The demand for chauth from the contractor and the attack launched on him would show that it was not a case of singling out a particular contractor for payment of chauth but a demand expected to be complied with by all owners or contractors of mango groves in the locality.
In such circumstances the demand made and the attack launched would undoubtedly cause fear and panic in the minds of all the owners and contractors of mango groves in that area, and this would have affected the even tempo of life of the community.
[265E F] 259 l.(b) The incident in the second ground must also be viewed in the same manner in which the first incident has been construed as indicated above.
It is not as if the demand and the threat following it were made against Ashok Kumar in an isolated manner.
On the other hand, the demand had been made as part of a scheme to extort money from all the shopkeepers under a threat that their continuance of business and even their lives would be in danger if chauth was not paid.
This demand would have certainly made all the shopkeepers in that locality feel apprehensive that they too would be forced to make payments to the petitioner.
and that otherwise they would not be allowed to run their shops.
[265G H; 266A B] l.(c) In so far as the incident in the third ground is concerned, the petitioner is stated to have taken a revolver with him and threatened all the shopkeepers in the market, that if anyone failed to pay 'chauth ' he would not be al lowed to open his shop and he would have to face the conse quences.
This incident cannot be considered as merely caus ing disturbance to the law and order situation but must be viewed as affecting the even tempo of life in the market.
[266B D] l.(d) Whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community.
In other words if the reach and effect and potentiality of the act disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order.
[266E, G] In the instant case, it cannot be said that the demands made and threats given by the petitioner to the contractors and shopkeepers as mentioned in the three grounds would have its reach only to the limited extent of affecting the law and order situation, and not go so far as to affect the maintenance of public order.
[267E] Dr. Ram Manohar Lohia vs State of Bihar, ; ; Arun Ghosh vs State of West Bengal, ; Nagendra Nath Mondal vs State of West Bengal, ; ; Nandial Roy vs State of West Bengal, referred to and Gulab Mehra vs State of U.P., [1987] IV SCC 302, distinguished.
It is not possible to accept the contention that third incident referred to in the grounds of detention is a concocted altair.
The records go to show that H.C. Khajan Singh had promptly reported the incident at the police station and the truth of his report had been verified by Inspector R.C. Verma.
[267H; 268A] 260 State of U.P. vs Kamal Kishore Saini, ; at 213 referred to.
Though the Advisory Board had permitted the detenu to appear along with a friend the detenu had failed to take a friend with him.
He did not also represent to the Advisory Board that he did not have adequate time to get the services of a friend and that he required time to have the services of a friend.
Such being the case, he cannot take advantage of his own lapses and raise a contention that the detention order is illegal because he was not represented by a friend at the meeting of the Advisory Board.
He did not also choose to represent to the Advisory Board that he was not given sufficient time to secure the service of a friend.
[271C D; 272B] 4.(a) The Central Government had in fact considered the report sent by the State Government under section 3(5) of the Act, and saw no reason to revoke the detention order in exercise of its powers under section 14.
[272D] 4.(b) The petitioner was absconding and proclamations were made under sections 82 and 83 Cr.
P.C. and it was only thereafter the petitioner had surrendered himself in Court.
The challenge to the detention order on ground of delay in arrest is not sustainable.
This is not a case where the petitioner was freely moving about but no arrest was effect ed because his being at large was not considered a hazard to the maintenance of public order.
[272F]


judgement:
Appeal No. 398 of 1956.
Appeal from the judgment and order dated March 19, 1956, of the Bombay High Court in Appeal No. 45 of 1955, arising out of the judgment and order dated March 23, 1956, of the said High Court in its Ordinary Original Civil.
Jurisdiction in Suit No. 468 of 1951.
M. C. Setalvad, Attorney General for India, N. P. Nathwani, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellants.
Purshottam Tricumdas, K. K. Desai and I. N. Shroff, for the respondents.
March 31.
The Judgment of the Court was delivered by 348 BHAGWATI J.
This appeal with a certificate of fitness is directed against the judgment and decree passed by the High Court,of Judicature at Bombay in appeal from its ordinary Original Civil Jurisdiction confirming, though on different grounds, the judgment and decree passed by a single Judge of that High Court in Suit No. 468 of 1951 instituted by the appellants (Original Plaintiffs) to recover from the respon dents (Original Defendants) a sum of Rs. 1,80,099 8 0 with interest and costs.
Since the year 1932 the first appellant has been a member of the East India Cotton Association Ltd., (hereinafter referred to as " the Association " ) as the sole 'proprietor of the firm of Messrs. Narrondass Manordass There in after referred to as "the member firm").
The first appellant along with other partners carried on business in partnership in Bombay inter alia as Cotton Merchants and Commission Agents in the name and style of Messrs. Narrondass Manordass, the 2nd appellant (hereinafter referred to as " the partnership firm ").
The respondents are a partnership firm and also a member of the Association.
Between September 23, 1947, and December 10, 1947, the member firm sold to the respondents 2,300 bales of Broach Vijay Fine 3/4" Navsari and/or Bardoli 7/8" Cotton for March/April 1948 Delivery.
Out of these 2,300 bales, 1,100 bales were disposed of by means of " Havalas " and in respect of the remaining 1,200 bales, there were cross contracts.
In the result when the time for " Delivery " arrived, sales in respect of 700 bales remained outstanding and the member firm was liable to give delivery of 700 bales to the respondents.
As however, the member firm failed to give delivery of the said 700 bales to the respondents, under the relevant by laws of the Association, the respondents " Invoiced Back " these 700 bales to the member firm on May 3, 1948, and as a result of this " Invoicing Back " a sum of Rs. 1,07,530 8 0 became due and payable by the member firm to the respondents and with regard to the transactions of all the 2,300 bales taken together an aggregate sum of Rs. 1,79,749 8 0 became due and payable by the 349 member firm to the respondents.
In respect of this sum of Rs. 1,79,749 8 0, the respondents sent to the member firm eight separate " Debit Notes " in respect of varying amounts and finally a consolidated debit note for Rs. 1,79,749 8 0.
It appears that the contract notes in respect of these transactions had been signed by one Ramanlal Nagindas who had been employed as a salesman in the Ready Cotton Department of the partnership firm.
The appellants contended that the said Ramanlal Nagindas had no authority to enter into the said transactions or to sign contract notes in respect thereof on behalf of the appellants and also that the said contracts were not in accordance with the by laws of the Association and they therefore denied their liability in respect of the said transactions.
The partnership firm, however, as the beneficiary under the said contracts decided to pay the amounts claimed by the respon dents without prejudice to the rights and contentions of both the parties.
On May 7, 1948, the said sum of Rs. 1,79,748 8 0 was paid by the partnership firm and was received by the respondents in terms of the letter addressed by the respondents on the said date: "The payment is made by you and accepted by us without prejudice to the rights and contentions of both the parties in respect thereof.
" A further sum of Rs. 350 being the amount of penalty for the alleged failure to tender the aforesaid 700 bales of the said contracts of Broach/Vijay March/April 1948 Delivery, was also paid by the partnership firm to the respondents on June 6, 1948, without prejudice to their aforesaid contentions.
The said Ramanlal Nagindas had entered into similar transactions with several other merchants and some of them claimed arbitration under by law 38 A of the Association.
Petitions were thereupon filed by the member firm in the High Court at Bombay being Petitions Nos.
A/51, A/52, A/55 and A/56 of 1949 under section 33 of the Indian Arbitration Act inter alia for a declaration that there existed no valid and enforceable arbitration agreement between the parties.
Mr. Justice Shah delivered judgment in the said petitions 350 on August 20, 1950, holding inter alia that the said contracts were void as being not in accordance with the by laws of the Association and allowed those petitions.
The respondents to the petitions thereupon filed petitions under article 136 of the Constitution for special leave to appeal to this Court against the said judgment of Mr. Justice Shah.
These petitions were, however, dismissed by this Court on or about April 6, 1951.
The appellants thereafter by their attorney 's letter dated May 2, 1951, called upon the respondents to return the said sum of I Is.
1,80,099 8 0 (being the aggregate of the said two sums of Rs. 1,79,749 8 0 and Rs. 350.) with interest thereon at the rate of 6 per cent.
per annum.
The respondents failed and neglected to pay to the appellants the said sum or any part thereof with the result that on May 7, 1951, the appellants filed the suit against the respondents for repayment to them of the said sum with interest and costs.
In the plaint as filed the appellants averred that the said contracts were void under the Bombay Cotton Contracts Act, 1932, as being not in accordance with the by laws of the Association inter alia in the following respects: (1) The contract notes produced by the respondents omitted to state the difference of Rs. . above or below the settlement rate of hedge contracts for the purpose of periodical settlements as required by by laws 139 and 141; and (2) no provision was made in any of the aforesaid contract notes with regard to the measurement of bales as required by the official form for delivery contracts prescribed in bylaw 80.
The respondents in their written statement contended that there was no by law which required any person to agree upon any difference above or below the settlement rate of hedge contracts for the purpose of periodical settlements and to state the same.
They further contended that the relative provisions contained in the official contract form had become obsolete as at all material times there were no hedge contracts bearing different numbers and in practice the said contracts were not put through periodical settlements.
351 They also contended that at all material times there was no by law which required any person to agree upon any specific measurements in respect of the bales agreed to be purchased inasmuch as the operation of by law 101 in regard thereto had been suspended by the Board since November 30, 1942.
After the suit reached hearing the appellants amended the plaint by averring that by reason of the said payments having been made by them and accepted by the respondents without prejudice to the rights and contentions of both the parties there was an implied agreement between them that in the event of the appellant 's establishing that they were not bound to pay the said sums to the respondents and that the respondents were not entitled to the payment thereof the respondents would repay or return the same to the appellants.
This plea was traversed by the respondents in the supplemental written statement which they filed.
The learned trial Judge followed the judgment of Mr. Justice Shah and held that the omission of the clause regarding measurement in the contract notes did not alter the character or legal effect of the contracts.
He similarly held that the omission of any reference in the contracts to the amount of difference above or below the settlement rate of hedge contracts in the last term of the contract notes rendered the contracts void.
He however was of the opinion that there was no implied agreement between the parties of the nature alleged by the appellants and that the payment made by appellants to the respondents was voluntary and therefore dismissed the appellants ' suit with costs.
The appellants preferred ail, appeal against this decision and the appellate Court dismissed the appeal and confirmed the decree passed by the learned trial Judge, though on different grounds.
The appellate Court agreed with the learned trial Judge that the omission of the term regarding measurement in the contract notes did not affect the character or legal affect of the contracts.
In regard to the omission to fill up the difference above or below the settlement rate 352 fixed for the hedge contracts in the last clause of the contract notes, however, the appellate Court was of the opinion that there was no obligation on the parties to agree to add or deduct the difference above or below the settlement rate as contended by the appellants.
If the parties did agree then the contract form provided that the agreement should be set out therein.
If, however, they did not agree then the first part of cl.
(2) of by law 141 would come into play and the settlement of the delivery contract would go through on the basis of the settlement rate of the hedge contract.
The omission to fill up the difference was thus of no consequence and did not invalidate the contracts.
The appellate Court also differed from the trial Judge on the question of the implied agreement and held that if the appellants succeeded in establishing that the respondents were not entitled to receive the payments the respondents were bound to repay the sums paid by the appellants to them.
In view, however, of the conclusion reached that the contracts were not void, the appellate Court dismissed the appeal.
The provisions of the Bombay Cotton Contracts Act, 1932 (Bom.
IV of 1932) and the by laws of the Association which fall to be considered by us may now be referred to: Section 8(1) (Bombay Cotton Contracts Act, 1932): " Save as hereinafter provided in this Act, any contract (whether either party thereto is a member of a recognized cotton association or not) which is entered into after the date on which this Act comes into operation and which is not in accordance with the by laws of any recognized cotton association shall be void.
" By law 80 of the Association: " Forward contracts between members how made: Delivery Contracts between members shall be made on the official form given in the Appendix.
Hedge contracts between members may be verbal or in writing and when in writing shall be in one or other of the forms given in the Appendix.
Whether verbal or written all contracts shall be subject to the by laws, 353 provided that in the case of Delivery Contracts By laws 149 to 163 inclusive shall not apply.
The specimen of the official contracts form in triplicate as used in 1947 48 (Vide Exhibit " D ") contained the following terms amongst others: No. Contract Note From Brokers To Messrs. . . . .
We have this day bought by your order and for your account subject to the By laws of the East India Cotton Association Ltd. From Messrs. (. ) bales of Cotton at Rs. per candy, delivered in Bombay in full pressed bales.
Measurement. tons/per 100 bales.
(For delivery contracts only).
for the purpose of periodical settlement of this contract we agree to a difference of Rs. above/below the settlement rate of hedge contract No. Remarks. Bombay. 194 No. Contract Note From Brokers To Messrs. . . . .
We have this day sold by your order and for your account subject to the By laws of the East India Cotton Association Ltd. To Messrs. (. ) bales of. Cotton. at Rs. per candy, delivered in Bombay in full pressed bales.
Measurement. tons/per 100 bales.
(For delivery contracts only).
For the purpose of periodical settlement of this contract we agree to a differ ence of Rs . above/below the settlement rate of hedge con tract No. Remarks . Bombay . 194 The contract notes which are rendered between the member firm and the respondents, however, contained no term as to measurement and so far as the last clause was concerned the blanks in regard to the difference of Rs. above or below the settlement rate of hedge contract No. were not filled in.
The relevant by laws in connection with these two terms contained in the official contract form were by law 101, and by laws 139 and 141: By law: 101.
Claims for excess measurement.
In respect of all Forward Contracts, measurement 45 354 shall approximate 13 1/2 tons per 50 bales provided that in respect of Forward Contracts, other than Hedge Contracts, the parties may agree upon any other measurement.
In all Forward Contracts, for any port the rate or rates of freight for any excess measurement over 13 1/2 tons per 50 bales shall be fixed by the Board from time to time and unless otherwise fixed the rate for such excess for all ports shall be Rs. 15 per ton in respect of each lot of 50 bales measuring more than 13 1/2 tons but not more than 14 1/2 tons and in respect of each lot of 50 bales measuring more than 14 1/2 tons Rs. 35 per ton for any excess over 13 1/2 tons.
No allowance for excess measurement shall be payable by the seller: (a) unless the buyer has given to the seller reasonable notice fixing an appointment for measurement, or (b) unless the buyer submits a claim to the seller within 6 weeks after the complete lot has been weighed over.
The Board shall have power from time to time and at any time to suspend the operation of this Bylaw as regards measurements.
By law: 139. "Settlement Days.
All Delivery Contracts other than those excepted under By laws 136 and Hedge Contracts shall be subject to periodical settlements through the Clearing House and in every case the parties to the contract must be members of the Association.
Settlements of differences due on open contracts and of other liabilities to be settled through the Clearing House shall be made once weekly on days which shall be fixed by the Board and notified in a calendar to be published annually.
The day on which Balance Sheets are required to be submitted to the Clearing House shall be known as Settlement Day.
" By law: 141.
Settlement rates. (1) For the purpose of these settlements, settlement prices for all positions of the Hedge Contract shall be fixed by the Board on or about the third working day immediately preceding Settlement 355 Day.
The prices so fixed shall be I P. M. prices on the day of fixation.
(2)In the case of Delivery Contracts, the settlement price of the Hedge Contract shall be the basis for the periodical settlement.
Such allowances as shall be agreed upon by the parties in their contract to cover any difference, between the cotton contracted for and the cotton which is the basis of the Hedge Contract shall be added to or deducted from the said settlement price.
In the case of contracts for descriptions which are not tenderable against the Hedge Contract the parties may either agree in their contract upon an allowance above or below the Hedge Contract for the purpose of their periodical settlement or may apply to the Board to fix settlement rates.
. . . . . . . . . . .
The only question for our determination in this appeal is whether the contracts between the parties were not in accordance with the by laws of the Association and therefore void.
There is no doubt that all the contracts were subject to the by laws of the Association.
The question still remains whether they were in accordance with the by laws because if they were not in accordance with those by laws they would be void.
The expression " not in accordance with " has been the subject of judicial interpretation in Radhakisson Gopikisson vs Balmukund Ramchandra (1).
Their Lordships of the Privy Council there held that the form prescribed was not a stereotyped one and that literal compliance with it was not essential.
The only thing required was that the contract notes must contain all the terms and conditions set out in the form in order to comply with it.
Their Lordships were of the opinion that substantial compliance with the form would be enough and if such sufficient compliance with the by laws was found in a particular case that would save the contracts from being declared void as not being in accordance with the by laws.
It was, however, urged on behalf of the appellants that by law 80 prescribes the form in which the contracts were to be entered into and all the terms and (1) (1932) L.R. 60 I.A. 63.
356 conditions incorporated in the official contract form had to be strictly complied with, that the omission of the term as to measurement as also the omission to fill in the blanks in regard to difference of Rs. above or below the settlement rate of hedge contract No. . . . were such departures from the form prescribed as would render the contracts void because it could not be then said that there was sufficient compliance with the statutory form.
Reliance was placed in support of this contention on Burchell vs Thompson (1), Ex parte Stanford, In re Barber (2), Thomas vs Kelly (3) and Parsons vs Brand & Cols vs Dickson (4).
The principle emerging from these decisions was enunciated to be that if the document executed by and between the parties departed from a characteristic part of the form prescribed or made a difference in the legal effect of the instrument, it would not be in accordance with the form and would therefore be void.
It would all depend upon the materiality of the particular term which is incorporated in the form.
If the non compliance with the requirements of the form were such as to make the document something else by reason of a characteristic part of the form not being followed or the document would lose some legal effect which it would have had if the proper words had been inserted therein, it cannot be said that there is sub stantial compliance with the statutory form.
Considering the term as to measurement in this light, it appears that the same had its basis in the requirements of the trade in regard to the pressing of the bales.
The bales which were the subject matter of these forward delivery contracts were either meant for transport within the country or export outside the country.
The bales were to be fully pressed so as to occupy the minimum space either in transport by rail or by steamer and initially they were bound with hoops.
The baling hoops were however difficult to obtain from Japan and therefore the bales came to be bound with ropes made of cotton, jute coir and hemp.
The bales thus bound otherwise than with hoops (1) (3) (4) , 357 occupied more space and difficulties were encountered by the merchants because of their being obliged to pay extra insurance and freight charges in respect of such bales.
Not only did the railways charge more for the transport of such bales, the shipping companies also did so and the insurance companies charged higher rates for insurance because the bales were not pressed in a manner which would minimise the risks of insurance.
All these factors brought about a situation creating difficulties between the purchasers and the sellers of cotton and these difficulties had to be resolved by the Association.
by law 101 had proceeded on the basis of cotton bales being bound with hoops, the approximate measurement in tons as agreed and understood in the trade being, 13 1/2 tons per 50 bales.
That was the standard measurement.
It was open however to the parties to agree upon any other measurement.
If any measurement other than the standard measurement was agreed to, an adjustment had to be made by reason of such difference in measurement and by law 101 provided that certain amount therein specified had got to be paid by the seller to the purchaser as and by way of allowance for such excess measurement.
Towards October, 1942, the situation in regard to the baling hoops deteriorated so much that it was thought desirable that bales bound with ropes should be permitted to be tendered under the by laws of the Association and that the operation of by law 101 as regards measurements should be suspended.
There were heavy fluctuations in the prices of the materials permitted to be used, and it was therefore thought advisable to fix certain allowances from time to time or before the beginning of the delivery periods taking into consideration the extra insurance and freight charges, if any, in respect of such bales.
A sub committee appointed by the Association made a report in this behalf on October 29, 1942, and on November 20 1942, the Board of Directors of the Association passed a resolution approving the recommendations of the subcommittee with this modification that the allowance to be prescribed in the price of bales bound with ropes 358 as against the price of bales bound with hoops as provided in by laws 96 and 119, be fixed before the commencement of the season and not be altered from time to time.
The Board of Directors issued a notice on November 30, 1942, suspending the operation of bylaw 101 as regards the measurement until further notice.
The position as it obtained at the time when the suit contracts were entered into was that by law 101 as regards measurement had been suspended and there was no necessity so far as the by laws went to make any mention in the contracts in regard to the same.
If the claim for excess measurement had not to be entertained, it was not at all necessary to mention the measurement in the contract forms and there would be substantial compliance with the contract form, even though no measurement was mentioned therein, the very basis for the mention of such measurement having disappeared.
It was, however, urged on behalf of the appellants that measurement was an essential part of the description of the goods sold and the suspension of by law 101 made it all the more necessary that the measurement should be specified in the contract form itself.
The standard measurement which had been mentioned in by law 101 had disappeared and it would therefore be necessary to mention in the contract form what was the measurement on the basis of which the price of the contract had been fixed by and between the parties.
If the bales actually tendered measured more in weight than what was actually agreed upon, the purchaser would be entitled to obtain from the seller an allowance for such excess measurement and that was the reason why it was necessary after the suspension of by law 101 to mention the agreed measurement between the parties.
This argument however ignores the fact that simultaneously with the suspension of the operation of the by law 101, by laws 96 and 119 which referred to forward and hedge contracts respectively were altered and provision was made therein to incorporate measures consequent upon the tender of bales bound with ropes 359 in place of bales bound with hoops.
The consequences of such tenders were worked out in the by laws as thus amended and allowances in the price of bales bound with ropes as against the price of bales bound with hoops were also provided for.
These allowances were in accordance with the resolution of the Board dated November 20, 1942, to be fixed before the commencement of the season and if such allowances were provided for there was nothing further to be done in regard to the difference in measurement, if any.
If the situation which obtained after November 20, 1942, provided for a tender of bales bound with ropes instead of bales bound with hoops in fulfilment of the contracts entered into between the parties, that was well known to all the members of the Association and it was open to them while fixing the prices themselves to take count of the extra charges for insurance and freight which would be payable by the purchaser in the event of bales bound with ropes being tendered instead of bales bound with hoops.
It, therefore, follows that the omission to mention the measurements in the contract notes did not render the contracts not in accordance with the by laws.
There was no such by law in operation at the time and even otherwise there was no need whatever to incorporate in the contract notes any term as to measurement.
It could not therefore be said that there was any departure from an essential or a characteristic part of the contract form or that the legal effect of the contracts was changed so as to invalidate the same.
When we come to the term in regard to the differences of Rs. . . above or below the settlement rate of hedge contract No. . . we find that that had reference to periodical settlements of contracts through the clearing house.
In accordance with bylaw 139 all delivery contracts other than those excepted under by law 136 and hedge contracts were subject to periodical settlements through the Clearing House which settlements had to be made once weekly on days fixed by the Board.
If the contracts had got to go through the clearing house in this manner it was necessary also that settlement rates should be fixed 360 and by law 141(1) provided that settlement prices for all positions of the hedge contract should be fixed by the Board.
The settlement prices thus fixed were to be taken as the basis for the periodical settlement of delivery contracts and it was further provided in bylaw 141(2) that such allowance as shall be agreed upon by the parties in their contracts to cover any difference between the cotton contracted for and the cotton which was the basis of the hedge contract shall be added to or deducted from the said settlement prices.
This was the basis of the provision contained in the relevant term of the contract form.
In the case of contracts for descriptions not renderable against the hedge contract it was open to the parties either to agree upon an allowance above or below the hedge contract or they would make an application to the Board to fix the settlement rates.
Whenever there was an agreement in this behalf the parties were to mention the difference thus agreed into the contract form and the periodical settlements of delivery contracts were to be effected on that basis.
The question arises as to whether the parties were bound to enter into any such agreement at the time they entered into the contracts.
It was contended on behalf of the appellants that such an agreement was necessary because it would otherwise involve the parties into payment of large sums of money on the settlement day next after the day of the contract.
The hedge contracts appertained to cotton of the lowest average and if the quality of cotton which was the subject matter of the contract between the parties was, as was usual, of a higher variety, it would involve the payment of large amounts by way of differences on the next settlement day, which certainly would not be within the contemplation of the contracting parties.
If that was so, the parties would agree to a difference between the rates of the cotton contracted for and the cotton which was the basis of the hedge contract and this difference above or below would serve to minimize the incidence of such payment on the next settlement day.
It was, therefore, submitted that it was incumbent on the parties when entering into a contract to 361 fill in this term as to differences.
If they agreed upon such differences the blank had to be filled in accordingly; but even though they did not agree upon any such differences, it was necessary for them to mention in the contract form that the difference above or below the rate of the hedge contract agreed upon by them was nil.
It was contended on the other hand on behalf of the respondent that there was no obligation on the parties entering into the contract to fill in that term.
If they agreed upon the difference all well and good but if they did not agree upon the difference, the first part of by law 141(2) stepped in and the consequences had to be worked out as if there was no agreement and the differences had to be paid on the settlement day next ensuing on the basis of the difference between the contract rates and rates of hedge contract, even though it may involve a payment of a substantial amount all at once.
According to this submission, in the case of contracts for descriptions tenderable againt the hedge contract two positions arose: viz., (1) parties to the contract may not agree to any difference in which case it would not be necessary to fill in that term in the contract note or (2) they may agree to the difference in which event the difference would be mentioned in the contract note.
In the case of contracts for descriptions which were not renderable against the hedge contract three positions would arise, viz., (1) the parties may not agree upon any difference in which event it would not be necessary to fill in the term as to difference in the contract notes; (2) the parties may agree upon such difference and that would have to be mentioned in the contract notes or (3) the parties could apply to the Board to fix the settlement rates.
It appears that the contention urged on behalf of the appellants would be more in consonance with business idea, , because no business man would think of immediately forking out a large sum of money on the next ensuing settlement day.
It would be tantamount to paying the price of the goods or a substantial part thereof long before the due date of delivery ever 46 362 arrived.
While recognizing the necessity of arriving at an agreement in this manner we are, however, not impressed with the argument that in the event of no such agreement as to the difference having been reached it would even so be necessary to mention in the contract note that the difference agreed upon was nil.
When the parties entered into the transactions all the terms and conditions of the contract would certainly be negotiated and agreed upon between them.
It would be open to them, in view of the by laws above referred to, to agree upon the difference above or below the settlement rate of hedge contracts for the purpose of facilitating the settlements through the clearing house.
But if no such difference above or below the settlement rate of hedge contracts were agreed upon between the parties, it would not necessarily follow that the word nil had got to be mentioned in the contract notes.
The very fact that no difference above or below the settlement rate of hedge contracts was agreed upon in the manner contemplated would be enough to spell out an agreement that no such difference was to be computed in arriving at the settlement rates in respect of these contracts.
If that was the true position it would be Superfluous to write the word " nil " as contended for by the appellants and the consequences, of such non mention would be the same as if the difference agreed upon was nil.
By law 141 (2) could then be worked out without any difficulty and the settlement rates in the case of delivery contracts would be fixed on the basis of the settlement price of the hedge contracts taking into account the facts that there was either no difference which was agreed upon or that the difference agreed upon was a specific one which was mentioned in the contract notes.
It was however pointed out on behalf of the respondents that the official contract form contained the expression " above/below the settlement rate of hedge contract No. .
Even though this may have been in consonance with the position as it obtained when the hedge contracts of five different varieties were in vogue, involving the specification of hedge contracts as Nos.
I to 5, that position substantially chanced 363 when hedge contracts of these 5 varieties were abolished and in their place and stead was substitute, a hedge contract called the 1.
The five varieties of hedge contracts were also for different deliveries which did not necessarily coincide one with the other and these contracts were not on the market all at one time, With the result that it would be necessary if the requirements of the contract form had to be complied with to fill in the blank not only by describing the hedge contract number, whether it was one or the other of the numbers I to 5 but also the particular hedge contract of a particular delivery.
Even if it may be assumed that the blank to be filled in in this behalf required a mention not only of the hedge contract No but also of a particular delivery thereof, all that went by the board when the I. C. C. was substituted in place of the hedge contract Nos.
I to 5.
The old contract form which had been prescribed by by law 80 was continued without any change being effected therein by virtue of such substitution and if at all the parties to a contract were to fulfill the requirements of the contract form, it would be necessary for them to strike out the words " hedge contract No and put in their place and stead the word " 1. C. C. " Even there the 1.
C. C. appertained to different deliveries which were not on the market all at one time.
The months of delivery were nowhere required to be filled in in the contract form, whether the contract form required the parties to have regard to the hedge contract No or the I. C. C., and to that extent, it can be said that the parties were expected to rely upon their commonsense and the practice of the trade as to what particular delivery was contemplated when the contracts were entered into between them.
All this goes to show that the parties to the contract were not tied down to a literal compliance with the terms contained in the official contract form but were required to act according to the position as it then obtained and if they substantially complied with the requirements of the contract form that was enough.
If the hedge contract No was not in vogue in the 364 market they need not conform to that provision in the official contract form but could make the necessary changes in accordance with the type of hedge contract which was then in vogue.
Similarly, they would have to record in the contract form the agreement reached between them in regard to the difference of Rs. above or below the settlement rate of the hedge contract No. if they came to a particular agreement in that behalf.
if, however, no such agreement was reached between the parties and here the effect of no agreement having been arrived at in regard to such difference would be the same as if the agreement between them was that the difference was to be nil no mention need be made of such difference in the contract form.
The result of either of the two latter positions would be that if the contracts were to pass through the Clearing House the settlement rates would be determined on the basis of the settlement price of the hedge contract fixed by the Board for those various settlements and the parties would have to pay to or receive from one another the differences calculated on the difference between the contract rates and those settlement rates.
The whole of this discussion, however, is academic by reason of the fact that in practice delivery contracts were not put through any periodical settlements and at all material times the operation of this term in the official contract form ' had become obsolete.
This position was not disputed on behalf of the appellants and their counsel stated before the Court that he did not wish to dispute the fact that delivery contracts were at no time submitted to periodical settle ments in the Association.
The effect of this procedure being adopted in the Association was tacitly to suspend the operation of these by laws as to periodical settlements in respect of delivery contracts and it would be superfluous, nay absurd, on the part of the business people entering into contracts subject to the by laws of the Association to incorporate in the contract form provisions which had become obsolete.
If the contracts were not to pass through the periodical settlements in the Clearing House no question would 365 ever arise of settlement rates requiring to be fixed, much less of the basis of such settlement rates being determined, or of the difference of Rs. above or below the settlement rate of hedge contracts being ever agreed upon between the parties.
If under those circumstances, the parties did not fill in those blanks which required to be filled in in the official contract form on the basis of by laws 139 and 141 being in operation, it could not be said that they had failed to substantially comply with the requirements of the official contract form.
The official contract form had to be filled in so far as it was practicable.
The operation of these by laws was in effect suspended and by the tacit understanding of the trade they were to be treated as if they did not exist.
It could not therefore be urged that the parties were put to the necessity of agreeing to such differences, if having regard to the circumstances that prevailed, it was impracticable to do so and if these blanks were not filled in as originally contemplated the contract notes could certainly not be impeached as being not in accordance with the by laws of the Association.
It was, however, urged on behalf of the appellants that if the parties to the contracts intended not to comply with the requirements of by laws 139 and 141 that would by itself vitiate the contracts because in that event the contracts would certainly be not in accordance with the by laws of the Association.
The parties in that event intended to perpetrate an illegality at the very inception of the contracts and the contracts were therefore void.
There is considerable force in this argument but we do not feel called upon to consider the same in view of the fact that that was not the ground on which the validity of the suit contract was challenged in the plaint.
We are therefore of the opinion that the omission to fill in those blanks in the contract notes did not spell any departure from an essential or a characteristic part of the contract form nor was the legal effect of the contracts in any manner changed thereby rendering the contracts void within the meaning of section 8 of the Bombay Cotton Contracts Act, 1932.
366 Both these grounds of attack against the validity of the contracts in question therefore fail and we are of the opinion that the contracts entered into between the appellant, , and the respondents were not void as alleged.
The appellants were therefore not entitled to recover from the respondents the said sum of Rs. 1,80,099 8 0 or any part thereof as alleged or at all and we are of the opinion that the appellate Court was right in rejecting the appellants ' claim.
We cannot part with this appeal without observing that the whole difficulty has been created by reason of the Association not having made the necessary alterations in the contract form in accordance, with the situation as it obtained.
from time to time.
When by law 101 was suspended in operation the Association ought to have deleted the term as to measurement from the contract form.
When the by laws 139 and 141 were virtually abrogated by reason of the delivery contracts not being subjected to periodical settlements in the Clearing House, the Association ought to have similarly deleted the last clause from the official contract form which required the difference of Rs above or below the settlement rates of hedge contract No to be filled in by the parties.
Equally untenable west he retention of the expression " Hedge Contract No when the five different varies of hedge contracts were abolished and one hedge contract named 1.
C. C. was substituted therefor.
We fully endorse the observations made by the appellate Court in the course of its judgment: " We have had occasion to point out in the past how badly the by laws of the East India Cotton Association are drafted and how clumsily the forms also settled, and the present form is an illustration of what we have had occasion to say in the past.
" The manner in which the official contract form which had been settled when the by laws of the Association came first to be promulgated has been retained in its pristine glory in spite of the various changes made in the operation of the by laws and the practice of the trade only enhances the difficulties of the parties and enables the parties who are so minded to raise all 367 sorts of disputes tenable or otherwise in order to avoid their liability in respect of the transactions effected by them in the Association.
It may be hoped that the Association will take effective steps to bring the official contract form in conformity with the bylaw,% in operation from time to time and the practice of the trade prevailing in the Association.
The result therefore is that this appeal fails and must stand dismissed with costs throughout.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Sub section (1) of section 8 of the Bombay Cotton Contracts Act, 1932, provides: " Save as hereinafter provided in this Act, any contract . which is entered into after the date on which this Act comes into operation and which is not in accordance with the by laws of any recognized cotton association shall be void ".
In respect of the transactions in cotton entered into between the parties, the appellants had to pay the respondents a sum of money for failure to give delivery of the cotton bales under the 347 contracts, but the payment was made without prejudice to the rights and contentions of the parties.
Subsequently, the appellants sued the respondents for recovery of the amount on the footing that the contracts were void under section 8(1) of the Bombay Cotton Contracts Act, 1932, as being not in accordance with the by laws of the East India Cotton Association Ltd., of which both the parties were members, in as much as the contract notes did not company with the terms contained in the official contract form provided by the by laws of Association, by reason of the omission to fill in the blanks relating to measurements and difference above or below the settlement rate.
The respondents contended that the relevant provisions contained in the official contract form bad either become obsolete or were suspended at all material times.
The evidence showed that according to the practice of the trade the parties to the contract were not tied down to a literal compliance with the terms contained in the official contract form but were required to act according to the position as it then obtained and that it was sufficient if they substantially complied with the requirements of the contract form : Held, that in the circumstances of the case the official contract form had to be filled in so far as it was practicable and that the omission to fill in the blanks in the contract notes did not spell any departure from an essential or a characteristic part of the contract form; consequently, the legal effect of the contracts was not in any manner changed so as to render the contracts void as not being in accordance with the by laws of the Association, within the meaning of section 8 of the Bombay Cotton Contracts Act, 1932.
Radhakisson Gopikisson vs Balmukund Ramchandra, (1932) L. R. 60 I. A. 63, relied on.


judgement:
ivil Appeal No. 183 of 1989.
232 From the Judgment and Order dated 4.5.88 of the Rajas than High Court in Writ Petition No. 521 of 1988.
Sushil Kr.
Jain for the Appellant.
C.M. Lodha and R.B. Mehrotra for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
Special leave is granted.
Heard learned Counsel for both parties.
This appeal is directed against the judgment of the Rajasthan High Court whereby the High Court dismissed the writ petition of the appellant challenging the order of the Dean of the Faculty of Engineering of the Jodhpur Universi ty, putting in abeyance the admission of the appellant in the B .E.
Degree Course till further orders.
The appellant is a diploma holder and is serving in the 1 N.M. Engineering College (Faculty of Engineering), Jodhpur since 1976 as an Administrator/Instructor.
In may, 1987, the appellant submitted an application to the Study Leave Com mittee of the University of Jodhpur for study leave for three years enabling the appellant to prosecute his studies in the B.E. Degree Course.
On August 3, 1987, the Study Leave Committee recommended the case of the appellant for the grant of study leave and on August 14, 1987 the Syndi cate of the University accepted the said recommendation and granted study leave to the appellant for a period of three years with full pay.
Pursuant to the leave granted to the appellant, he made an application on November 14, 1987 for admission in the B .E.
Degree Course.
At this stage, it will be pertinent to refer to a reso lution dated September 21, 1970 passed by the Faculty of Engineering recommending that the teachers of the University should be granted leave so as to enable them to join the B.E. Degree Course as a regular candidate on a full time basis.
The said resolution was accepted by the Academic Council of the University on March 25, 1970 and the Syndi cate in its turn approved the resolution of the Academic Council.
According to the appellant, the above resolution of the Syndicate was acted upon and, as a matter of fact, certain teachers of the University were admitted to B.E. Degree Course.
In his application dated November 14, 1987, the appellant specifically mentioned the 233 names of seven teacher candidates who had been admitted to the various Departments of the Engineering College in pursu ance of the above resolution of the Syndicate and the policy of the University.
The case of the appellant is that it is the practice of the University to give admissions to teach ers by creating extra seats in addition to general seats.
The appellant made the application for admission after he had been communicated with the resolution of the Syndi cate granting leave on the recommendation of the Study Leave Committee.
Admittedly, the application was made on November 14, 1987 after the last date for admission in the general seats had expired.
Accordingly to the appellant, he was communicated with the decision of the Syndicate granting study leave to him on October 29, 1987 and soon thereafter he made the application for admission.
It is the case of the appellant that in view of the practice of the University, as the teachers who are granted study leave are admitted by the creation of extra seats, the question of making applications after the last date for admission in the general seats is irrelevant.
Be that as it may, the application of the appellant was forwarded by the Professor and Head of the Mechanical and Engineering Department and the Dean, Faculty of Engineering, to the Vice Chancellor.
The Vice Chancellor referred the application back to the Dean observing that the Dean was competent to make admissions.
Certain objections were raised by the Officer in Charge, Admissions, including the objec tion that the appellant had obtained less than 60 per cent marks in the Diploma Examination passed by him.
The Dean considered the said objections and recommended the case of the appellant for admission to the Vice Chancellor with the following observation: "However, there is another aspect of this case which deserves consideration.
The University has in the past, allowed the teacher candi dates of this faculty, securing less than 60 per cent marks in their Diploma Examinations, admission to B.E. Course.
This was perhaps to encourage the Faculty Staff to improve their qualifications so that they serve the faculty in a better capacity.
With these precedents in view, Shri A.C. Singhvi, Instructor, may be admitted to B.E. Degree course as a very special case.
" 234 The Vice Chancellor, after considering the facts of the case, accepted the recommendation made by the Dean.
Thereaf ter, on January 16, 1988, the order for admission of the appellant was issued by the Dean, Faculty of Engineering, admitting the appellant in B.E. Second Year Engineering Course.
Pursuant to the said order, the appellant deposited the requisite fees on the same date and joined the classes from January 16, 1988.
The appellant was, however, communi cated on February 9, 1988 with an order dated January 20, 1988 of the Dean directing that the appellant 's admission was put in abeyance until further orders.
Being aggrieved by the said order dated January 20, 1988 of the Dean, the appellant filed a writ petition in the High Court and, as stated already, the High Court dismissed the writ petition.
Hence this appeal.
The first objection that was raised to the admission of the appellant was that the appellant had not secured 60 per cent of marks which was the minimum requirement for admis sion.
Indeed, the appellant also stated that he had obtained only 59.72 per cent of marks in his Diploma Examination.
It appears that both the University and the appellant proceeded on the assumption that the appellant had secured in the Diploma Examination less than 60 per cent of marks.
It is the case of the appellant that though for teacher candidates it was not necessary to secure 60 per cent of marks in the Diploma Course yet, according to the computation mentioned in the Admission Circular, the appellant had secured 60 per cent of marks.
The Admission Circular provides as follows: "It is further provided that no such candidate who has secured less than 60% marks in the aggregate in the diploma examination shall be eligible for admission to this programme and the admission will be made strictly on the basis of merit determined by taking the per centage of marks obtained at the three diploma examinations passed as follows: I Year: 40 per cent of marks.
II Year: 60 per cent of marks.
III Year: 100 per cent of marks.
235 The candidates must submit, along with their application, true copies of marks sheets of all the three diploma examinations.
" The appellant secured 21.54 (as per 40 per cent weight age), 36.27 (as per 60 per cent weightage) and 65.18 (as per 100 per cent weightage).
The total comes to 122.99 out of 200.
As per the admission rules, this works out to about 61.5 per cent.
Thus, it appears that the appellant had secured more than 60 per cent of marks in the aggregate in the Diploma Examination and was not disqualified for admis sion in that regard.
The next question is whether the appellant should have been admitted after the last date.
We have referred to the resolution of the Academic Council and the Syndicate with regard to the admission of teacher candidates.
It is, howev er, the case of the University that the said resolution has no effect whatsoever and admissions are governed by the statutes of the University.
There is much controversy wheth er in the past the teacher candidates were admitted in extra seats created over and above the general seats.
The appel lant has referred to certain cases where the teacher candi dates were admitted in additional seats created by the University with a view to giving the teachers an opportunity to acquire higher knowledge which may be used in he 'inter est of the institution and which may raise the standard of teaching.
It may be that the previous policy of the University is not in force and the admissions are governed strictly by the statutes or the admission rules framed thereunder.
In the objections raised by the Officer in Charge, Admissions, it was specifically pointed out that the seats were limited and all admissions were made strictly on the basis of merit list drawn amongst all eligible candidates, and that no preferen tial treatment could be given to anyone including employees of the University (non teaching/teaching) in any discipline in any Faculty.
In spite of that objection, the Dean recom mended for the admission of the appellant.
The Vice Chancel lor also considered the office note, but approved the recom mendation of the Dean.
In consequence of such approval by the Vice Chancellor, the appellant was admitted.
It is urged by Mr. Mehrotra, learned Counsel appearing on behalf of the respondents, that the appellant could not be admitted and his admission was illegal.
There may be some force in the contention of the learned Counsel, but when all facts were before the Uni 236 versity and nothing was suppressed by the appellant, would it be proper to penalise the appellant for no fault of his? The admission of the appellant was not made through inad vertence or mistake, but after considering even all objec tions to the same, as raised by the said Officer in Charge, Admissions, in his note.
The appellant was communicated with the decision of the Dean as approved by the ViceChancellor admitting him to the Second Year B .E. Course.
The appellant deposited the requisite fees and started attending classes when he was told that his admission was directed to be put in abeyance until further orders without disclosing to him any reason whatsoever.
It is curious that although the admission to the B.E. Degree Course of the University is governed by statutes of the University and admission rules, the said resolution of the Syndicate dated December 13, 1970 has also been kept alive.
Neither the Dean nor the ViceChancellor was where of the true position, namely, as to whether the said resolution had become infructuous in view of the statutes and the admission rules.
A teacher candidate is likely to be misled by the said resolution.
It is the duty of the University to see that its statutes, rules and resolutions are clear and unambiguous and do not mislead bona fide candidates.
The University should have revoked the said resolution in order to obviate any ambiguity in the matter of admission or included the same in the statutes as part of the admission rules.
When the appellant made the application beyond the last date, his application should not have been entertained.
But the application was entertained, presumably on the basis of the said resolution of the Syndicate.
The appellant also brought to the notice of the Dean the said resolution and also the implementation of the same by admitting seven teacher candidates.
It is submitted on behalf of the University that it was through mistake that the appellant was admitted.
We are unable to accept the contention.
It has been already noticed that both the Dean and the Vice Chancellor considered the objections raised by the Officer inCharge, Admissions, and thereafter direction for admitting the appellant was made.
When after considering all facts and circumstances and also the objections by the office to the admission of a candi date, the Vice Chancellor directs the admission of such a candidate, such admission could not be said to have been made through mistake.
Assuming that the appellant was admit ted through mistake, the appellant not being at fault, it is difficult to sustain the order withholding the admission of the appellant.
In this connection, we may refer to a deci sion of 237 this Court in Rajendra Prasad Mathur vs Karnataka University and another; , In that case, the appel lants were admitted to certain private engineering colleges for the B.E. Degree Course, although they were not eligible for admission.
In that case, this Court dismissed the ap peals preferred by the students whose admissions were subse quently cancelled and the order of cancellation was upheld by the High Court.
At the same time, this Court took the view that the fault lay with the engineering colleges which admitted the appellants and that there was no reason why the appellants should suffer for the sins of the management of these engineering colleges.
Accordingly, this Court allowed the appellants to continue their studies in the respective engineering colleges in which they were granted admission.
The same principle which weighed with this Court in that case should also be applied in the instant case.
The appel lant was not at fault and we do not see why he should suffer for the mistake committed by the Vice Chancellor and the Dean of the Faculty of Engineering.
In the circumstances, we set aside the judgment of the High Court and also the impugned order dated January 20, 1988 of the Dean of the Faculty of Engineering and direct that the admission of the appellant will continue.
The appeal is allowed.
There will, however, be no order as to costs.
N.V.K. Appeal allowed.

summary/full:
The appellant was a diploma holder and was serving as an Administrator/Instructor since 1976 in an Engineering Col lege.
In May 1987 he submitted an application to the Univer sity for study leave for three years to enable him to prose cute his studies in the B.E. Engineering Degree Course.
The Study Leave Committee recommended the case on August 3, 1987 and the Syndicate of the University accepted the recommenda tion on August 14, 1987 and the appellant was granted study leave for a period of 3 years with full pay.
This order was communicated to the appellant on October 29, 1987.
The appellant submitted an application on November 14, 1987 for admission on the B.E. Degree Course.
This application was made after the last date for admission in the general seats had expired.
The Officer in Charge, Admissions raised cer tain objections to the effect that the appellant submitted the application after expiry of the last date and that he had obtained less than 60% marks in the Diploma Examination passed by him.
The Dean considered the objections and recom mended the case of the appellant for admission to the Vice Chancellor.
Thereafter the order for admission of the appel lant was issued by the Dean, the appellant deposited the fees and joined classes from January 16, 1988.
On February 18, 1988 the appellant was communicated an order dated January 20, 1988 of the Dean directing that his admission was put in abeyance until further orders.
The appellant challenged the aforesaid order of with drawal of his admission, before the High Court unsuccessful ly. 231 In the appeal to this Court, the objections that were raised to the admission of the appellant were that: (1) he had not secured 60% of marks which was the minimum require ment for admission, and (2) that he should not have been admitted after the last date.
The admission it was submitted was illegal.
Allowing the Appeal, the Court, HELD: 1.
The appellant had secured more than 60% of marks in the aggregate in the Diploma Examination and was not disqualified for admission in that regard.
[235B] 2.
When the appellant made the application beyond the last date, his application should not have been entertained.
But the application was entertained presumably on the basis of the resolution of the Syndicate dated December 13, 1970.
The appellant also brought to the notice of the Dean the said resolution and also the implementation of the same by admitting seven teacher candidates.
[236E F] 3.
Although the admission to the B.E. degree course is governed by statutes of the University and admission rules, the Syndicate 's resolution dated December 13, 1970 had also been kept alive.
Neither the Dean, nor the Vice Chancellor was aware of the true position, viz whether the resolution had become infructuous in view of the statutes and admission rules.
The University should have revoked the said resolu tion to obviate any ambiguity in the matter of admission or included the same in the statutes as part of the admission rules.
[236C E] 4.
It is the duty of the University to see that its statutes, rules and resolutions are clear and unambiguous and do not mislead bona fide candidates.
[236D] 5.
When after considering all facts and circumstances and also the objections by the office to the admission of a candidate, the ViceChancellor directs the admission of such a candidate such admission could not be said to have been made through mistake.
[236G] 6.
Assuming that the appellant was admitted through mistake, the appellant not being at fault, it is difficult to sustain the order withholding the admission of the appel lant.
[236H]